~, --- -------------------;;;;:;;;;;--

U.S. Department of .Justice 

Office of Justice Programs 

NatiOl/al il/Slillll(' (JfJl/slic£' 

Local Prosecution of 

Environmental Crime 

U.S. Departmont of Justice 

National Institute of Justice 

143270 

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the oHiclal position or policies of the Natlonal/nstltute of Justice. 

Permission to reproduce this .... material has been granted by 

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to the Nalfonal Criminal JUstice Reference Service (NCJRS). 

Further reproduction outside of the NCJRS system requires permission of the Cllllillill!!iLowner. 

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About the National Institute 

of Justice 

The Nntionallnstitute of Justice, a component ofthe Office 

of Justice Programs, is the research and development 

agency of the U.S. Department of Justice. NIJ was established to prevent and reduce crime and to improve the 

criminal justice system. Specific mandates established by 

Congress in the Omnibus Crime Control and Safe Streets 

Act of 1968, as amended, and the Anti.Drug Abuse Act of 

1988 direct the National Institute of Justice to: 

Sponsor special projects and research and development programs that will improve and strengthen the 

criminal justice system and reduce or prevent crime. 

Conduct national demonstration projects that employ 

innovative or promising approaches for improving 

criminal justice. 

Develop new techl1ologies to fight crime and improve 

crim inal justice. 

Evaluate the effectiveness of criminal justice ])1'0-

grams and identify programs that promise to be successful if continued or repeated. 

Recommend actions that c~m be taken by Federal, State, 

and local governments as well as private organizations 

to improve criminal justice. 

Carry out research on criminal behavior. 

Develo]) new methods of crime preventioll and reduc· 

tion of crime and delinquency. 

TIle National Institute of Justice has a long history of 

accomplishments, including the following: 

Basic research on career crim inals that led to development of special police and prosecutor units to deal with 

repeat offenders. 

• Research that confirmed the link between drugs and 

crime. 

The research and development program that resulted in 

the creation of police body armor that has meant the 

difference between life and death to hundreds of police 

officers. 

Pioneering scientific advances such as the research and 

development of DNA analysis to positively identify 

suspects and eliminate the innocent from suspicion. 

The evaluation of inn ova live justice programs to determine what works, including drug enforcement, com· 

mUllity policing, community anti-drug initiatives, prosecution of complex drug cases, drug testing throughout 

the criminal justice system, and user accountability 

programs. 

Creation of a corrections information-sharing system 

that enables State and local officials to exchange more 

efficient and cost·effective concepts and techniques for 

planning, financing, and constructing new prisons and 

jails. 

Operation of the world's largest criminal justice information clearinghouse, a resource used by State and 

10CHI officials across the Nation and by criminaljustice 

agencies in foreign countries. 

The Institute Director, who is appointed by the President 

and confirmed by the Senate, establishes the Institute's 

objectives, guided by the priorities of the Office of Justice 

Programs, the Department of Justice, and the needs of the 

criminal justice field. 'The Institute actively solicits the 

views of criminaljustice professionals to identify their most 

critical problems. Dedicated to the priorities of Federal, 

State, and local criminal justice agencies, research and 

development at the National Institute of Justice continues to 

search for answers to what works and why in the Nation's 

war on drugs and crime. 
U,S, Department of Justice 

Office of Justi~e Programs 

National Institute of Justice 

Local Prosecution 

NCJRS 

DcC 5 1994 

of Envirollmental Crilne 

by 

Theodore M. Hammett, Ph.D. 

and 

Joel Epstein, Esq. 

June 1993 

IssuesandPractices in CrimillaiJustice is a publication series of the National Institute of Justice. 

Each report presents the program options and management issues in a topic area, based on a 

review of research and evaluation findings, operational experience, and expert opinion on the 

subject. The intent is to provide information to make informed choices in planning, implementing 

and improving programs and practice in criminal justice. 
I 

National Institute of Justice 

Herbert G. Johnson, Esq. 

Environmental Crimes Section 

Michael J. Russell 

Acting Director 

Cheryl Crawford 

Program Monitor 

Advisory Panel 

Dwight Price 

Environment and Natural Resources Division 

U.S. Department of Justice 

Director of Governmental Affairs 

National District Attorneys Association 

99 Canal Center Plaza, Suite 510 

601 Pennsylvania Avenue, N.W. Alexandria, VA 22314 

Washington, DC 20004 

James Prange 

Former Director 

Criminal Investigations Division 

National Enforcement Investigations Center 

Environmental Protection Agency 

Denver Federal Center 

Denver, CO 80225 

Prepared for the National Institute of Justice, U.S. Department of Justice, by Abt Associates Inc., 

under contract #OJP-89-C-009. Points of view or opinions stated in this document are those of 

the authors and do not necessarily represent the official position or policies of the U.S. 

Department of Justice. 

The National Institute of Justice Is a component of the Office of Justice Programs, which also includes the Bureau 

of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, 

and the Office for Victims of Crime. 

_I 
Foreword 

In recent years the criminal prosecu~ion of environmental 

offenders by local authorities has emerged as an important 

element of a national strategy for protecting the environment and the public health. Although the immediate, shortterm effects of environmental crime are often negligible 

or imperceptible, the long-term damage and cost can be 

severe. 

While local criminal enforcement is still in its relative 

infancy in the United States, in the decades to come the 

Nation's district attorneys will represent a potent force in 

environmental prosecution. In its Enforcement Four-Year 

Strategic Plan for the 1990s, the U.S. Environmental Protection Agency called for greater local government involvementin enforcement and promised expanded training 

opportunities and information exchange for district attorneys and investigators. To date, the Environmental Protection Agency and the States have largely taken an administrative and civil approach to environmental enforcement. 

The call for intensified criminal enforcement indicates an 

awareness that the determined offender will not be deterred 

by administrative and civil sanctions alone. 

This report describes the experience of five local prosecutors' offices that have met the challenges posed by environmental crime with robust and coordinated action. Thus far, 

only a relatively small number of local prosecutors are 

known to have given serious and sustained attention to 

environmental crime. The programs described in this report 

represent some ofthe most committed and successful in the 

Nation. 

The report describes the strategies that have been em ployed 

by district attorneys in combating environmental crime. It 

dispels the myths that environm ental cases are too com plex, 

take too much investigative time, cost too much, or are 

beyond the expertise of local authorities. In recent years, 

some progress has been made in enlisting local prosecutors 

and investigators in the battle against environmental crime, 

but the magnitude of the problem requires much broader 

participation. The National Institute of Justice hopes that 

this report will encourage more local law enforcement 

officials to beC'.ome involved in the national struggle against 

environmental crime. 

Michael J. Russell 

Acting Director 

Nlltionlll Institute of Justice 

Foreword 111 
Acl<nowledgements 

Many people assisted us in the preparation of this report. 

Thanks are due especially to the numerous dedicated 

prosecutors, investigators, and regUlatory agency staff 

whom we interviewed during our site visits. In particular, 

we thank David Guthman (Los Angeles County District 

Attorney's Office), Gilbert Jensen (Alameda County 

[California] District Attorney's Office), Jay Magnuson 

(Cook County [Chicago] State's Attorney's Office), 

Donald Mielke (former District Attorney, First Judicial 

District [Golden], Colorado), Robert Honecker (Monmouth County [New Jersey] Prosecutor's Office), and 

Steven Madonna (New Jersey State Environmental Prosecutor, Department of Law and Public Safety). Members 

of our advisory board also provided useful suggestions 

and information. They included Herbert G. Johnson (Environmental Crimes Section, Environment and Natural 

Resources Division, U.S. Department of Justice), James 

Prange (former Director, Criminal Investigation Division, 

National Enforcement Investigation Center, Environmental Protection Agency), and Dwight Price (National District Attorneys Association). 

Cheryl Crawford, our NIJ project monitor, contributed 

valuable advice and assistance throughout the research and 

writing phases. Shealso participated in two oflhesite visits 

At Abt Associates, Dr. Jan Chaiken reviewed drafts of the 

report and made many usefulsuggcstions. Wendy Sanderson 

coordinated production and administration, and MaryEllen Perry and Winn Sinclair produced the document's 

many drafts with patience and grace. Laura Evers prepared 

the camera ready version. 

Theodore M. Hammett, Ph.D. 

Joel Epstein, Esq. 

December 1992 

Acknowledgements v 
Table of Contents 

Foreword .......................•.. a • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• iii 

Acktlowll.'Clgements .•• II •••••••••••••••••••••••••••••••••••••••••••••••••••• , ••••••••••••••••• V 

E,,:.ecutive Summary .•..... 8 , " • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• xi 

Introduction ....... , ..... " ..•............... I ••••••• , • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• xiii 

Endnotes, .... , .. , . , ... 1\ , •••••••••• t •••••••••••••••••••••••••••• , • • • • • • • • • • • • • • • • • • • • • •• xiv 

Part One: 

Environmental Crime and the Current Response 

Chapter 1: Nature and Extent of Environmental Crime ••••••••••••••••••••.••••••••••••.•••••••••• 3 

What Is Environmental Crime? •....•....... 

How Serious Is Environmental Crime? ....•. 

RegionallLocal Variations in Environmental Crime .. 

Extent of Environmental Crime 

3 

7 

7 

8 

Endnotes ....•. , ....•...... . .. 10 

Chapter 2: The State of Criminal Prosecution .................................. It •••••••••••••••• 

The Local Role •...•• 

Endnotes .......•... 

Part Two: 

Developing More Effective Local Prosecution of Environmental Crime 

13 

14 

15 

Chapter 3: An Introduction to the Investigation ana Prosecution of Environmental Crime ••••••••••••••• 19 

Endnotes ...................... i •••••••• ~ •••••••• ., •••••• I , •••••• , •••••••••••••••••••••• , • • 25 

Chapter 4: Initiating a Program •••••••••••••••••.•••.••.••••.• 

The Role of the District Attorney 

The Role of a Major Case •....• ... ••• ,. •• fo'" 

Attracting Attorneys to the Unit •....•••••....•.•••.•.•.... 

Setling the Example ..•...•.•....•... .. . Resource Issues •.••••.. 

Endnote ••••....•... .... ......... . 

•• II! •••••••• ,. •••••••••••••••••• 

... 

........ . ....... " ......... . ....... • •••• f!'" 

. .... , ... " . 

27 

27 

28 

28 

29 

29 

30 
Chapter 5: Internal Organizational Issues .... I! ......... " ••••••••••••••••••••••••••••••• " •••••••• 

Placement of an Environmental Unit within the Office 

Specialization within the Unit/Office •.......... 

Vertical Prosecution •. ............... , ..... . . .......... . 

........ . ... . .. 

. .................... . Endnote ••.•.... , , , • , ................................................................ . 

31 

31 

31 

32 

32 

Chapter 6: Interagency Cooperation ........•.................•.. .. . . . . . . . . . . . . . . . . . . . . . . . . . . •. 33 

Forms ofInteragency Cooperation, , , , , , .. , ••..•..•.•.... 

Law Enforcement and Investigative Agencies ••...•.. , . , •.. 

.............................. 

. ....... ,., .................. . Availability of Investigators within Prosecutor's OfficII ., ••• " ••• , ••••••••• I 

Types of Investigative Expertise Required ........ . ., . Local Police as "Eyes and Ears" ..... . . . .... ~ ...... . . ...... Regulatory Agencies ........•... .... . . ... . ...... The Role of Regulatory Agencies . . ...... Problems of the Regulatory "Mind-Set" .... ...................... , ..... Laboratory Resources .•.••.....•.........•.•. . .. Endnotes ...... , ................................. . . .. " ..... 

33 

35 

35 

35 

35 

36 

36 

38 

40 

40 

Chapter 7: Interjurlsdictlonal Issues ...•......................... 4 • • • • • • • • • • • • • • • • • • • • • • • • • • •• 43 

Sharing Information across Jurisdictional Lines ..•......• 

State-Level Prosecution .•....•.......•.. ....... , /I .... , ........... , •••••• t. 

Federal Activity •••.•... ... , ............ . ............. . .............. 

Endnotes •••...•...... .......... " ... , . ....... ',' 

....... , . . ....... , . 

.... , ... 

43 

44 

46 

46 

Chapter 8: Developing and Trying Cases ••••••••••••••••••••••• , • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• 47 

Sources of Information 011 Environmental Cases . • • • . • • . . • . • • . . . • . • . . . . • . • • • . . • • • • . • . • . . • • • • . • . •• 47 

Civil versus Criminal "Lawsuits ........... __ , . , ................................................ .. .. , ........ " .. 

Overcoming Obstacles to Environmental Prosecution ...••..••..•..•.•.••.•..••.• ....... Prosecutors' ,Attitudes ...••••....•..••.•..••.•••.. . ..................................... , .......... . Defense Attitudes and Tactics .•...•.••.•.•.••..•.•• ........ . ... .. .. I. ........ . 

Attitudes of the Public .•.••.•...•... .. ........................ . • ...... II, •• 

Attitudes of Judges .•.•• ............... , ....... .. ........ .. 

Key Legal Issues ..•. ... , ................................................ , ... .. • ....... l .. .. .. Of ...... . 

Search and Seizure ............................................ t ........ i ..... 't .................................... . 

47 

49 

49 

49 

50 

51 

51 

51 

Establishing the Presence of Hazardous Waste • • . • . . • . • . • . . • • . . . . . . • . • . . • • • • • . . • • . • . • . • • . • •• 53 

State of Mind ReqUired . . . . . . . . . . . . . . . .. . .. .. .. . .. . .. . .. . . . . . . . . . . . .. .. . .. .. . . . . .. . . . .. . .. . . .. . . . . . . . . 53 

Corporate Responsibility ........................................................................... , .. . . . . .. .. . . S4 

Endnotes ................................................................................. , ............. It ~ ......... It 55 
---::'-

Chnpter 9: Trnlning Needs nnd Opportunities •••.•••••.••••••••••••••••••••••••••.••.••••••••••• 57 

Training for Prosecutors ......... , ......... , .............. , ......... , , ... , ........ , .. , ..... . 

Training for Investigators/Regulators .. , ................ , ... , ............ , .................... . 

Cross-Tmining of Criminal Investigators and Regulatory Staff. , ........... . 

Training for Judges ~ , ....... , ................ II •••• , , ••••••• , •••••• ... . . .. , ....... . Endll0tes ... " ............... " ............. , .... , ....... , ...................... . 

Chapter 10: Statutory Issues .......•...........•..................•........................•• 

Environmental Statutes .•...........••..•..•. • ••••••••••••••••••• ,. f •• ' ••••••••• .., . Use of Other Statutes ..... . • , ~ • , •• , ••••••• , ••• , • , •••••••••• t , , . ... Forfeiture ••.......••.. . .. ., •••••••• t •••• " ••••••••••• • •••• , •• , •••• 

Traditional Criminal Statutes ...... , ................. . RICO uws .............................. , .. t ••••• ••••• t •••••• ". •••• ,., •• It.'" 

Cost Recovery Statutes ....•. , ................... OJ •••• , •••••••••••••••••••• • •••••• it •• 

Consumer Protection, Unfair Competition .•.•........•...•......••.••...•.. . ........ . Endnotes ..•...•..• it •••••• , ••••••••••••••• , , •••••••••••••••••••••••• , •• , ........... . 

57 

58 

59 

60 

60 

61 

61 

63 

63 

64 

64 

64 

65 

65 

Glossary ............. II ...................................................... 11 ••• , , , •••••••• 67 

List of Cases ..•.. a , ••••••• , •• , ••• , • , If ••••• If ••••••• If ••••••••• III ••••••••••••••••••••• 'II • • • • • • • • 69 

Appendix A: Federal Environmental Criminal Enforcement Statutes •..••. 

Appendlx]l: Resources for Local Environmental Criminal Prosecution ••• 

............. it, •••••• ., ••••••• ". 

" ....... , ................. . 71 

95 

Appendix C: Sample Environmental Criminal Statutes •.•••••.....•............•....•••..•••••..••. 101 

List of Figures 

Figure 1: Investigation and Prosecution of Environmental Crime •• 0 ••••••••••••• , •• ' •••••••••• it it ••••• 20 

Figure 2: Characteristics of Visited Environmental Prosecution Programs .••••..••..••••••.•••..••••••••. 21 

-------------------------.-----
-

Executive Summary 

Environmental crime is a serious problem for the United 

States. Although the immediate consequences of an individual offense may not be obvious or serious, environmental crimes do have victims. The American public and the 

Nation's environment have suffered and will continue to 

sllfferserious harm from the acts of polluters: death, serious 

illness, injury, and property damage all result from the acts 

of environmental violators. 

As environmental laws covering hazardous waste, toxic 

substances, air, and water have become more complex and 

stringent over the past 20 years, the regulated community 

has found it increllSingly expensive to comply. Thus, there 

has been a growing temptation to save costs by violating 

environmental laws and regulations. While the public 

apparently considers environmental crime, in general, to be 

a serious matter, individual juries may be reluctant to 

convict a community's business leaders and significant 

employers if the alleged environmental damage does not 

have an apparent and immediate deleterious effect. Judges, 

moreover, may consider these cases to be more appropriately handled through administrative or civil channels. 

Finally, environmental offenders and their defense counsel 

are increasingly sophisticated In their methods. All oflhese 

factors represent significant obstacles for prosecutors. Indeed, in part because of these obstacles, relatively ~ittle 

attention has been paid to criminal prosecution of envlronmental offenses. 

A comprehensive and balanced approach to environmental 

offenses is needed, This means involvement by all levels of 

government -locul, State, and Federal- and coordination among the key cognizant agencies - proseculoriul, 

law enforcement, and regulatory. The response rightly 

includes administrative, civil, and criminal remedies. Criminal penalties may I however, offer the most potent deterrent 

effect on potential violators. 

Environmental crime varies fl'Om locality to locality. It 

tends to be driven by patterns orlocal industry and business. 

Local prosecutors and law enforcement agencies may be 

more attuned to the particular problems and needs of local 

communitics. They may respond more quickly to potentlaUy dangerous pollution problems. Local law enforcement and prosecutorial agencies represent critical, but 

hitherto underused, resources in the battle against environmental crime. 

This report is based largely upon site visits to five local 

prosecutors' offices: Alameda County, California; Cook 

County (Chicago), Illinois; Jefferson and Gilpin Counties 

(Golden), Colorado; Los Angeles County, Californif~i and 

Monmouth County, New Jersey. These offices have demonstrated that local prosecutors, with the assistanc'e of law 

enforcement and regulatory agencies, can aggressively and 

successfully pursue environmental offenders. 

Based on the experience of the five local prosecutors' 

programs viSited, as well as a review of relevant literature, 

statutes, and case law, the following steps are recommended. They are intended to help local authorities enhance their resporise to environmental crime. 

• Increased attention and commitment to environmental 

crime by local prosecutors, law enforcement officials, 

and regulators. A strong advocate in the prosecutor's 

office is very helpful but not essential. Smaller offices 

or those without strong advocates at the top for environmental prosecution may be able to tap existing interest 

Hnd expertise to pursue cases. Environmental prosecution can be handled through a separate unit oras part of 

u larger prosecutorial unit; attorneys may have different degrees of specialization. 

Heightened pubUc awareness of environmental crime. 

Local officials can h(~lp to educ.'lte the public about 

environmental crime and encourage citizens to report 

suspected vlolatlol1f.~. 

• More effective inwragellcy cooperation and coordination. 'There are various models of task forces, strike 

forces, and otherarrangements that help bring prosecutors, law enforcement officials, and regulatory agencies together In developing criminal cases. The variations primarUy affect the degree of formalization and 

systematization in interagency relations. Each community must develop [In approach that is bcst suited to 

locnl conditions and personalities. Locallnw enforcement officers can serve as vnluable "eyes and ears" in 

the community. Regulators often naturally focus more 

Executrvo Summary Xl 
on obtaining compliance than on punishing noncompliance, and this can pose problems for cooperation 

among regUlators and prosecutors. On the other hand, 

regulators can play critical roles in investigation and 

preparation of criminal cases, through technical exam ination of sites, collection of sam pIes for laboratory 

analysis, and other activities. 

• Enhallced interjurisdictiollal cooperation. Many environmentalcrimes are com plex and involve activities in 

more than one jurisdiction. In some cases, Federal, 

State, and local officials all have important contributions to make. The U.S. Environmental Protection 

Agency (EPA) funds foul' regional associations intended to improve the investigation and prosecution of 

environmental crimes. Multilevel task forces, often 

coordinated by the U.S. attorney's office, can also 

facilitate cooperation in particular investigations. 

Improved illformation exchange. Task forces and regional associations arc important vehicles for exchange of information on particular investigations as 

well as information of general interest to the field of 

environmental prosecution. Other strategies, such as 

case-law newsletters, brief banks, and pleadings data 

bases are helpful in disseminating valuable professional information to investigators and prosecutors. 

There are a number oflega1 issues critical to environmental prosecution (search and seizure, corporate responsibility, and state of mind) on which prosecutors 

could benefit from regularly updated information. 

• Improved trailling for all key actors if' envirollmelltai 

prosecution. Prosecutors, law enforcement officials, 

and regUlators could benefit from increased training 

opportunities. In particular, Cicross-training" of regulaxII Local Prosecutron of Environmental Crime 

L ____ _ 

tors and criminalinvestigators helps to educate each on 

the primary responsibilities of the other and can foster 

cooperation in investigations. Prosecutors and judges 

are also in need of ongoing training on environmental 

cases. 

• Better laboratory services. A critical element ofalmost 

every environmental prosecution is proving the presence of a hazardous waste or other pollutant. niis 

generally requires laboratory analysis. Many prosecu' 

tors suffer from lack of access to competent, timely 

laboratory services. Many laboratories are overloaded 

with drug cases and other work that relegates environmental cases to a lower priority. Many also lack 

technicians with the requisite training and experience 

to conduct laboratory analyses for environmental cases. 

The EPA's laboratory can assist with some cases but 

has insufficient capacity to cover many local cases. 

Other laboratory services need to bedevelopcd, including use of private laboratories on a contract basis. 

• Improved environmelltal criminal statutes. There is n 

pressing need for consistency and codification of en'llronmentallaws. Presently, there are many inconsistencies across (and sometimes even within) States and 

other1evels of government regardingdefinitlons of and 

criminal sanctions for environmental offenses. This 

makes it possible for many environmental offenders to 

move operations into another jurisdiction where their 

activities are either not covered by criminal laws or 

carry much lighter penalties. In many States, moreover. environmental provisions are s"gttered through 

the statutes and have not been brought together in a 

unified and consistent code. All of these deficiencies 

pose serious problems for prosecutors. 
Introduction 

In 1984, a poll conducted for the United States Department 

of Justice found that Americans believed environmental 

crime to be more serious than heroin smuggling, bank 

robbery, and attempted murder.1 More recently, a 1991 

survey taken by Arthur D. Little discovered that 84 percent 

of Americans believe that damaging the environment is a 

serious crime; the same study found that 75 percent of 

Americans believe that corporate officials should be held 

personally responsible for environmental offenses committed by their films.2 Despite this high rate of public concern 

an1 almost twenty years of regulatory activity, however, 

ground, water, and air pollution still threatens the public 

health and the ecological balance in the United States.3 

WhU(\ the immediate effects of an environmental crime 

may 1I0t always be manifest, the cumulative costs in 

envirOl~mental damage and the long-range toll in illness, 

injury, and death may be considerable. The willingness of 

the public, government, and law enforcement officials to 

prosecute environmental crime, often without "smoking 

gun" evidence, is an important precondition in the fight 

against this growing problem. 

Experience has demonstrated that environmental regulation, although absolutely essential, is not always enough to 

protect the public and the environment. The stigma of 

criminal indictment and the threat of criminal penalties, 

including incarceration, have been urged as necessary to 

deter environmental criminals. 4 While important 

prosecutorial work has been done, and continues to be done, 

at the Federal and State. levels, local prosecutors represent 

an im portant and hitherto underused resource in the war on 

environmental crime. 

This Issues and Practices report is addressed to district 

attorneys und policymakers - in short, those in a position 

to increase local prosecutorial and law enforcement attention to environmental crime. Its purposes are twofold: (1) to 

encourage more local prosecutors to involve their offices in 

this important area, and (2) (0 provide basic information 

necessary to establish an environmental prosecution program and to achieve success in environmental cases. The 

report is not, however, intended to be an in-depth manual on 

the investigation and prosecution of environmental cases, 

Such information is available in vllriouS forms elsewhere. 

In particular, training courses and materials developed by 

the four EPA-funded Regional Environmental Enforcement Associations, the Environmental Prosecution Center 

ofthe National District Attorneys Association, the Environmental Law Institute, arId various other organizations provide in-depth, "how-to" information for environmental 

investigators and prosecutors. (Contact information for all 

of these organizations is provided in Appendix B of this 

report.) 

This report draws on the experience of five district attorneys' offices that have made the prosecution of environmental crime a major priority. In the course of the .. 10cument, the approaches taken by these offices are described, 

as are some of the obstacles they face. The five offices 

represent a diverse national sample of loc.'ll environmental 

prosecution programs. They are Alameda County and Los 

Angeles CounLy, California; Cook County, Illinois; Jefferson 

and Gilpin Counties, Colorado; and Monmouth County, 

New Jersey. Site visits were conducted at each of these 

offices, during which prosecutors, investigators, regulatory 

agency staff, and other key actors were interviewed. The 

research also Included an extensive literature and statutory 

review. 

111e five sites were selected following a lengthy consulta· 

tion with the project's advisers und other experts in thefield. 

The sites chosen have been among the leaders in local 

prosecution of environmental crime: all have received 

strong leadership from the district attorney (or equivalent) 

in taking a more aggressive approach to environmental 

prosecution; all have established special units or groups of 

specinlist attorneys to handle envlronmentatcases; all, >lve 

attempted to develop (with varying degrees of success) 

close working relationships with environmental regulatory 

agencies and law enforcement agencies in the development 

of cases; and all have achieved some success in prosecuting 

environmental offenders and sending them to prison. Otherwise, the offices differ significantly in the types of 

environmental offenses they target Hnd the organizational 

approaches they have taken to the interagency collaboration thai is vital to achieving success in environmental 

prosecution. Some have established formal strike forces 

with permanent agency representatives and regularly schedIntroduction xIII 
uled meetings, while others rely on more informal 

interagency contacts and collaboration. 

Most of these sites have faced, and continue to face, 

difficulties in agreeing on common enforcement goals and 

establishing smooth working relations, particularly among 

prosecutors and regulators. Regulatory agencies have historically focused on achieving compliance with environmental regulations and remediating environmental damage. As a result, they tend to favor working cooperatively 

with the regulated community as much as possible. If 

enforcement action becomes necessary, they g6nerally 

favor administrative or civil procedures. Law enforcement 

and proseclltorial agencies, by contrast, generally take a 

more combative or adve['sa1'!\al stance toward violators in 

the belief that punishment will deter others from committing similar offenses. Thf:se differing perspectives pose 

challenges for the devehpment of environmental crime 

units. 

Cooperation and collaboration among prosecutors, law 

enforcement officials, regulators, laboratories, and legislators arc all the more essential because of the growing 

sophistication of environmental crim inals and their defense 

attomeys. Although there are still numerous cases of "midnight dumping" - that is, simply dumping or abandoning 

hazardous materials or waste by the roadside or in vacant 

lots - increasing numbers of businesses systematically 

and knowingly are violating the environmentallaws to save 

money and increase profit margins.s A large number of' 

these firms have learned to shield their involvement in 

illegal activities through the usc of intermediaries and 

dummy corporations. Many environmental defense attorneys arc former prosecutors who know the laws and are 

adept at the use of procedural teChniques. 

Throughout this report, the importrmce of improving the 

sometimes contentious relationships among key agencies 

and actors is emphasized. Local prosecution of environXlv Local Prosecullon of EnVironmental Crime 

mental crime can make a major contribution to protecting 

the environment and the public. As the chief law enforcement officials at the local level, prosecutors can playa key 

role in mobilizing public involvement in the detection and 

reporting of environmental crime and in orchestrating an 

aggressive m ultiagency approach to investigation and prosecution.6 

Note: a glossary of terms and acronyms and a list of cases 

appear at the end of the text. 

Endnotes 

1. A. J. Celebrezze, et al., "Criminal Enforcement of State 

Environmental Laws: The Ohio Solution," Harvard 

Environmental Law Review 14 (1990): 217, 218. 

2. Arthur D. Little, Inc., "'Environmental Damage Rated 

as Most Serious among Business Crimes; Corporate 

Executives Should Be Held Liable, Survey Shows" 

(Press release, July 1991). 

3. J. DeCicco and E. Bonanno, "A Comparative Analysis 

of the Criminal Environmental Laws ofthe Fifty States: 

The Need for Statutory Uniformity as a Catalyst for 

Effective Enforcem ent of Existing and Proposed Laws," 

Florida State University Journal of Land Use and 

Envirollmental Law 5, no. 1 (Summer 1989). 

4. J. Yelverton, "Expanding the Role of District Attorneys 

in Prosecuting Environmental Crime" (Concept paper, 

draft 4, National District Attorneys Association, June 

22, 1990), p. 1. 

5. DeCicco and Bonanno, "Comparative Analysis," p. 2. 

6. Yelverton, "Expanding the Role of District Attorneys," 

p.l. 
Part One: 

Environmental Crime 

and the Current Response 

-
Chapter 1 

Nature and Extent of 

Environmental Crime 

What Is Environmental Crime? 

Defining environmental crime is no easy maUer. Pervasive 

statutory inconsistencies, both within and across juriSdictions, and the scarcity of uniform codification of State 

environmental laws pose difficulties for prosecutors and 

<,"l'er environmental criminals opportunities to evade prosecution by moving their operations across jurisdictional 

lines.1 Since much State environmental law is patterned 

after Federal statutes, a starting point for any discussion of 

environmental crime is the basic Federal statutory and 

regulatory framework. Concepts common to State environmental enforcement inclurJingprohibition and permitting 

of regulated activities, notice requirements (before a regulated act takes place, as in the case of asbestos removal; 

during the regulated act, as in the case of discharge monitoring; and after the act, as in the case of a release of 

hazardous materials), cradle-to-grave regulation, and labeling and placarding requirements all attest to the prominent role the Federal approach has played in the shaping of 

State-level responses to environmental enforcement. Understanding these concepts can make environmental law 

morc accessible for the local prosecutor new to the field. 

State laws and regulations also reflect the complex enforcement patterns called for by the Federal framework. Many 

environmental violations do not constitute criminal offenses, while others may be handled administratively, 

civilly, or criminally at the discretion ofthe authorities, and 

still others require criminal prosecution. It is important to 

note at the outset that an important and challenging aspect 

of environmental enforcement, in many instances, is deciding what enforcement option or path to select. 

The Federal environmental regUlatory scheme includes 

minimum requirements for the handling and disposal of 

hazardous waste and criminal penalties for their violation. 

(For a comprehensive summary of Federal environmental 

criminalstatutes, including the Resource Conservation and 

Recovery Act, see Appendix A.) In addition, Federal 

statutes (and their State analogues) extend to such media as 

air, water, toxic substances, pesticides,andsolid waste. The 

Federal laws and regulations in these areas have varying 

applicability to the activities of local prosecutors, as the 

sUbsequent discussion will demonstrate. 

Hazardous waste enforcement probably constitutes the 

bulk ofenvironmentalinvestigation and prosecution undertaken at the local level. The Resource Conservation and 

Recovery Act of 1976 (RCRA), 42 U .S.C. §§ 6901 et seq., 

established a framework for regulating hazardous waste 

from generation to disposal ("from the cradle to the grave'). 

RCRA defines hazardous waste (baseo on such characteristics as toxicity, reactivity, corrosivity, and flammability) 

and gives the U.S. Environmental Protection Agency power 

to regUlate hazardous waste labeling, containment, transportation, and record keeping. The primary regulatory 

vehicles provided for under RCRA include record keeping 

an(\ reporting requirements for hazardous waste generators, 

and a complex permitting system for hazardous waste 

treatment, storage, and disposal facilities (TSDFs).2 All 

TSDFs, whether on the waste generator's own site ("onsite") or elsewhere ("off-site"), must obtain perm its requiring them to meet certain standards in the handling of the 

hazardous waste. 

RCRA authorizes the EPA to define as hazardous any solid 

waste, or combination of solid wastes, that 

because of its quantity, concentration, or physical, 

chemical or infectious characteristics may 

(a) cause, or significantly contribute to an increase in 

mortality or an increase in serious irreversible or 

incapacitating reversible illness; or 

Nature and Extent 01 EnVironmental Crime 3 
-

(b) pose a substantial present or potential hazard to 

human health or the environment when improperly treated, stored, transported or disposed of, or 

otherwise managed. (42 U.S.C. §§ 6903,1983 ed., 

Supp. IV, 1991) 

The EPA has listed specific wastes as hazardous and has 

defined certain characteristics of hazardous waste (including ignitability, corrosivity, reactivity, and some forms of 

toxicity). Under Federal and State hazardous waste laws, 

the prosecutor must establish that the waste involved in the 

alleged violation is hazardous in order to obtain a criminal 

conviction.3 

Under 42 U.S.C. § 6928(d) of the RCRA, any person who 

knowingly transports or causes to be transported hazardous 

waste to an unpermitted facility or treats, stores, or disposes 

of hazardous wastes without a permit or in knowing viola· 

tion of a material condition or requirement of a permit or 

interim status regulations or standards may be guilty of a 

c.lass D felony. The maximum term of imprisonment under 

this section of the act is five years, while the maximum fine 

for an individual is $50,000 per day, or $250,000, or twice 

the wrongdoer's gain or society's loss from the illegal 

activity, whichever is greater. The maximum fine for a 

corporation is $50,000 per day, or $500,000, or twice gain 

or loss, whichever is greater. For a subsequent Violation, a 

class C felony, the maximum term of imprisonment is 10 

years, and the maximum fine can go as high as $100,000 per 

day or $500,000 for an individual or $1,000,000 for a 

corporation to twice the gain or loss, whichever is greater. 

States desiring to im plem ent their own regulatory programs 

are required to meet the minimum standards and procedures 

contained in RCRA. Indeed, most States have now been 

delegated authority to implement at least portions of the 

minimum hazardous waste control programs. Levels of 

experience with criminal prosecution of environmental 

offenses at the State and locallevel~ vary widely, however. 

While some States have developed extensive programs, 

resulting in numerous convictions of environmental offenders, others continue to rely primarily on administrative 

and civil procedures to achieve compliance with environmental laws and regulations. 

1n the 1970s, as a result of these new environmental laws 

and regulations, the United States witnessed the emergence 

of a relatively new brand of criminal activity now commonly referred to as illegal hazardous waste disposal. 

Although hazardous waste dumping has existed for years, 

only recently has it been considered serious enough to 

justify crim inal pcnalties.4 By 1984, the growing perception 

4 Locol Prosecution or EnVironmental Crime 

that the existing laws and regulations were insufficient to 

prevent future problems of hazardous waste disposal led to 

passage of the Hazardous and Solid Waste Amendments 

(HSWA) to RCRA. The problem also prompted a number 

of States to develop sophisticated criminal enforcement 

programs with a focus on hazardous waste offenses.s Elsewhere, in States with little or no previous experience in 

environmental criminal enforcement, the growing problem 

of improper hazardous waste disposal prompted the building of investigative staffs in order to initiate hazardous 

waste criminal programs.6 

The Resource Conservation and Recovery Act'sHazardous 

and Solid Waste Amendments include bans on the land 

disposal of a broad range of hazardous wastes; more stringent technical and financial requirements for treatment, 

storage, and disposal facilities; and extension of regulations 

to small-quantity generators (SQGs)-facilnies that generate less than 1,000 kg. of hazardous wastes per month. 

The Hazardous and Solid Waste Amendments increased the 

criminal penalties available under RCRA. Penalties provided for under 42 U.S.C. § 6928(d) currently include a fine 

of not more than $50,000 for each day of violation, or 

imprisonment not to exceed two years (five years in certain 

cases), orboth. If the conviction is for an offender's second 

or subseq uent violation under this paragraph, the maxim urn 

punishment is doubled. Under subsection (e) of 42 U.S.C. 

§ 6928, any person who knowingly transports, treats, stores, 

disposes of, or exports any identified or listed hazardous 

waste or used oil knowingly causing imminent danger of 

death or serious bodily injury, may receive a fine of not 

more than $250,000 or imprisonment for not more than 

fifteen years, or both. An organization convicted under this 

SUbsection may be subject to a fine of not more than 

$1,000,000 [42 U.S.C. § 6928(e)]. 

The HSW A increased the cost of legal hazardous waste 

disposal, thus probably tempting an increasing number of 

generators to tum to illegal methods of disposal to save 

money. While the public often associates illegal hazard~ 

ous waste disposal with the "midnight dumper," in recent 

years the methods of environmental criminals and their 

defense attorneys have attained an increased degree of 

sophistication. Midnight dumping, the earliest and cheapest form of illegal disposal, requires no more th2n "a truck 

and a lack of regard for public safety ."7 This sim ply involves 

disposing of the wastes in the nearest isolated area. Other 

"primitive" methods include open storage of materials in 

deteriorating drums, disposal in unlined or insufficiently 

lined landfills, and burning in defective incinerators.8 In 

recent years, hazardous waste violations have increasingly 
-

involved forgingwasle transportation manifests, mislabeling 

drums and waste shipments, disposing of waste on the 

generator's property (for example, pouring it down the 

drain or burying it), mixing hazardous waste with 

nonhazardous waste (sometimes called cocktailing), and 

shipping wastes to neighboring states or nations with less 

stringent or effective regulation and enforcement. There 

have been numerous suggestions that organized crime is 

involved in illegal disposal of hazardous waste. Indeed, a 

stUdy funded by the National Institute of Justice is examining the extent of organized crime involvement in "specialty" waste disposal in the New York City area, This 

includes disposal of hazardous waste, construction and 

demolition debris, medical and infectious waste, waste oil, 

and asbestos.~ 

One study of hazardous waste crime in the Northeast found 

that bribery and offers of employment at hazardous waste 

facilities were prevalent methods of manipuhiling public 

officials to meet offenders' ends.10 In addition, TSDF 

operators often hire attorneys with prior regUlatory agency 

work experience. Theselawyers bring to theirnew positions 

a detailed knowledge of environmental laws and regulations,u Although in no way is it improper to hire such 

professionals, in those instances in which the lawyer is 

buying a polluter time to comply, the real victims are the 

public and the environment. Moreover, hazardous waste 

generators and other environmental wrongdoers are increasingly using intermediaries and dumm y corporations to 

shield their involvement in illegal disposal operations, 

Prosecution of environmental crim inals thus often involves 

"piercing the corporate veil" in addition to proving corporate liability through respondeat superior or vicarious 

liability theories. This challenge, together with the defense 

bar's effective use of dilatory trial practices, poses obs tacles 

to successful environmental prosecution. 

The remaining components of the Federal environmental 

statutory and regulatory scheme include, inter alia, the 

Clean Air Act (CAA), 42 U,S.C. §§ 7401 et seq., the Clean 

Water Act (CWA), 33 U.S.C. §§ 1251 et seq., the Toxic 

Substances Control Act (TSCA), 15 U,S.C, §§ 2601 et seq" 

the Federal Insecticide, Fungicide and Rodenticide Act 

(FlFRA), 7 U.S.C. §§ 1.36 et seq., the Comprehensive 

Environmental Resource Compensation and Liability Act 

(CERCLA), 42 U.S,C. §§ 9601 note, et seq" and the Noise 

Control Act of 1972, 42 U ,S,C. §§ 4901 et seq, Each of these 

statutory schemes criminalizes certain acts as well as the 

falsification and in some instances omission ofinformation 

required to be provided to the government. 

The Clean Water Act (CWA), originally enacted in 1972 

under the Federal Watcr Pollution Control Act (FWPCA) 

amendments, established a system of standards, permits, 

and enforcement designed to achieve "fishable and swimmable" waters by 1983. In addition, it sought the total 

elimination of pollutant discharges into navigable waters 

by 1985. Under § 301 of the Clean Water Act, effluent 

limitations for all point sources (that is, specific, identifiable sources of discharge into waters) except publicly 

owned treatment works (POTWs) were required to reflect 

the "best practicable control technology currently available" by 1987 and the "best available technology economically achievable" by 1983. Subsequent amendments of 

CWA have extended compliance deadlines for these reqUirements. 

The central enforcement component of the CWA is the 

National Pollutant Discharge Elimination System (NPDES) 

program. NPDES, which regulates discharges from point 

sources including industrial dischargers and municipal 

treatment plants, provides for the issuance by the EPA of 

perm its for pollutant discharges from point sources into any 

of the country's waters. Permits regulate effluent discharges and establish deadlines for discharge limits. Section 402(b) of the Clean Water Act provides, upon EPA 

administratorapproval, for theadministrntion by individual 

States of their own permitting systems. In order to establish 

its own NPDES scheme, a State must meet certain EPA 

permitting provisions. Moreover, State NPDES programs 

"must have approved pretreatment programs which allow 

for incorporation of publicly-owned treatment works pretreatment conditions into permits issued to POTW."12 General NPDES permits regulate certain categories of discharges within a regulation-specified geographic area. 

Under the 1987 amendments to CWA creating criminal 

provisions for "knowing endangerment," any person who 

"knowingly" violates certain sections of the act or any 

permit condition, knowing at that time that such conduct 

thereby plaGes another in imminent danger of death or 

serious bodily injury, will be SUbject to a fine of up to 

$250,000 orim prisonment up to fifteen years, orbothPThe 

Clknowing endangerment" provision furthcr provides that a 

Clpcrson" dcfined as an "organization" may be fined up to 

$1,000,000 for its violulion,14 Lastly, a person convicted of 

a second or subsequent violation of the statute faces double 

the maximum penalty with respect to both the fine and the 

punishment.1S Under EPA regulations, in order to be delegated authority to implement this CWA program, a State 

must provide minimum criminal fines of $10,000 per 

violation for Clwillful" or "negligent" conduct by Clany 

person who, .• violatcs any npplicablc standards or limitations; any NPDES permit condition; or any NPDES filing 

requircment."16 

Natura and Extant 01 Environmental Crime 5 
l 

-

The Toxic Substances Control Act is intended to protect the 

public against numerous new and existing chemicals and 

other substances that may be introduced without being 

adequately tested for their effects on human health and 

environmental safety. The act provides for testing and 

notice procedures before new substances are released into 

the marketplace or designated fornew applications. Section 

6 of TSCA contains a special provision for the phasing out 

of polychlorinated biphenyls (PCBs). The act prohibits the 

manufacture, processing, transportation and lise of PCBs in 

anything other than a totally ellclosed state except in certain 

carefully defined circumstances. TSCA also prohibits the 

disposal of liquids containing more than a certain concentration of PCBs except in regulated incinerators, landfills, 

boilers, or other EPA-approved facilities. Section 7 of the 

act allows EPA to obtain emergency judicialrelief in the 

event of "imminent hazards." The act also establishes 

criminal penalties for any "knowing" or "willful" violation 

ofTSCA. Under 15 U.S.C. § 2615, the penalties provision 

of the Toxic Substances Control Act, any person who 

knowingly or willfully violates any provision oftheProhibited Acts section of TSCA, shall, ill addition to or in lieu of 

any TSCA civil penalty, be subject, upon conviction, to a 

fine of not more than $25,000 for each day of violation, or 

to imprisonmcnt for not more than one year, or both. TSCA 

is generally of little concern to local prosecutors because, 

except for the PCB regulations, its requirements arc centrally administered by EPA headquarters in Washington. 

Enacted in 1980 and revised by the Superfund Amendments 

and Reauthorization Act of 1986 (SARA), the Comprehensive Environmental Resource Compensation and Liability 

Act, or"Superfund,"wasdesigned to complete the statutory 

and regUlatory coverage oftoxic substances and hazardous 

waste. TSCA and RCRA primarily govern the generation, 

transport, treatment, storage, and disposal of these substances and wastes. TIle sanctions in TSCA and RCRA are 

intended to reach illegalities in these activities as they occur 

and regardless of their results. CERCLA's focus is the 

environmental damage wrought by past noncompliance. It 

provides for the identification and priority ranking of 

contaminated sites that could pose threats to the environment and requires all firms that contributed to the contamination of National Priority List (NPL) sites to conduct or 

pay for their cleanup.17 Section 106 of CERCLA authorizes 

the U.S. Attorney General to seek injunctive relief where an 

actual or threatened release poses uimminent and substantial endangerment" to the public health or welfare of the 

environment. Alternatively, the President may issue administrative orders directing responsible parties to take 

protective action. 

6 Local Prosecution of Environmental Crime 

Section 107 of CERCLA provides that any and all generators of hazardous waste found in, transporters of waste to, 

and owners and operators of an NPL site may be liable for 

(1) all costs of removal or remedial action incurred by the 

Federal or State government "not inconsistent with" the 

National Contingency Plan (NCP)i (2) any other "necessary" response costs incurred by any other person "consistent with" theNCPj and (3) damages to "natural resource$" 

resulting from release of hazardous substances. Thus, 

CERCLAimposes "joint and several liability" on contributors to problems posed by designated Superfund sites. 

Moreover, the courts have held that section 107 imposes 

strict liability on all participants, independent of fault or 

state of mind. 

Under 42 U.S.C. § 9603(b) ofCERCLA, anyone in charge 

of a facility from which a hazardous substance ic; released 

(other than a federally permitted release) in quantities equal 

to or greater than specified, who fails immediately to notify 

the National Response Center as soon as he or she had 

knowledge, or who submits in such notification any information he or she knows to be false or misleading may, upon 

conviction, be subject to a maximum term of imprisonment 

of three years, or a maximum fine of $250,000 or twice the 

gain or loss, whichever is greater. If the violator is a 

corporation, however, the maximum fine can be $500,000 

or twice the gain or loss, whichever is greater. For a 

SUbsequent violation, a class D felony, the maximum 

penalty is five years in prison, $250,000 for an individual or 

$500,000 for a corporation or twice the gain or loss, 

whicheveris greater. It should be noted, however, that aside 

from these provisions related to reporting, few violations of 

CERCLA may be prosecuted criminally. 

The Federal Insecticide, Fungicide and Rodenticide Act, 7 

U.S.C. §§ 136 et seq., may be employed to prosecute 

defendants whose misuse of pesticides is alleged to have 

resulted in F'!lysical injury or even death. Under 7 U.S.C. § 

1361(b) of FIFRA a registrant, applicant, or producer who 

knowingly violates the act or a commercial applicator or 

other person not described above who distributes or sells a 

banned pesticide in knowing violation of the act may be 

subject to a maximum term of one year in prison. 111e 

section, conviction of which is a class A misdemeanor, also 

carries a maximum fine for an individual of $100,000 or 

twice the gain or loss incurred through the illegal activity, 

whichever is greater. The fine levied against an individual 

may be $250,000 iftheillegalactivity results in death. If the 

defendant is a corporation, the maximum fine may be 

$200,000 or twice the wrongdoer's gain or loss from the 

illegal activity, whichevet· is greater, or $500,000 if the 
I 

I 

l 

wrong results in death, Some of the State FIFRA programs 

can be as potent a source of local prosecutions as State 

Occupational Safety and Health Administration (OSHA) 

programs. 

How Serious Is 

Environmental Crime? 

The common absenceofa "smoking gun" in environmental 

cases complicates the task for prosecutors. While the 

immediate, short-term effects of environmental crime are 

often negligible or imperceptible, the long-term damage 

can be very severe. According to Jefferson and Gilpin 

Counties' district attorney, Donald Mielke, "an environmental criminal could become the next mass murderer, 

even though the cancers, birth defects and other problems 

he causes may take years to appear."IS Illegally disposed 

hazardous wastes can cause serious harm to the environment and human health through contamination of surface 

water or groundwater, pollution of the air via evaporation, 

fires, and explosions, poisoning via food chain contamination, and direct human contact.19 

Exposure to many common industrial solvents can cause 

severe damage to every human organ system. Prolonged 

exposure to xylene, for example, can damage the central 

nervous system, liver, and heart. Inhaling or handling 

methyl ethyl ketone can cause severe irritation to the skin, 

eyes, and throat. Significant dose exposure to ethylbenzene 

can produce pulmonary edema, a fluid buildup in the lungs 

that can be fatal. Where 1,1,1 trichloroethane has leaked 

into groundwater, it is suspected of causing birth defects. In 

short, these and other common pollutants are extremely 

dangerous substances whose mishandling can cause serious 

harm to persons and to the natural environment. 

However, it is often difficult to show obvious or immediate 

injury to the public or the environment. The damage 

established may be too technical to impress a lay jury of the 

risk involved. Attorneys in the Jefferson and Gilpin Counties' district attorney's office believe that juries and judges 

are reluctant to convict corporate defendants and high-level 

business officials of environm ental crim es. Sim Harl y, prosecutors in the Alameda County district attorney's office 

have found that many California judges see environmental 

cases as the proper domain of regulatory agencies, while 

juries often do not see or focus on the criminal aspect of 

environmental problems. Convincing the public that the 

environmental criminal is as hazardous to its health as a 

drug dealer or murderer remains a serious challenge. 

Regional/Local Variations 

in Environmental Crime 

Certain types of businesses, such as metal-plating shops, 

service stations, dry cleaners, and waste haulers seem to be 

suspect for environmental violations almost everywhere. 

Beyond these businesses, however, the characteristics of 

illegal disposal of hazardous waste in an area tend to mirror 

the dominant industries and business types in that region.20 

For instance, a 1986 study of illegal hazardous waste 

disposal in four Northeast and mid-Atlantic states found 

that Maine's cases evidenced textile, wC0d, and fishing 

industry wastes, while much of New Jersoy's caseload 

involved the chemical-producing and petrochemicalindustries. Pennsylvania and Maryland Cc:'lSes included many in 

which the primary waste sources were metal electroplating, 

galvanizing, and other metal-treatment processes. Another 

waste source common in Maryland cases was medical 

research debris. According to Maryland interviewees, the 

large number of Federal institutions and medical research 

facilities in the vicinity of Washington, D.C., and Baltimore 

has made the proper treatment of medical wastes a significant problem for the State.21 

The Monmouth County (New Jersey) prosecutor's office 

identified the illegal disposal of construction and demolition debris, much of it trucked in from nearby New York 

City, as a growing problem. In one instance, Monmouth 

County prosecutors uncovered a sophisticated waste management scheme in which construction debris from New 

York was shredded and laced with toxic chemicals. The 

debris was dumped in four areas of the county. In the 

indictment, theMonmouth County prosecutor asserted that 

the haulers had planned to mix the shredded waste with 

topsoil and sell it to people for lise on their lawns. Had the 

scheme succeeded, it would have created small hazardous 

waste "hot spots" all over the county. 

The Alameda (California) County district attorney's office 

has also found that the character oflocal industry drives the 

environmental caseload. Prosecutors in this county with a 

wide range of environmental problems noted that while 

agricultural runoff cases (for example, pesticides, fungicides, and herbicides) are quite common in the rural areas, 

steel mills and automobile plants are responsible for the 

bulk ofthe office's work referred from the older urban areas 

of the county. 

Just as the types of industry 1n a county drive the nature and 

volume of eases for prosecution, information on patterns of 

industry and potential sources of illegal activity should 

Nature and Extent or EnVironmental Crime 7 
drive detection strategies. Inspection or surveillance programs targeting the firms most likely to commit dangerous 

violations would probably represent an improvement on a 

system that relies on tips from disgruntled employees, 

business competitors, and neighbors as the primary source 

of leads. Intensified inspections of fewer firms selected on 

the basis of their probability of committing violations may 

be more cost-effective than routine inspection of all firms, 

or a simple random sample of firms.22 Air surveillance of 

suspect industries is sometimes effective, although it may 

have the effect of driving violators to conduct their activities at night and indoors.2J 

Extent of Environmental Crime 

Estimating the extent of environmental crime is conceptually and practically very difficult. Environmental crime 

may be divided into three basic categories. The first involves violation of permit conditions or other illegal acts 

committed by individuals or firms already part of the 

regUlatory scheme. An example of this is the shearling 

tannery that bypassed its wastewater treatment plant in 

violation of its CWA permit and discharged untreated waste 

into the river. Another example from this first category is a 

waste-hauling firm that is permitted under TSCA but 

improperly dispo.)es of PCBs while invoicing the generators as if legal disposal procedures had been followed. The 

second category involves acts committed by individuals or 

firms outside of the regulatory scheme - for exam pIe, the 

storageand/ordisposalofhazardouswastewithoutaRCRA 

permit. The third Cc'ltegory of environmental crime involves 

acts that would be illegal regardless of whether the actor 

was within the regulatory scheme. 111is category is exemplified by the classic "midnight dumper" who discharges 

PCBs alongside the highway. 

It is impossible to produce precise figures on the extent of 

crime in any of these Cc'ltcgories. As in the case of arson, it 

is often not immediately clear that H crime has been 

committed. Indeed, the problem is exacerbated in the 

environmental area because it may be years before the 

crimes, and their. often devastating effects, arc discovered. 

A look at the illegal disposal of ha7.ardous waste, probably 

the largest component of environmental crime, offers a 

glimpse of not only the potential immensity but also the 

difficulty of quantifying the problem. Nntionalestimates of 

hazardous waste generation are highly uncertain. Several 

widely cited studies done in the mid-1980s yielded estimates of 247-275 million metric tons per year.24 

8 Local Prosecullon of EnVironmental crime 

--------------------------~ ------- ---~--

Several factors account for the difficulty of developing 

precise figures regarding hazardous waste generation. First, 

hazardous waste is heterogeneous, including both liquids 

and solids and a large set of diverse chemicals. Because 

nonhazardous waste that is mixed with hazardous waste 

becomes legally hazardous itself, total quantities of hazardous waste generated are sensitive to changes in industrial 

practices and processes. For example, water used to flush 

out a container of hazardous wastes may become legally 

hazardous, If firms use less water to clean these containers, 

the quantity of hazardous waste they generate will be 

smaller.2S 

Estimation is also hampered by regUlatory agencies' employment of conflicting definitions of hazardous waste. 

Moreover, both Federaland State definitions have changed 

over time as wastes are added to or removed from the list. 

The distinction between legally hazardous and nonhazardous 

waste can be subtle. For instance, whether a waste stream 

is legally hazardous can depend on how much other waste 

the generator produces and thus on whether it exceeds 

RCRA's limitation for livery small generator," thus qualifying for regulation.26 

A third obstacle to obtaining an accurate estimate of 

hazardous-waste generation is the difficulty of identifying 

the universe of hazardous waste generators and treatment, 

storage, and disposal facilities. As of 1990, the EPA reported that there were 211,000 generators of hazardous 

waste in the United States subject to RCRA regulation. The 

number had increased ninefold since 1980, due primarily to 

the addition of 118,000 small-quantity generators to the 

regulated universe by the Hazardous and Solid Waste 

Amendments that took effect in 1985. In 1990, there were 

reported to be 4,700 transportation, storage, and disposal 

facilities subject to R CRA.21 However, the list of firms that 

initially notified the EPA that they were generators includes 

many that are not actually subject to RCRA regulation.~ 

While knowledge of the regulations is presumably better 

now than it was in 1980, the extent to which overreporting 

and undcrreporting affect estimates of numbers of generators is still unclear. 

Although calculating the number of facilities and the 

amounts of hazurdous waste generated and handled poses 

serious difficulties of estimation, it is only one aspect of the 

process of learning the extent of hazardous waste crime. A 

second obstacle .in the way of a full understanding of the 

breadth of the problem is determining how many of these 

facilities ore violating the law and how much of the waste 

they account for is being illegally managed and disposed of. 

Here, the estimates are even less reliable and certain. 

Figures from a 1983 study prepared for the Office of Policy 

---- ---- ---
Analysis of the U.S. Environmental Protection Agency 

suggested that 85-90 percent of large-quantity gene.rators 

(LQGs) were com plying with RCRA regulations.29 Increasing knowledge of the regulations and mote extensive 

enforcement programs may account for the higher level of 

compliance among LQGs since 1983. The major problems 

of noncompliance probably lie with the small-quantity 

generators (SQGs). For example, one study revealed that 

30-50 percent of New Jersey SQGs failed to use required 

hazardous waste manlfests, while a San Francisco Bay area 

survey found that 57 percent of SQGs disposed of at least 

some of their hazardous waste illegally. Surveys of SQGs 

in 42 Florida counties revealed that, in the aggregate, only 

about one-half of their waste is disposed of in compliance 

with the law.30 Thus, while the precise extent of illegal 

handling and disposal of hazardous waste is unknown, it is 

probably very large. 

The considerable increase in the cost of hazardous waste 

disposal following the enactment of the Hazardous and 

Solid Waste Amendments to RCRAin 1984 appears to have 

had a major impact on hazardous waste handling and 

disposal practices. Waste generators face an array of options for responding to disposal plice increases. These 

include paying the higher rates, reducing waste generation 

through process or product changes, recycling or selling 

wastes to other firms thfJt can use them, and dum ping wastes 

illegally. A firm's response may include more than one of 

these options. As the costs of legal disposal rise, the 

financial incentive for illegal disposal also increases, leading to more disposal in sewers or storm drains, evaporation, 

burial, or abandonment on land. While the incentive remains greatest for generators, waste haulers and TSDFs also 

have heightened incentives for disposing of wastes im properly.31 

Explanations for inappropriate waste disposal by industry 

rangcfrom ignorance to conscious disregard for the harmful 

consequences in an attempt to reduce disposal costs.n The 

availability of lcgal disposal facilities plays an important 

role in waste generator compliance with legal methods of 

disposal. Availability varies widely from State to State. In 

1988 there was only onclegally operating hazardous-waste 

land-disposal site in highly developed southern California. 

This site was more than 100 miles from thc principal 

generation locations. Evidencing a lack of availablc legal 

disposal facllities in that State, Massachusetts shipped an 

estimated 75 percent of its waste out of state in 1988, onchalf of it to New York.33 

Firms that dispose of their wastes illegally, and thereby 

avoid the high cost oflegal disposal, can gain a competitive 

advantage. In industries where legal disposal costs are large 

relative to profits, this advantage may be so significant that 

legal disposers cannot compete,34 Take, for example, a 

small dry cleaning business for which the cost of legal 

disposal of its monthly output of perchloroethylene (perc) 

sludge is $200 per month. This represents a substantial 

portion of the cleaner's $2,000 per month net revenue.3S 

While some commentators allege that a combination of 

corporate naivete regarding environmental damage, corruption, and regUlatory inefficiencies are the chief causes of 

illegal waste disposal,:16 others take a less charitable view of 

generators. Because hazardous waste management generally receives a small share of a firm's resources and 

attention, a suspect generator may claim to be unaware of 

disposal regUlations, its responsibility to comply, or even 

how to comply with known regulations. On the other side 

are critics who view industry as disingenuously attempting 

to exonerate itself by claiming ignorance of the possible 

damage caused by what are today recognized as grossly 

substandard disposalmethods. Similarly, many critics warn, 

industry may claim that it had no reason to suspect that 

contract disposal firms might be dumping improperly. 

Although the debate goes on, increasingly the public is 

coming to the view that these explanations of improper 

activity are of questionable veracity. The emerging view 

holds, whatever may have been the case in the past, that 

today many firms may be consciously disregarding potential harmful consequences simply in order to reduce their 

waste disposal costs.37 

Government has historically relied upon administrative 

procedures and civil actions such as injunctions to enforce 

environmental laws. At first glance, the lesser burden of 

proof and the availability of quickly obtained injunctions 

may make civil action against environmental wrongdoers 

appenr to be the preferred alternative. However, a closer 

look reveals that civil cases may take several years to get to 

trial, while the civil injunction obtained may only temporarily halt the discharge of pollutants. Similarly, civil 

enforcement actions are usually directed against a corporation or commercial entity, even where specific individual 

wrongdoers have been identified. As a result, the costs 

incurred in defending a civil action, together with the 

payment of any judgment, are often absorbed by the enterprise and regarded as a "cost of doing business/US Ultimately this "cost" is merely passed on to the consumer. 

It is widely agreed that criminal prosecution is an essential 

part of any comprehensive environmental enforcement 

polley. In a study assessing the progress of the Nation's 

hazardous waste management program, the EPA emphasized that "[a]n enforcement program aimed only at bringNature and Extent of Environmental Crime 9 
ing facilities into compliance and not at deterring future 

violations and encouraging voluntary compliance will be 

unsuccessful in the long run .•.• Criminal enforcement is 

viewed [by most study respondents - largely staff at EPA 

and state agencies] as the most effective tool for achieving 

deterrence.mg 

Economic analyses of environmental-regulatory enforcement and of criminal behavior generally suggest thut u firm 

will violate regulations if and only if the expected disposal 

cost savings exceed the expected penalty - that .ls, the 

possible legal sanctions weighted by the probability of 

apprehension.40 The stigma of criminal indictment and the 

thrc~t of incarceration are necessary to gain the attention 

and change the behavior of environmental wrongdoers. The 

stigma of criminal indictment for environmental crime and 

the adverse publicity it creates may weigh heavily upon the 

business executive. The executive, like anyone else, wishes 

to protect his or her personal liberty . The State may be able 

to deter illegal conduct by threatening that personal liberty 

through imprisonment.41 Moreover, according to Cook 

County assistant State's attorney Jay Magnuson, punishment of the individual corporate officer for misconduct 

carried out under the name of corporate purpose "satisfies 

society's desire to make • the actor' responsible for his [her] 

actions."42 

Unlike an executive, u corporation has no soul, no conscience. It cannot be imprisoned. Its liberty is reflected in 

the freedom it enjoys to do acts that enable it to make a 

profit:tJ Criminal sanctions directed at corporations include 

revoking corporate status and voiding corpo(ate tax benefits. In State of New Jersey v.lmperial Oil; Champion 

Chemical, Indictment No. 87-02-0287, the case that provided the impetus for the formation of the Monmouth 

County prosecutor's environmental prosecution unit, the 

defendant com pany was barred from government contracts, 

which had been a major source of its business. 111e revocation or suspension ofliccnses and permits for environmental violations may mean the cnd offiscal viability for many 

companies. Successful criminal prosecution of environmental crime involves fashioning a punishment thal reaches 

both the corporation and the corporate officeholder and 

deters other firms and executives from engaging in similar 

conduct. 

Endnotes 

1. DeCicco and Bonanno, HA Comparative Amllysis," 

p.2. 

10 Local Prosecution of EnVironmental Crime 

2. J. K. Hammitt and P. Reuter, Measuring and Deterring 

!/legal Disposal of Hazardous Waste: A Preliminary 

Assessment (Santa Monica, Calif.: Rand Corporation, 

October 1988), pp. 1-2. 

3. D. Rebovich, Understanding Hazardous Waste Crime: 

A Multista(e Examination of Offellse and Offender 

Characteristics ill the Northeast (Northeast Hazardous 

Waste Project and New Jersey Division of Criminal 

Justice, June 1986), p. 5. A revised version of this work 

has been published. D. Rebovich, Dallgerous Ground: 

The Wor/dofHazardous Waste Crime (New Brunswick, 

N.J.: Transaction PUblishers, 1992); however, aU citations to Rebovich in this report ref'cr to the earlier 

version of the work. 

4. Ibid., p. 5. 

5. Such States include Pennsylvania, New York, and 

Maryland. 

6. J. M. McElfish, Jr., "Stnte Hazardous Waste, Crimes," 

En\lironmentalLawReporter, 17 ELR 10465 (December 1987), p. 1. 

7. Rebovich, Understanding Hazardous Waste Crime, 

p.6. 

8. Ibid. 

9. Forinformation on thl\) study, contact Ronald Goldstock, 

Organized Crime Task Force, Post Office Plaza, 143 

Grand St., White Plains, NY 10601, Telephone (914) 

422-8700. 

10. Rebovich, Understa..,ding Hazardous Waste Crime, 

p.40. 

11. Ibid. 

12.40 C.F.R. § 403.10 (1990 Cd.). 

13.33 U.s.C. § 1319(c)(3)(A) (1986 cd., 1991 Supp.). 

14. Ibid. 

15. Ibid. 

16.40 C.F.R. § 123.27(a)(3)(ii) (1990 cd.). 

17. Hammitt and Reuter, Measuring and Deterring, p. 2. 

18. D. E. Mielke, "Remarks of Donald E. Mielke to the 

Subcommittee on Toxic Substances, Environmental 

Oversight, Research and Development of the Commit· 

tee on Environmental and Public Works of the United 

States Senate" (November 15, 1989), p. 2. 
19. Ibid., p.S; S.M. Wolf, ClHazardous Waste Trials and 

Tribulations," Environmental Law 13 (Winter 1983): 

367-491. 

20. Ibid., p. 23. 

21. Ibid. 

22. Hammitt and Reuter, Measuring and Deterring, p. 44. 

23. Ibid., p. 45j Rebovich, UnderstandingHazardous Waste 

Crime. 

24. J. E. McC'lrthy and M. E. A. Reisch, Hazardous Waste 

Fact Book (Washington, D.C.: CongressionalResearch 

Service, January 1987), pp. 5-7 (Tables 1-2). These 

studies covered only RCRA-regulated facilities. The 

inclusion of non regulated generators might increase the 

figure by more than 300 million tons per year. Moreover, derived national generation estimates based on a 

survey of a portion of the chemical industry run as high 

as 1 billion metric tons per year. Thus, it is clear that this 

country generates a staggering amount of hazardous 

waste each yenr, somewhere between 247 million and 

1 billion metric tons. 

25. Ibid., p. 47. 

26. Ibid., p. 48 

27. U.S. EnvironmentnlProtectionAgency, Office of Solid 

Wnste and Emergency Response, TheN ation IS Hazardous Waste Management Program ala Crossroads.' The 

RCRA Imp/emelita/ion Study (WaShington, D.C.: U.S. 

Environmentnl Protection Agency, July 1990), p. 7. 

28. Ibid. Apparently, many of these companies notified the 

EPA either mistakenly or protectively, to avoid any 

possible snnctions for failure to notify. 

29. Savant Associates, Inc., nnd Response Analysis Corporation, Experiences of Hazardous Waste Generators 

with EPA's Phase I RCRA C Progral1l: A Survey and 

Assessment (Washington, D.C.: U.S. Environmcntnl 

Protection Agency, Office of Policy Analysis, Septcmbei 1, 1983). 

--

30. B. L. Bozeman et al., New Jersey Small Quantity 

Generator Survey and Analysis, 4 vols. (Trenton, N.J.: 

New Jersey Hazardous Waste Facilities Siting Commission, Project X-067, December 1986); L. J. Russell 

and E. C. Meiorin, TheDisposalofHazardous Waste by 

Small Quantity Generators.' Magnitude of the Problem 

(Oakland, Calif.: Association of Bay Area Governments, .Tune 1985); S. I. Schwartz et .'11., Managing 

Hazardous Wastes Produced by Small Quantity Generators (Davis, Calif.: University ofCnlifornia at Dnvis, 

Division ofEnvironmental Studies; Sncrnmento, Callf: 

State of California, Senate Office of Research, April 

1987). 

31. Ibid. 

32. Yelverton, HExpanding the Role of District Attorneys," 

p.2. 

33. Hammitt and Reuter, Measuring and Deterring, p. 10. 

34. Ibid., p. 11. 

35. Ibid., pp. 11-12. 

36. Rebovlch, Understanding Hazardous Waste Crime, 

p.5. 

37. Ibid. 

38. DeCicco nnd Bonanno, "A Comparative Analysis", 

p.6. 

39. U.S. Environmental Protection Agency, The Nation's 

Hazardous Waste Management Program, pp. 60, 62. 

40. Hammitt and Reuter, Measuring and Deterring, p. 37. 

41. J. C. Magnuson and G. C. Leviton, Upolicy Considerations in Cl'iminal Prosecutions after People v. Film 

Recovery Systems, Inc.," Notre Dame Law Review 62 

(1987): 913, 930. 

42. Ibid. 

43. Ibid., p. 929. 

Nature and Extent of EnVironmental crime 1 t 
~~--------.----------------------------

Chapter 2 

The State of Criminal Prosecution 

Criminal prosecution of environmental crime is still in its 

relative infancy in the United States. At the Federal level, 

the Environmental Protection Agency has expanded its 

criminal enforcement program over the past several years, 

but the numbers of matters referred to U.S, attorneys' 

offiCes, cases filed, and convictions obtained remains quite 

modest relative to the likely dimensions of environmental 

crime. EPA referred 318 cases to the U.S. Department of 

Justice for prosecution between 1982 and 1989.1 Between 

fiscal years 1986 and 1990, 137 criminal matters relating to 

Federal environmental laws were received by U.S. attor· 

neys' offices. These matters were distributed as follows: 

RCRA (Hazardous waste) 40 

CERCLA (Superfund) 35 

CWA (Wnter) 25 

FIFRA (Pesticides) 20 

CAA (Air) 13 

TSCA (Toxic substances) --!! 

Total 137 

TIle matters referred to the U.S, Department of Justice 

between 1982-1989 resulted in the conviction of 351 

dcfendnnts. In fiscal year 1989, 76 defendants were con· 

victed, inter nli~ 24 for violations of RCRA and 30 fOl' 

violations of the Clenn Water Act.2 

Resource limitations have certainly constrained criminal 

enforcement activity. For example, between 1982 and 

1984, theEP Ns NationalEnforcement Investigations Ccnter (NEIC)3 received 240 allegations that were characterized as having potential for crim inal prosecution, but could 

investigate only 70 beCHuse oflimited resources.4 Between 

1982 and 1989 the number of EPA criminal investigators 

incrc'1sed from 20 to more than 60, evidencing a major 

commitment to criminal enforcement on the part of the 

agency. SBut investigative resources still fall far short ofthe 

need. 

On balance, the EPA and the States have taken nn over· 

whelmingly administrative and civil approach to environ· 

mental enforcement. Simply stated, the theory is that 

regulation of waste, its storage, transportation, discharge, 

and disposal would compel compliance by waste generators, thereby resulting in a cleaner environment.G Selfregulation and compliance monitoring have always been 

the central themes of EPA enforcement, and until the mid1970s criminal sanctions were not pursued bcc~luse many 

regulations were not in place and compliance deadlines had 

not yet run for those already functionaJ.1 For example, 

congressional passage of CAA, CWA, and RCRA was 

aimed at deterring indiscriminnte discharge of pollutnnts, 

bl: t Federnl enforcement of criminal stntutes did not begin 

in earnest until after Congress voiced its displeasure nt the 

lack of effective enforcement during the hearings to 

reauthorize CM and CWA.d 

As the EPA has acknowledged, there is a need for the 

complete integrution of its civil, judicial, and criminal 

enforcement programs. This requires more networking 

between criminal and civil enforcement personnel and a 

recognition on the part of EPA regions that criminal enforcement is a powerful tool for promoting Environmental 

Protection Agency goals.9 

Environmenllll officials ut n11 levels of government concede 

that where criminal enforcement is pursued it continues 10 

be nlmost entirely reactive. Responding to questions during 

n Senate henring nbout the extent of organized crime 

involvement In illegal hnznrdous waste dlsposnl, n specinl 

agent of the Illinois Department of Luw Enforcement gave 

the following characterization of his agency's approach to 

environmental crime: "We have to play catCh-Up responding to worst case situations. If we had the luxury of going 

after proactive investigations, I cnnnot predict what we 

WQuld be finding." TIle chief of Environmental Prosecu· 

tlons in New Jersey, testifying before the same hearing, 

stnted, "I don't think anybody in this country Is doing 

proactive investigations now ••. 1 suggest .•• that if you 

do not do proactive Investigations on envlronmentnl matters, as you do on nny other Ol'g~lnized crime target, you are 

not going to ••• find [organized crime involvemcntj.lI1o 

Tho Slalo 01 Criminal Prosecullon 13 
_P7PER 

Some state attorneys general (for example, those in Arizona, New Jersey, Ohio, and Massachusetts) have fairly 

aggrcs9ive environmcntal prosecution policies and have 

established good records of success (see section 7.2). The 

National Association of Attorneys General (NAAG) has an 

active environmental committee and has done important 

advocacy and lobbying work on behalf of environmental 

legislation. NAAG's compilations of State environmental 

legislation and its model statutes represent important resources for environmental prosecutors. (See Appendix B 

for examples of the NAAG model statutes and for information on obtaining the statutory compilations.) NAAG's 

work may advance the hoped-for progress toward greater 

uniformity and codification of State environmental statutes. 

In many States the criminal jurisdiction of the attorney 

general (A.G.) is sharply limited. This jurisdletionnl impediment is a major obstacle to greater A.G. pnrticipation 

in criminal environmental enforcement. In Illinois, for 

instance, the attorney general docs not have access to the 

grand jury process. Published analyses of RCRA enforcementat the State level, though somewhat dated, havefollnd 

small numbers of prosecutions. II Although prosecution has 

increased signific<'lOtlv since these studies were published, 

State efforts still represent a critical and significantly 

undcruscd part of environmental enforcement. 

The Local Role 

Because oftheir complexity and scope, many environmen. 

tal criminal cases require the attention of authorities at 

different levels of government and in different juriSdictions. However, local prosecutors may be in a bett~r position than State or Federul authorities to handle many cases 

that affect primarily the local community. Local police and 

fire departments may be more likely to learn about environmental incidents and respond more quickly, whereas State 

authorities may be less attuned to the concerns of the local 

community. Respondents in the visited jurisdictions noted 

little competition for environmental cases between the 

State attorney general and local prosecutors. Indeed, more 

often, local prosecutors perceive themselves as complementing the efforts of Federal and State authorities and as 

adding needed resources to the fight. According to the 

National District Attorneys Association (NDAA), which 

maintains an active environmental committee and has 

establlshed an environmental prosecution center, the 

Nation's district attorneys wlli represent a potent force in 

environmental crime prosecution in decades to come. For 

14 Local Prosecullon of Environmental crime 

now, however, w.ith more than 2,800 district attorneys 

nationwide, local prosecutors are the most underutilized 

resource in the war on environmental crime. 

Despite the evidence of public concern regarding environmental crime, thus far, only a relatively smallnumherofthe 

Nation's district attorneys (D.A.s) are known to have given 

serious attention to environmental crime. TIle sites visited 

for this report reprl!sent some of the most committed and 

successful of these programs. Nevertheless, even in those 

jUrisdictions in which the D.A. has demonstrated a strong 

commitment to criminal environmental prosecution, the 

efforts are sometimes hampered by four significant, problems: (1) differences ,in outlook and objectives between 

prosecutors and regUlatory agencies, (2) shortages oftrained 

environmental attorneys and investigators, (3) lack of 

adequate laboratory and other technical resources, 12 and (4) 

insufficient exchange of information among agencies and 

jurisdictions. 

Accol'dlng to Donald Mielke, the Jeffersrm and Gilpin 

Counties' (Colorado) district attorney, State regUlators arc 

at least partly to blame for not bringing D.A.s into envil'Onmental enforcement sooner. Local district attorneys have 

been told that somehow environmental cases arc "too 

complex," "take too much investigative time," CCcost too 

much," ot' "m'e beyond their expertise."IJ Dispelling the 

mystique surrounding environmental cases is an essential 

part of any plan to increase the role of local prosecutors in 

environmental enforcement. 

Attorneys interviewed for a study of hazardous waste crime 

in the Northeast listed the following special pressures and 

obstucles as ingrained in the prosecution of hazardous waste 

offenses: 

1. Businesscommunlty pressure against criminal prosecutlon of corporations and their officials, 

2. The technical problems of establishing the dangerOllsness of disposed wastes to the satisfaction of 

judges and jurors, 

3. Resource limitations that make it difficult to competc with defense attorneys' increasing utilization 

of expert witnesses and other expensive technical 

assistance, 

4. Inconsistent standards regarding sewer discharge. 

Some municipalities' liberal discharge standards 

were seen b~ .. interviewees as representing an attempt by 10~11 government to avoid alienation of 

certain businesses, 
-

5. Deficiencies in the hazardous waste manifest tracking system that makes it subject to exploitation by 

offenders, 

6. Failure by environmental inspectors to ensure the 

satisfactory collection of evidence to be used in 

criminal prosecution, 

7. Public and special interest group pressures for speed 

in the prosecution of cases. These pressures were 

due to the perceplion that the cleanup of illegal 

disposalsites and risk remediation are contingent on 

successful prosecution of the criminal case.14 

The expcriences ofthe district attorneys ' offices for Jefferson 

and Gilpin Counties, Colorado, and Alameda County, 

California, confirm that these obstacles are not unique to the 

Northeast. Prosecutors in Jefferson and Gilpin Counties 

have found that juries often view indicted CEOs as upstanding community leaders and their companies as providing 

needed employment in the community. In light of these 

sentiments, a jury's reluctance to convict may be understandable. 

As m ore local prosecutors make a com m itm en t to prose cut -

lng environmental cases, it is important that they involve 

and employ the resources and experience oflocal authorities. Local law enforcement agencies sllch as city police, 

county sheriffs, fire departments, and the state highway 

patrol are routinely "in the field" where unreported crim inal 

activitiel) are occurring. Local police, because of their 

constant, mobile presence in their comm unities, are natural 

troubleshooters, the "eyes and ears" of the community. 

Properly trained local law enforcement officers are more 

likely than anyone else to notice an unreported pipe discharging waste into a nearby stream. U If they are aware of 

what to look for, police may frequently uncover evidence 

of environmental crime during routine investigations of 

other suspected illegal activities. The execution of a search 

warrant on a suspected methamphetamine laboratory, for 

instance, may turn up containers of hazardous chemicals 

that pose a serious threat to the investigating officers as well 

as neighbors of the illegal operation, The buildings and 

grounds around the laboratory may well have been contaminated, requiring cleanup monitored by a regUlatory agency .16 

The quicker local law enforcement officials respond, the 

sooner the violation can be halted and the matter prosecuted. 

EPA's Enforcement Four· Year Strategic Plan for the 1990s 

calls for greater local government involvement in enforcement and promises expanded training opportunities and 

information exchange for district attorneys and Investigators.17 The increasing ~mphasis of the EPA and the U.S. 

Department of Justice on criminal enforcement is ml 

acknowledgement that the historical approach has not been 

adequate in relation to growing national environmental 

problems. The increasing use of criminal sanctions (as 

envisioned in the 1985 RCRA amendments) reinforces the 

view that certain acts against the public and the environment are so egregious that a criminal penalty must be 

imposed to punish and deterY 

Endnotes 

1. u.s. Environmental Protection Agency, Enforcement 

Four-Year Strategic Plan: Enhanced Environmental 

Enforcement for the 1990's (WaShington, D.C.: U.S. 

Environmental Protection Agency, September 1990), 

p.3. 

2. Ibid; U.S. Environmental Protection Agency, rhe 

Nation's Hazardous Waste Management Program at a 

Crossroad, p. 62 (Figure 15). 

3. In 1991, the NEIC was renamed the CriminalInvestigation Division within EPA's Office of Crim inalEnforcement. The headquarters was moved from Denver to 

Washington. 

4. Hammitt and Reuter, Measuring and Deterring, p. 23. 

5. U.S. Environmental Protection Agency, Enforcemeflt 

Four-Year Plan, p. 58. 

6. Yelverton, "Expanding the Role of District Attorneys," 

p.3. 

7. DeCicco and Bonanno, "A Comparative Analysis," 

p.9. 

8. Ibid. 

9. U.S. Environmental Protection Agency, Enforcement 

Four-Year Plan, p. 4. 

10. U.S. Congress, Senate, Profile of Organized Crime: 

Great Lakes Region, hearings before the Permanent 

Subcommittee on Investigations of the Committee 011 

GovernmentalAffairs, (S. Brg. 733) January 25,26, 31, 

and February I, 1984, p. 274, 279. 

11. Rebovich, Understanding Hazardous Waste Crime, 

p.20. 

The state of Criminal Prosecution 15 
12. An NIJ-funded study of local prosecution of corporate 

crime recommends, among other measures, establishment of regional laboratories. See M.L. Benson, F.T. 

Cullen, and W.J. Maakestad,Researc/z in Brief: Local 

Prosecutors and Corporate Crime (Washington, D.C.: 

National Institute of Justice, 1992). 

13. D.E. Mielke, "Bringing District Attorneys Into the 

Enforcement Community," NationalDistrictAttorneys 

Association EnvironmentalProtection Committee (September 27,1990), p. 3. 

16 Local Prosecullon at Environmental Crime 

14. Rebovich, Understanding Hazardous Waste Crime, 

p.4. 

15. Yelverton, "Expanding the Role of District Attorneys," 

p. S. 

16. Ibid., pp. 5-6. 

17. U.S. Envir.onmental Protection Agency, Enforcement 

Four-Year Plan, p. 6. 

18. Yelverton, "Expanding the Role of District Attorneys," 

p.6. 
Part Two: 

Developing More Effective local 

Prosecution of Environmental Crime 
Chapter 3 

An Introduction to the Investigatiorl 

and Prosecution of Environmental Crime 

As stated ear.lier, this report is designed to induce more local 

prosecutors to involve their offices in environmental cases 

and to summarize some of the information and issues that 

prosecutors need to enter and succeed in this area, It is not 

intended to be a step-by-step manual on investigating and 

prosecuting environmental cases. Such information, most 

commonly embodied in various training sessions and associated materials, is available elsewbere. For example, the 

Environmental Prosecution Center of the National District 

Attorneys Association and the Environm ental Law Institute 

(riLl), among other organizations, offer courses on environmental prosecution for State and local prosecutm's. Participants in such training sessions generally receive a course 

notebook that provides detailed, step-by-step guidance on 

the invcst!gation and prosecution process for environmental cases. Infotmation on this and other resources is included 

in Appendix B. 

Although this report is not intended to be a "how-to" manual 

for environmental prosec:utors, readers may benefit from an 

overview of the process of investigation and prosecution. 

Theref01~, before discussing some issues and options in the 

development of more effective local prosecution of environmental crime, we offer an overview of the basic stages 

of environmental investigation and prosecution, 

Environmental crimes come in many shapes and sizes. No 

two are exactly alike. However, there arc generally some 

common elements. Figure 1 divides the process ofinvestigalion and prosecution into eight stages and shows which 

agencies and actors may be involved at each stage. It is 

important to note that not all cases go through all of these 

stages in this sequence. Rather, Figure 1 k;ttempts to summarize the major activities and events in a case and how 

they might relate to one another. Figure 2 summarizes key 

characteristics of the five local environmental prosecution 

programs visited for this report. 

In Figure 1, stage 1 is the detection of an environmental 

offense or at least of the possibility that an offense has 

occurred or will occur. Such information can come from 

many sources, including tips from employees or former 

employees of a firm, members of the public, and environmental advocacy groups. In addition, various agencies may 

detect environmental offenses: regulatory agencies through 

routine (randomized) inspection or monitoring programs or 

through actions targeting specific suspect businesses or 

types ofbusinessesj fire departments or other agencies that 

respond to environmental incidents such as spills, leaks, or 

motor vehicle and railroad accidentsj and law enforcelnent 

agencies that may discover environmental offenses during 

routine or specificnlly targeted activities. 

Cases may be referred to the prosecutor as soon as the 

possibility of a criminal offense is identified, or referral 

may be delayed Until other law enforcement or regulatory 

agencies conduct further investigation. This depends upon 

local practices and procedures. In addition, the detection of 

an offense may trigger a response by a multiagency strike 

force or task force, if such a group exists. In Los Angeles, 

the Environm ental Crim cs Strike Force (discussed in greater 

detail below) is a useful forum for the apportioning of 

investigative tasks and responsibilities ~mong a number of 

prosecutorial, regulatory, and law enforcement agencies. 

In stage 2, background information on the suspect firm or 

individual may be collected. Such information, constituting 

an "environmental rap sheet" on the history of the suspect 

individual or company, may be most efficiently assembled 

in the context ofa multiagency response team in which the 

knowledge and experience of a variety of actors can be 

mobilized. A number of different agencies may have, at one 

time or another, investigated and/or gathered information 

on the suspect's conduct in relation to environmental laws 

and regUlations. 

An Inlroductlon to thelnVesllgation and Prosecullon ot Environmental Crime 19 
'" o 

.-

o 

o 

Q. 

.." 

o 

en 

CD 

o 

SO 

::J 

Q. 

m 

~ o 

::J 

3 

CD 

::J 

Q: 

Q 

3" 

CD 

Figure 1 

Investigation and Prosecution of Environmental Crime 

Stages of I 1 2 3 4 5 8 7 

InveaUgatlon! Detection of Collectl"n of Surveillanc .. of Evidence Laboratory Charging Adjudication 

Prosecution Offense Background Suapccts Collection Analysis 

Information 

" I ..-rips from employees ."Envlronmental sAerlal IIPreparatlon! BEstablishment a Determlna!lon as .?lea negotiation 

and citizens rap-sheet" on photography execution of of presence of to criminal or 

~ suspecls search warrant material meeting cIvI process (this aTrial 

~. IIlnformalion from a Sewer discha:ge legal requirements declslon may rome 

environmental ~ monKoring "Collection of for prosecution earlier) iliSentenclng/setllement 

~ groups samples for Posslbdily of 

IIiiSlake.()ut taboratory aPreparatlon of alndlctmenV cJeanup as 

a Informallon from • (surveillance analysis expert wKness Information condllion of 

agencies: ~ van, video testlmorrf probation 

RoutIne Inspection! I monitoring) IiIlnterviews 

moo.oring x II Maintenance of III Debarment from 

Targeted Inspeclion/ z lllCollectior. of chain of custody government 

monttoring I documents contracting 

Emergency response 

to environmental 

weldent (e.g. fire 

departments) 

Police' I Agencies Jaw enforcement 

Involved f 

~ ~ :-: .... '.-':. ... ~ I Prosecutor rn~;r:r~.d.ro b. EJ EI'J Ell 1m I$l III 

~ Regulalory agencies: pro •• cutor al Oany or atag •• 8 (lby fow. on •• mple collection) 0 El 1m I (e.g~ environmental 1-.) 

prolectlon agency, health 

z department. sewer authority_ I air qua/Iy .. geney) 

,; taw enforcement ag<;ncJes 0 0 13 EJ I:"·!.l~~~ronon .:~I:~~jl E:l ~ Frre departments [3 Public works departments mJ (H •• v), equipment for .Jl~.y.tlon) 

Laboratory 1m lAultlagenq task force g m EE rm m.l [] Court. 13 ------

SOUTer. Adapted from a description In Ir. Rain" .. , "Fighting Toxic Crime: A New Approach," Pros"cutor'. Brief (California Dlatrlet Attorney. Association, 19S!). 

S 

Cleanup and 

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cleanup & 

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Figure 2 

Characteristics of Visited Environmental Prosecution Programs 

Name of 

Program 

Alameda County, California 

Distric:tAttomey'sEnvironmental 

Protection Unit 

CookCounty {Clicago),llinois 

State's A.'tomey·s Environmental! 

Occupational Heahh Unit 

~H" 

Jeffersonand Gilpin Counties 

(1stJudicial District), Colorado 

Environmental Prosecution Unit 

LosAngeles County District 

Attomey'sEnvironmentalOime[ 

OSHA Division 

Monmouth County. NewJersey 

County Prosecutors 

Environmental Unit 

Number of 

Attorneys 

3-1,2 

B 

2 

9 

2 

aln addition. the unit has a full-time paralegal_ 

Number of 

In-houlle 

Investigator" 

1-1,2 

o 

8 

~.a 

Location 

within 

Office 

PartofDA's 

Consumerand 

Environmental 

Protection Division 

Part of PubKc 

ImerestBureau 

Part of Complex 

Prosecutions Unit 

Part of Bureau of 

Special Operations 

PartofMajor 

CtimesSection 

Jurisdiction 

Criminal end civil 

Ctim inal, civil, and 

adminis1rn!iw 

(regula!o!y) 

Oiminaland civil 

Ctiminaland civll 

CriminaJonly 

Vertical 

Prosecution 

Scheme 

Yes 

Yes 

Yes,for 

complex 

cases 

Yes 

Yes 

Attorney 

SpeclaJlution 

within Program 

Yes,1 attorney specializes 

in underground tank cases, 

1 En release response cases. 

and 1 in hazardous waste 

disposal cases 

No 

No 

Informal specialization: 

asbestos cases, petroleum 

industry cases, cases with 

complex search and seizure 

issues 

No 
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Figure 2-Continued 

Ch&:-Jcteristics of Visited Environmental Prosecution Programs 

other Asecles Involved 

Name of Regulatory Law Laboratory fnteragency Participation Training of Training of Primary Type Normal Active 

Program Enforcem ent Resources Organization! in Regional Prosecutors Investigators' of Cues Caselo,;db 

Procedure AIIsociations Regulators Handled 

Alameda County, Cafdomia County and city Califomia Primarily, County heahh Aegularinteragency Memberof Participates t" Provides awareness! Underground 200 

DistrictA!tomey'sEnvironmental heahh H"'9hway departm ent; also FISh and meetings;writlen Westem Slates CaflforniaDistrict interrogationtrainilgfor storage tanks, 

Protection Unit departments, Patrol, ponee GameDepartment agreement regarding Ha2ar:lous Attomeys regulatoryandlaw hazardous 

waterdistrict and fore in\lestigation rules! Waste Project Association enforcementstalf materiaJs/oNaste 

departments responsibilities courses management; 

hazardousWliSte 

cflSposal 

.- ... .. . ,. .I-'(-(,~2 ,2;'2",· 2,11:, ,,' ~2'i:,::':,,2~ ,~ m, 22"l2~'":22~M~l'Z:~~''''~''''''' ",.:: .. ""'~~~ 

CookCounty (Chicago), lninO!S lilinoisEPA. State pofiee, IBinois EPA and Metropor~anChicago Memberof PrinBJiv Provides awareness Workplace safety, 50 

State's A!tomey's Environmental! Metropontan local police, Metroporltan Water TaskForce (CHEMH!1) Midwest on tie job training for regulatory and mega! disposal of 

Occupationai Heahh Unit Water fire departments Fledamation District inc!ude.~ county and Slate Environmental law enforcement staff hazardous wastel 

Aeclamation agencies Enforcement maIeriaIs 

District Association 

... .- ............ '."'" ....... ...... Jeffersonand Gilpin Counties State and State pofiee, State health cepartm ent, None currently, but Memberof Federal Law Provides awareness ICegaldisposalof 5 

(1stJudicialDistrict),Colorado county heahh local pofioe USEPA, private inter~iIlforming local Westem States Enforcement trainingforlaw hazardous waste, 

EnvironmentalProsecutionUnit departments IaboralDr'.es ~;!'i.kforce Hazardous Training Center enforcement staff, attend undersround 

Waste Project (FLETC) courses A.ETCcourses storage tanks, 

agricuhuralrunoff 

.- ......... . ....... .. 

LosAngeles County District County health California Primarily, county Environmental Crime Memberof Attended Primariyonthejobfor mega! 150 open 

Attorney'sEnvironmentalCrime! department Highway Patrol. sanitation district; also Stricke Force with WestemStates California District in-house investigators; transportation! forma! 

OSHADMsion city and county local pofiee and OtyofLosAngeles 20+ member age.ru:ies; Hazardous Attorneys also participates in storage' investigations 

sanitation cf!S!rlcts fire departments, and Cafrfomia tegularmeetingsbutno Waste Project Association CaflforniaSpeciarlZed disposal of 

AirOuafityMar.a- sheriffs' Heahh Departments, Air written procedures! courses Training Institute courses, hazardous 

gement District departments Ouafity Management agreement provides awareness waste,sir 

county District. private training for law enforce- pollution 

departmentof IaboralDries ment and lire departments 

pubrc works 

................. ... .. . ..... ....... " ................ 

MonmouthCounty,NewJersey County heahh Local poliee County health No Memberof Slate Slate environmental tuega! transportation! 50 open 

County Prosecutors department, departments;aIso Northeast environmental prosecutor conducts disposruofhazardous investigations 

Environmental Unit State private laboratories Hazardous prosecutor a'NaTenesstraining; waste, shredded 

department of Waste Project provides training NortheastHa2an:!ous construction and 

environmental Waste Project provides demolition debris 

protection training as well com mingled with 

hazardous waste 

bBased on caseload at lime of slte visit. 
-------------------------------------------------------------------------------------

Stage 3 involves surveillance of a suspect in an effort to 

develop direct evidence of criminal activity. This close 

scrutiny of suspect firms may take many forms, including 

aerial photography, sewer discharge monitoring, and traditional "stakeouts," perhaps utilizing vans outfitted with 

video equipment. A variety of regulatory and law enforcement agencies may participate in surveillance activities 

either independently or under the direction of the prosecutor. This depends upon the stage at which the prosecutor is 

brought into the investigation. 

In stage 4, additional evidence is collected to support a 

criminal prosecution. In almost every case, the prosecutor 

will have to be involved at this stage to render legal advice 

in the preparation and execution of a search warrant. In 

some instances, regulatory agencies will collect evidence 

based on an inspection warrant or consent of the owner, but 

it is advisable to have the advice of a prosecutor on these 

types of proceedings as well. Types of evidence normally 

collected in environment~l1 cases include samples of water, 

soil, or other material for laboratory analysis, documents, 

and statements of witnesses and other involved parties. 

Stage 5 centers on laboratory analysis of samples. Most 

prosecutors rely on public laboratories, but private contract 

laboratories may also be used. The analysis is aimed at 

establishing the presence of substances meeting the legal 

requirements for prosecution under the applicable statute. 

Careful maintenance of the evidentiary chain of custOdy 

and preparation of expert witness testimony on the laboratory findings are also important parts of this stage of a 

prosecution. 

In stage 6, the prosecutor files charges by indictment or 

information, depending on local rules of criminal procedure. Of course, the determination may be made, for 

evidentiary \)1' other reasons, that a case does not warrant 

criminal prosecution and should instead be pursued civilly. 

Indeed, such a decision may be made by the prosecutor at 

any stage of the investigation. Some prosecutors have 

authority to proceed either civilly or criminally, whcreas 

others may bring only criminal charges. In the latter instance, civil cascs must be referred to the State attorney 

generalorsome otherdcsignated officcempowered to bring 

civil cases. In addition, ifthe prosecutor detcrm incs that thc 

case warrants a misdemeanor rather than a felony filing, it 

may be necessary to refer the case to a city attorney's officc 

or other prosccutorial agency. 

Stage 7 brings the case to adjudication or settlement. The 

prosecutor may negotiate a plea agreement or the case may 

go to a jury or bench trial. In most jurisdictions, the vast 

majority of cases are settled prior to trial. Sentences range 

from prison terms to fines to probation conditional on 

cleanup of environmental damage. In some jurisdictions, 

convicted defendants may also be debarred from government contracting, which may impose a very severe, even 

ruinous, economic hardship on an offending firm. 

Finally, in stage 8, compliance with the sentence or settlement is monitored. The prosecutor's office may be involved 

in collecting fines or penalties imposed on the offender, 

while regulatory agencies may oversee site remediation and 

cleanup. 

As noted above, environmental cases are extremely diverse 

and may not follow all ofthe outlined stages in precisely the 

same sequence. However, the sketch provided does suggest 

the major elements of most environmental cases. In order 

to provide additional specificity for the discussion of the 

stages of environmental investigation and prosecution, it 

may be useful to consider a major case developed by one of 

the programs visited for this project: the Los Angeles 

County Environmental Crimes Strike Force, headed by the 

Los Angeles County district attorney's office. I 

Various member agencies of the Strike Force, including the 

County Health Department and the California Highway 

Patrol, had long suspected that Raymond Franco, a licensed 

transporter of hazardous waste operating out of El Toro, 

California, had been violating various laws and regUlations 

regarding record keeping and disposal of waste. Franco 

allegedly made a practice of visiting small businesses, 

pointing out hazardous waste violations, and offering to 

take care ofthese problems for the businesses at low prices. 

Given the high cost of legal disposal and the financial 

stresses suffered by many businesses, Franco was apparently able to tempt a number of them to take advantage of 

his bargain rates. Stage 1 of this investigation involved not 

receipt of a particular employee's tip or other evidence of 

a particular act or incident, but rather the accumulating 

suspicion among several investigators that Franco was 

involved in illegal activities. These suspicions became the 

subject of Strike Force meetings and discussions, and more 

intensive coordinated investigative efforts were planned. 

In the Franco case, stages 2 (gathering of additional evidence) and 3 (surveillance) were reversed. Based on increasing suspicion about Franco's activities, the California 

Highway Patrol's (CHP) Hazardous Materials Investigation Unit began following him on his visits to businesses. 

Thereby, the unit identified the Laminating Company of 

America, a firm that manufactured portions of electronic 

circuit boards, as a potential Franco customer and initiated 

An IntrodUction to the Investigation and Prosecution of EnVironmental Crime 23 
-

surveillance at its Garden Grove location. This surveillance 

resulted in the observations that triggered the criminal case 

against Franco. 

In Oclobel' 1988, on the second day of surveillance at the 

Laminating Company of America, CHP officers observed 

Franco and several associates loading full 55-gallon drums 

onto two enclosed trucks with Mexican license plates. The 

drums were carefully concealed on the truck. The CHP 

officers took more than 300 photographs of these activities 

and then followed both trucks when they left the plant. One 

was lost as it headed north from Garden Grove, but the other 

was stopped not far from the Mexican border. It seemed 

clear that the waste was destined for illegal disposal in 

Mexico, but the California authorities had not yet made 

arrangements with Mexican officials for joint investigation 

of the case. 

The Mexican truck driver was arrested on suspicion of 

illegal transportation of hazardous waste, He was not 

licensed by the State health department as a waste hauler. 

Laboratory analysis later revealed that the. drums contained 

flammable hazardous waste. The driver told the officers he 

had been ordered to take the barrels to Tijuana. The driver 

pleaded guilty to a misdemeanor and spent several weeks in 

Orange County Jail. This was only the beginning ofthe case, 

however. 

Several weeks after the Laminating Company stakeout and 

arrest of the Mexican truck driver, the Los Angeles district 

attomey's office used the incident to obtain a search warrant 

for Franco's El Toro office. Execution of the warrant 

yiclded substantial documents related to hazardous waste 

transportation and disposal (stage 2). On inspection, these 

records revealed numerous discrepancies, including failure 

to file required manifestsfortransported wastes, disposal of 

waste at facilities other than those shown on manifests, and 

the apparent disappearance of many shipments. 

In the meantime, Los Angeles Strike Force agencies, 

working with the U.S, Environmental Protection Agency, 

began to uncover additional evidence of Franco's activities 

(stage 4). A letter supplied by the EPA revealed that an 

aluminum-processing firm with a plant in Torrance had 

paid France $12,000 (about half the estimated cost of legal 

disposal) to dispose of 57 drums of hazardous waste. The 

company believed that it had hired a reputable hauler to 

dispose of its waste in a legal manner. However, the 

customer never received copies of the reqUired papers 

tracking the waste from "cradle to grave," became suspicious, and reported the matter to the EPA. 

24 Locol Prosecution ot Environmental Crime 

-

Strike Force investigators learned that Franco had arranged 

with a Mexican truck driver named Torres, who also owned 

a small pottery factory in Tijuana, to haul and dispose of the 

aluminum firm's waste. Torres was already known to 

investigators: the northbound truck that had been lost after 

it left the Laminating Company's plant had been traced to 

him. 

Through a CHP connection, Mexican authorities were 

induced to check out Torres's factory, which was found to 

include a sealed warehouse. Based on the evidence assembled thus far, investigators believed that Franco was 

using agents, such as Torres, to transport waste to Tijuana, 

where it was probably being illegally stored or disposed of 

at the pottery factory. 

At this point, Strike Force investigators referred the case to 

the Orange C",unty district uttorney's office, since the 

principal violations had occurred in that jurisdiction. The 

Orange County D.A.'s office, however, suggested that 

there might be Federal violations for international transportation and disposal. This was confirm cd by Federal prosecutors, who noted that a critical missing piece of evidence for 

a Federal prosecution was the tracing of wa'ites known to 

have originated in the United States to a location in Mexicv. 

Obtaining this final link required the full cooperation of 

Mexican authorities, which the FBI was able to arrange. 

Thus, in February 1990, almost 1 1/2 years after the 

Laminating Company stakeout, U.s. and Mexican agents 

raided the Torres pottery factory and found numerous 

rusting and leaking drums, several of which had serial 

numbers matching thoseshown by lhealuminum company's 

records to be on drums consigned to Franco for hauling and 

disposal. 

TI1e final investigative stage (stage 5) involved a laboratory 

analysis ofsamplcs ofthe wastes thut had been tmced from 

the Torrance alum inum plant to the Tijuana pottery factory. 

This analysis revealed the prescnce of combinations of 

highly toxic und combustible industrial solvents, including 

toluene, xylene, methyl ethyl ketone, and 1,1,1 trichloroethune. The warehouse in which these drums were found 

was adjacent to an elementary school. Leaking fumes could 

have harmed persons in the vicinity or an explosion and fire 

could have occurred. Luckily, a disaster was averted. The 

EPA spent $100,000 to dispose properly of the waste found 

in this site. According to the Los Angeles Strike Force 

attorney who ultimately prosecuted the case in Federal 

court (with crOSS-designation as a special assistant U.S. 

attorney), U[w]e think such activity [as Franco's] is a violent 

crime and people should pay for that crime with time in 

custody.1I 
In May 1990, Franco and Torres were indicted in the first 

case alleging international smuggling of hazardous waste 

brought under U.S. environmental laws (stage 6). Franco 

was charged with six counts of illegal transportation of 

hazardous waste, one count of illegal disposal, one count of 

illegal export (all under the Resource Conservation and 

Recovery Act), and one count of conspiracy.2 He was 

arrested in New York and his case was scheduled for trial 

in December 1990. Ultimately, Franco pleaded guilty and, 

on December 2, 1991, he was sentenced to ten months in 

Federal prison. He was also ordered to pay the costs of 

I~leanup and disposal of the wastes (stage 8). Torres fled 

following the indictment and has not been apprehended. He 

is believed to be in Mexico. 

The Frail co case may not be a lypical environmental case 

developed by a local prosecutor's office. Indeed, it contained some relatively unusual elements, such as the international dimension and the crOSS-designation of the assistant D.A. as a special assistant U.S. attorney. However, the 

case does illustrate most of the key clements in the; development and prosecution of environmental cases faced by 

local prosecutors on a regular basis. 

With this overview and illustrative examples of the key 

elements of environmental cases in mind, let us tum to a 

discussion of organizational and strategic factors in the 

development and enhancement oflocal efforts in the investigation and prosecution of environmental crime. 

Endnotes 

1. The following account is based on interviews with 

Strike Force members, as well as Sarah Henry, "The 

Poison Trail: How Environmental Cops Tracl<e.d Deadly 

Waste Across the Border," Los Angeles Times Magazine, September 23, 1990. 

2. United States v. Franco and Torres, U.S. District Court, 

Central Dist., Calif., No. 90-3520-TJH. 

An Introducllon to the Invesllgallon and Prosecution 01 EnvIronmental CrIme 25 
Chapter 4 

Initiating a Program 

The Role of the District Attorney 

Support and leadership from the top of the prosecutorial 

agency can be extremely helpful in the establishment and 

growth of an environmental prosecution program. A district 

attorney who strongly supports environmental prosecution 

can be critical to the development of local prosecution 

efforts. However, local prosecutors who do not have the 

resources or are not prepared to make environmental cases 

a major priority of their offices can still make a difference 

in the battle against environmental crime. Smaller district 

attorneys' offices should not overlook the related professional experience of their deputy prosecutors. For instance, 

an office might find that one of its attorneys had worked in 

the environmental area before com Ing to the D .A.'s office. 

The role of the D.A. in this instance is to keep abreast of the 

interests and abilities of deputy prosecutors. By conducting 

an inventory of available experiencc, training, and interests 

prosecutors may identify fOlmerly untapped resources in 

the fight against environmental offenders. 

The local prosecutors in the jurisdictions visited for this 

project exemplify the roles strong leaders can play in 

fostering environmental prosecution. Jefferson find Gilpin 

Counties (Colorado) D.A. Donald Mielke has helped promote the prosecution of environmental crime both locnlly 

and nationally. Prior to becoming D.A., he served in the 

Colorado State legislature, where he authored and sponsored title 18, the "midnight dumping" stutute. Colorado's 

. title 18 was one of the first strong State criminal statutes on 

the environment. As a State legislator Mielke was also 

instrumental in gaining passage of the Hazardous Substances Incident Bill and a Reimbursement Bill (cost 

recovery) for locnl response teams. 

Mielke has become a nationally known advocate of increased prosecutorialuction on environmental crime ut the 

loca11eve1. As chair of the Nationul District Attorneys 

Association EnvironmentalProtection Committee, Mielke 

has promoted the creation ofa U.S. Department of Justicefunded National CenterfortheProsecution ofEnvironmental Crime including a national training institute for environmental prosecutors. At the local level, Mielke has sought to 

formalize a task force to coordinate all of the agencies 

involved in environmental investigation and prosecution. 

In Cook County, Illinois, both former State's attorney 

Richard Daley, now mayor of Chicago, and current State's 

attorney Cecil Partee have played important roles in promoting local criminal prosecution of environmental ot'-

fenses. According to Environmental Unit staff, Daley and 

Partee have been very supportive ofthe unit, which is a part 

of the larger Public Interest Bureau. 

In 1983, John Kaye became Monmouth County prosecutor 

(New Tersey). An outdoorsman with a strong interest in th(\ 

environment, Kaye took on an important environmental 

ense within his first year in office when, pursuanl to a Statecounty environmental protocol, the New Jersey attorney 

general referred the prosecution of International Flavors 

and Fragrances (State of New Jersey v. International 

Flavors and Fragrances, Accusation No, 1701-10-86) to 

Monmouth County. Kaye also assigned a full-time prosecution staff to environmental cases and instituted training 

programs with various State and Federal agencies including 

the EllA, the Federal Luw Enforcement Training Center 

(FLETC), and the New Jersey State Department ofEnvironmentalProtection(DEP). The activist D.A. made Monmouth 

County one of the first four counties in New Jersey with a 

flill-time environmental prosecution unit. Unit staff have 

developed expertise in relevant environmental legislation 

and regulations, as well as environmentalincident response 

procedures, and evidencc gathering and sampling. The unit, 

which began with four referrals, had fifty active investigations during the first half of 1990. Monmouth County 

prosecutor Kaye, who Is consulted on every ense, has 

created nn environmental prosecution unit that other New 

Jersey counties are now approaching for ideas and strategies on the creation of their own units. 

Initialing a Program 27 
Alameda County district attorney John Meehan (California) has received considemble praise for his establishment 

(in 1984) and ongoing support onhe office's environmental 

prosecution unit. Meehan is credited with enabling the unit 

to maintain its core of dedicated and experienced attorneys. 

The first cases handled by the unit were referred by the 

Sanitm'y District and the Fish and Game Department and 

were pursued as fraud prosecutions. These initial cases 

provided the D.A.'s office with some technical familiarity 

with environmental issues. 

The Role of a Major Case 

Leadership and commitment from the district attorney is 

certainly important, but a major case, and the internal and 

external interest it spawns, can also playa central role in 

getting an environmental unit started. People v. Film 

Recovery Systems, Inc., 84 C. 5064, 84 C. 11091 (Cook 

Cnty. Cir. 1985), resulted in the convictions ofa corporate 

president, plant manager, and plant foreman for murder and 

several counts of reckless conduct. The cases involved 

occupational exposure of company employees to hydrogen 

cyanide, resulting in the death by poison of one worker and 

serious injury to several others.1 Film Recovery, tried by 

then Stale's attorney Richard Daley, received considerable 

national and local press attention because it was the first 

verdict of corporate homicide in history. (For a more 

detailed discussion of this case, sec Chapter 8.) 

Although the Fillll Recovery case has been ordered retried 

(retrial is scheduled for the fall of 1992), its impact on the 

promotion of 10c.11 prosecution of environmental crime in 

Cook County, Illinois, is irreversible. Jay Magnuson, the 

Cook County assistant State's attorney on the case, sees no 

distinction between exposing workers to the danger of 

cyanide poison in the Hgas chamber" that was the workplace 

of Film Recovery and firing a weapon into a crowd. In both 

cases, he asserts, one has created a strong probability of 

death. Film Recovery increased the general public's consciousness of the dangers posed .in the workplace and 

elsewhere by toxic substances. It also assured the environmental unit a secure presence in the Cook County State's 

attorney's office. 

People of the State of Colorado v. Colorado Chemical 

Specialties, Inc., Ralph Mlko, and ROllald Drake, 88 CR 

181 (District Ct. Golden), helped establish the need for 

specialized environmental prosecution in the Jefferson and 

GHpin Counties' D.A. 's office. Colorado Chemical was the 

first felony conviction for an environmental offense obtained in Color~ldo. Indeed, the case occurred even before 

28 locol Prosecution ot Envlronmonlal Crime 

the rcderal government had prosecuted an environmental 

offense as a felony. The involvement ofthe EPA's National 

Enforcement Investigation Center in the case helped foster 

a close working relationship between NEIC and the Jefferson 

and Gilpin Counties' D.A. 's office. It also contributed to the 

evolution of a specialized case management approach for 

"complex" cases in the D.A.'s office. 

In 1983, the Monmouth County prosecutor assumed responsibility for the International Flavors and Fragrances 

case, which had been referred to the county by the New 

Jersey attorney general's office. Prior to initiation of the 

crimi.lal case, there had been considerable regulatory action against International Flavors and Fragrances (IFf). 

New Jersey environmental groups reported that they c,;uld 

document the discharge of contamination from the plant, 

and fish in an adjacent creek and bay smelled and tasted of 

blueberries and oranges, two artificial flavorings and fragrances manufactured by IFF. 

In conjunction with the New Jersey Department of Environmental Protection and the Monmouth County Health Department, Monmouth County prosecutor Kaye obtained a 

warrant, seized a large quantity of documents, took soil 

samples, and conducted surveillance flyovers of the IFF 

site .. Former com pany em ployees were willing to testify that 

they had been directed to dump toxic chemicals, such as 

hydrochloric and sulfuric acid, into holes on the property, 

and investigators uncovered a pipe in the plunt's discharge 

system that had not been properly scaled. 

The investigation of IFF took three years and prompted 

company employees to take out a large ad in a local 

newspaper prior to the trial which read: "Mr. Kaye, we are 

not criminals." IFF ultimately agreed to pay for the total 

cost of cleanup and a $75,000 adm inistrative penalty to the 

DEP. The company also agreed to plead guilty to the thirddegree offense of Abandonment of Discharge. The case 

served as an invaluable learning experlencefor the environmental unit of the Monmouth County Prosecutor's office. 

It also helped to raise public consciousness in Monmouth 

County of the need for local prosecution of environmental 

crime. 

Attracting Attorneys to the Unit 

In order to attract high-caliber attorneys to an environmental unit, it may be useful to appeal to an attorney's desire to 

do soclaUy useful work. The image of the prosecutor as the 

protector of the public and of the environment is a powerful 

one. Many environmental prosecutors comment that work 

in this arc.'l is more soclaUy satisfying than Utraditlonal" 

~-~-~---~ ---------

1 
-.. 

criminal work. David Gulhman, chief of the Los Angeles 

County D.A. 's Office Environmental Crimes/OSHA Division, speculates that the low turnover on his staff is attributuble to the sense of satisfaction the division's attorneys 

derive from "doing the right thing" by prosecuting environmental cases. Moreover, as the staff in the Cook County 

State's attorney's office noted, the environmentul unit 

probably offers the most m~lrketable professionul skills in 

the Cook County State's uttorney's office. 

Attorneys in environmental prosecution units come from a 

variety of backgrounds, including both criminul and civil 

practice. Most environmentul prosecutors have accrued 

signifiennt professional experience before joining the unit 

and few are hired directly out of law school. However, 

recently admitted attorneys who specialized in environmentallaw in law schoolmay be appropriute candidates for 

these units. (Law schools with distinguished environmental 

law progrums include Boalt Hull School of Law at the 

University of California at Berkeley, the University of 

Vermont, Puce University, George WaShington University I 

the University of Colorado, and Lewis and Clark University.) 

As partofthe environmental prosecution unit, environmental prosecutors gain substantial criminal and civil trial 

experience as well as invaluable exposure to regUlatory law 

practice. Unlike traditional criminal prosecutors, who may 

find themselves indelibly labeled "criminallawyers" after 

a stint with the D.A., environmental prosecutors learn to 

move from the criminal courtroom to the regulutory urena 

and buck again. As civil injunctive relief is often used to hu1t 

environmental violations pending adjudiention, unit attorneys also learn to make use of these important civil remedies. Environmental prosecutors observe that one good 

environmental prosecution seems to am)' a greater deterrent effect than "yet another" robbery conviction. This 

suggests that as statistics become available, they will 

indiente that the -'bUrnout" rate among environmental 

prosecutors is considerably lower than the rate for Utraditlonal" line prosecutors. 

Saffing the Example 

Successful10a\1 environmental prosecution units, such as 

those described in this report, c~m serve as important 

examples and sources of information for other county 

prosecutors. For example, Monmouth County has become 

a resource for other counties in New Jersey and elsewhere 

seeking to repliente Monmouth County's experience and 

aChievements. There are currently excellent networking 

opportunities to help prosecutors learn from model units 

about what works and what does not. Examples include the 

highly successful forums offered by the four Regional 

Environm ental Enforcement Associalions. These meetings 

present an opportunity to discllss in detail many Issues 

regarding environmental prosecution. The forums are held 

10 to 12 times per year at locations throughout the country. 

Also, the quarterly newsletters published by these associations serve as particularly effectiVe vehicles for describing 

successful approaches to environmental prosecution across 

the Nation. The national Environmental Prosecution Center, established by the National District Attorneys Association, provides additional opportunities for networking and 

interchange. 

Resource Issues 

Many environmental cases are highly resource-intensive. 

Proper investigation and prosecution of these c.1Ses may 

require substantial staff time, expert witnesses, sophistiented equipment, laboratory analYSis, and examination of 

large amounts of documentury material. When a ense is 

won, there may be n need for extensive follow-up oversight 

to ensure compliullce with site cleanup and remediation 

requirements that may be part ofthesentencc or settlement. 

Even prosecutors with a purticular interest in environmental enforcement often find that they have inadequate resources to handle traditional street crimes, let alone take on 

an entire new area requiring the commitment of substantial 

resources. 

Resource constraints represent a real and serio LIS problem 

in the establishment of loenl programs of environmental 

prosecution. They may preclude the establishment of separate environmental crimes units or require difficult cuseload 

trade-offs for individual attorneys, who muy have competing interests and assignments. 

The workers at the five offices, on whose experiences this 

report is primurily based, arc no doubt atypic.11. Even 

though they aU complain, to a grenter or lesser degree, of 

resource lim itations, they surely enjoy resources far beyond 

those available for environmental cases in most local 

prosecutors' offices. 

Webelieve, however, thai with commitment und creativity, 

many local prosecutors enn become effectively involved in 

environm''ntal enforcement, adopting ut least s()me of the 

approaches described in this document. 

Inillaling a Program 29 
There are several possible strategies for making do with 

limited resources. One possibility is to enter the environmental area selectively, that is, concentrating, at least at 

first, on types of cases that are usually fairly straightforward 

to investigate and prosecute. Such C<'lSes include solid waste 

violations, wetland filling, and "midnight dumping" of 

hazardous waste. Once the office has achieved some success in handling these types of cases, sufficient momentum 

and support may exist to obtain the additional resources 

necessary to begin pursuing more complex cases, such as 

those involving industrial processes and waste transportation and disposal schemes. 

A second approach is to make \Ise of outside resources to 

compensate for limitations on staff and bUdget within the 

office. In particular, local offices should take advantage of 

the many services offered by the four regional environmen30 Local Plosecutlon of Environmental Crime 

A -

tal enforcement associations that are funded by the U.S. 

Environment111 Protection Agency. These services include 

training sessions for prosecutors and investigators, regional 

forums, networking and infomlation exchange programs, 

legal research services, and data base research on targets of 

environmental investigations. Additional information regarding some of these services may be found elsewhere in 

this report, and Appendix B provide..'i contact names, addresses, and telephone numbers for all of the regional 

associations. 

Endnote 

1. Magnuson and Leviton, "Policy Considerations," 

p.913. 
Chapter 5 

Internal Organizational Issues 

Placement of an 

Environmental Unit within the Office 

The decision whether to establish a separate environmental 

crimes unit or make it part of a larger component of a 

prosecutor's office will generally be made by the district 

attorney based on anticipaled caseload, available resources, 

and the existing organization ofthe prosecutor's office. The 

programs visited for the preparation of this report represent 

tl variety of organizational placements. In Cook County, 

Illinois, the environmental unit of the State's attorney's 

office is part of the Public Interest Bureau. The Public 

Interest Bureau also handles paternity, child support, public 

utilities, mental health, and nursing home regulatory cases. 

Cook County's environmental unit is authorized to prosecute both environmental and occupational health cases. 

The Monmouth County, New Jersey, environmental prosecution unit is part of the major crimes section of the 

Monmouth County prosecutor's office. In Monmouth 

County, environmental crime is treated with the same 

commitment accorded to homicide, rObbery, burglary, and 

arson. The decision to include environmental crime in 

major crime is evidence of Monmouth County prosecutor 

Kaye's strong commitment to environmental prosecution 

and an acknowledgement of the severity of the problem. 

The two California county district attorney's offices examined for this study reveal distinct approaches to the prosecution of environmental crime. In Alameda County, the 

environmental prosecution unit is part of the Consumer and 

EnvironmentalProtection Division ofthe Alameda County 

district atlorney's office. In Los Angeles, environmental 

crime was split offfrom consumer protection and grouped 

with occupational safety and health cases in a separate unit 

of the Special Operations Bureau. Other divisions of the 

Special Operations Bureau of the Los Angeles County 

district attorney's office deal with juvenile crime, special 

crimes (trimes against peace officers, nursing home ca~es, 

and child abduction cases), hard-core gang cases, major 

narcotics cases, major frauds, and consumer protection. 

Finally, the environmental unit of the Jefferson and Gilpin 

Counties' district attorney's office is part of a specialized 

team assigned to handle complex cases.l 

Specialization within the Unit/Office 

Specialization within environmental crimes units typically 

occurs when case loads are quite large. With an active 

caseload of about 200 cases, Alameda County's environmental prosecution unit has found that specialization best 

meets its needs. One deputy D.A. specializes in underground storage tank cases, another focuses on "release 

response" cases, and a third specializes in hazardous waste 

disposal cases. In Los Angeles, where the unit has about 150 

ongoing formal investigations and about 600 open matters 

at any given time, no f01mal specialization has been established. However, some informal specialization has developed. For example, one attorney is particularly expert on 

asbestos cases, another has amassed considerable experience in petroleum industry cases, and a third is well versed 

in the search· and-seizure issues that are often important in 

environmental prosecutions. 

D.A. Mielke's office in Colorado has a specialized team of 

two attorneys within the Complex Prosecutions Unit who 

arc reserved to handle complex cases. The team "floats" 

among different types of cases accoi'ding to the unit's needs, 

with one of the two solely responsible for organized crime 

prosecution. 

In Cook Coun ty, environmental matters are assigned by the 

level of experience of the prosecutor rather than by specialty. Some environmental cases may require the filing of 

civil forfeiture claims, and many cases require familiarity 

with a variety of chemical substances. The technicalissues, 

however, are not unduly burdensome, and the required 

expertise can generally be acquired on thi! ,lob. Attorneys 

with the Cook County office note that many environmental 

cases are no more challenging technically than other types 

of criminal prosecutions. Still, prosecutors note, such cases 

Internal Organlzallonallssues 31 
are lypically more time consumAng to prepare for trial. 

Attorneys with the M:mmouth County unit lio not specialize 

in any particular way. The office has emphasized that the 

unit's investigative staffbe well trained and have familiarity with chemicals and hazardous substances. 

Vertical Prosecution 

Vertical prosecution, an approach to case management in 

which the same assistant prosecutor handles a case from the 

time it comes into the office through final adjudication, 

seems to be the rule in environmental cases. These are 

generally com plex cases, many in vol ving coneu rrent crim inal and civil investigations, which require intense and 

ongoing supervision. The attorneys in the Cook County unit 

make it It point to be involved from very carlyon in the 

investigation and to remain on the case all the way through 

to final adjudication. Similarly, in Monmouth County, 

prosecutors are involved ftom the outset oran investigation. 

32 Local Prosecution of Environmental crime 

• 

Unit attorneys review and provide legal advice on the 

drafting of search warrants and commonly conduct site 

visits jointly with criminal investigators. In Alameda County, 

one environmental prosecutor is on call around the clock. 

The office's policy on environmental case management is 

the vertical prosecution of cases. This is the policy in Los 

Angeles as well. Early, close, and ongoing cooperation 

between prosecutors and investigators in environmental 

prosecutions, as well as continuity of attorney assignment, 

is extremely important in complex environmental criminal 

cases. 

Endnote 

1. NU's study of the local prosecution of corporate crime 

recommends considering the cstablishment of special 

prosecution units to handle such cases. See Benson, 

Cullen, and Maakestad, Local Prosecutors and Corporate Crime. 

----------~~ -~ -- ~- -
_ ft 

Chapter 6 

Interagency Cooperation 

Successful environmental prosecution requires cross-disc.iplinary and interagency cooperation. Particularly important is the participation of environmental investigatory and 

regulatory agencies. Potential actors include police and fire 

departments, State police agencies, health departments, 

water and sewer districts, air quality districts, departments 

of public works, fire departments, and occupational safety 

and health agencies. Procedures and arrangements for 

interagency cooperation can take many forms, and the 

participation of law enforcement/investigative and regUlatory agencies poses its own set of issues ,1 

Forms of Interagency CoopSI'otion 

Because the local prosecutor's office often coordinates 

investigation of environmental crimes, the office can serve 

as an important catalyst for interagency cooperation, However, there are many approaches to interagency cooperation, Degree offormalization in interagency relations is an 

issue faced by most environmental prosecution programs. 

Two contrasting approaches arc offered by Alameda and 

Los Angeles Counties. The Alameda County environmental unit works closely with many diffel'entinvestigatory and 

regulatory agencies in the preparation of environmental 

prosecutions, The prosecutor receives referrals from the 

county health department, the City of Berkeley Health 

Department, the Alameda County Water District, the State 

highway patrol, and local fire and police departments. All 

of these agencies operate independently, though there are 

regular monthly meetings oftheir representatives to discuss 

active environmental C<'1ses. 

In Alameda CounlY, arrangements among participating 

agencies are specified in written agreements. Alameda 

Counly's "Guidance Document on Hazardous Materials 

Incident Investigation" spells out the roles and responsibilities of all of the investigative, regulatory, and prosecutorial 

agencies involved. 'This document includes a job description for the incident commander and the lead investigator, 

Police responsibilities include identifying criminal and 

civil violations, locating and interviewing witnesses, and 

assisting in the collection of physical evidence. The fire 

department is to call health department personnel to the 

scene when chemicals are involved and to assist in scene 

documentation and evidence sample collection. The county 

hazardous materials response team is assigned to procure 

and preserve evidence and to assist police, fire, and health 

offidals in form ulating technical questions that will aid the 

prosecution in the preparation of its case. The guidance 

document also specifies the informational content of incident reports I procedures for systematic follow-up of investigations, quarantining of materials, site access procedures, 

and procedures for sample and othel' evidence collection. 

The approach Los Angeles County takes is quite different. 

The L.A. County Environmental Cl'imes Strike Force includes representatives from numerous agencies permanently assigned to develop environmental prosecutions 

under the county prosecutor's leadership. However, pursuant to the wishes of the chief of the D.A.'s environmental 

crimes division, there are no written agreements covering 

Strike Force procedures.2 Originally known as the Hazardous Waste Strike Force, the project (which changed its 

name in 1989) began with the participation of five key 

regulatory agencies. Today more than twenty local and 

state agencies arc involved, although the core entities 

remain the D.A.'s office, the L,A. Police Department, the 

California Highway Patrol, and the County Fire Department1s 

Hazardous Materials Control Program (formerly in the 

County Health Department). 

A third approach might be termed the temporary taskforce, 

In this model, agenci~s are brought together for formal 

meetings and training sessions for a period of time. Once 

training has been provided and personal and institutional 

relations have been established, a formal schedule of meetjngs and sessions is discontinued. Agencies work together 

informally and may convene on an as-needed basis, This 

was the approach taken by the Environmental Protection 

Forum set up by a State's attorney in central Florida.3 

Interagency Cooperallon 33 

I 
---~-------------------

Afourth model, essentially the reverse ofthe central Florida 

approach, is exemplified by the Environmental Crimes 

Task Force established by the U.S. attorney's office in the 

Western District of New York (BuffalO). This began with 

line investigators and prosecutors getting together for informal discussions and evolved into a small, tight group that 

continued to work on cases informally without any written 

protocols or procedures. After the informal group had 

worked successfully for some time, interagency relations 

were reduced to formal written agreements. 

In Cook County~ the environmental unit participates in 

CHEMHIT, an interagency task force that also includes the 

State police, the Illinois Environmental Protection Agency, 

the Metropolitan Water Reclamation District of Greater 

Chicago, and the Illinois attorney general's office. Following meetings, State police further network with local police 

and fire departments. CHEMHIT's purpose is to coordinate 

environmentGI investigations in the Chicago metropolitan 

area. The head of the State's attorney's environmental unit, 

Jay Magnuson, reports that a good working relationship 

exists between participants and that the meetings have 

become a reliable source of information on environmental 

issues. 

While Monmouth County does not have a local task force 

for the sharing of information on environmental cases, 

Ocean County, New Jersey, has instituted a program in 

which each locallaw enforcement agency designates one or 

more officers to accompany investigators on these cases. 

The county has found that its program increasesloc.11 police 

involvement in environmental enforcement and exposes 

the officers to people trained in environmental investigation. At the same time, environmental investigators have 

the opportunity to work with officers intimately familiar 

with the locality. Interaction of this sort can only improve 

all of the players' sense that by working cooperatively they 

can make a difference in the battle against environmental 

crime. 

In Jefferson and Gilpin Counties there is considerable 

interest in setting up a local task force to conduct environmental investigations. Local prosecutors envision a group 

that would include representatives from police and sheriffs' 

departments, the state (highway) patrol, county health 

departments, th~ association of fire districts, nnd perhaps 

other agencies as well. This force would be operational, 

able to work as a team, sharing and coordintlting resources 

in particular investigations. The idea is Uto marry" law 

enforcement and technical expertise, and while some oflhe 

goals of this plan can be achieved through cross-tnlining of 

individuals (for example, John Moody, a health department 

34 Local Prosecullon of Environmental Crime 

official, is also fire chief and a graduate of FLETC) , it will 

also require the cooperation of persons and agencies with 

specialized training in particular disciplines. 

With or without formal arrangements and agreements, the 

establishment and maintenance of close interagency relationships in environmental criminal investigation require 

time and energy. On the whole, several of the jurisdictions 

studied have achieved high levels of interagency cooperation and information sharing among prosecutorial, investigatory, law enforcement, and regulatory agencies. People 

v. Shell Oil Company, Civ. #H-140991-0 (Alameda Co. 

Super. Ct., filed April 28, 1989), demonstrates the effectiveness of the cooperative interagency approach developed in Alameda County. The case involved the widesprend 

noncompliance of Shell service stations with California's 

underground storage tank laws. Shell was also charged with 

violations of hazurdous materials response and reporting 

requirements, the Hazardous Waste ControlAct, and unfair 

business competition laws. There hao been a tremendous 

amount offoot-dragging on compliance by service stations 

reported by city and county hazardous mate 1uls units, a 

water district, and health and fire departrr,ents. These 

reports were aired at the county's monthly environmental 

enforcement network meetings. Finally, after notices of 

violation had been sent to many stations and compliance 

deadlines had passed: a civil lawsuit was filed asking Shell 

to answer the litany of com plaints received from throughout 

the county. The collective pressure exerted on Shell by the 

cooperating agencies prompted the company to enter into 

a stipulated settlement the same day the complaint was 

filed. Similar instances of interagency cooperation could be 

cited for the other jurisdictions studied. 

Interagency relations have not been completely troublefree in any of the jurisdictions studied, however. 'The local 

prosecutors' relationships with health departments and 

other regulatory agencies has at times been strained. There 

have been disagreements regarding priorities. RegUlatory 

agencies, as discussed below, may prefer a civil or administrative approach to achieving compliance rather than the 

criminal approach to punishment of offenders. In underground storage tank removals, the fire department's responsehas often been tosay, "Let's get rid ofthe problem," 

or to cite the offender for a violation (lower than a misdemeanor). '111is complicates prosecution ifthe D.A. believes 

that a more serious Charge should be pursued. In another 

case, the D.A. and State OSHA disagreed over how to 

charge a company allegedly involved .in the illegal storage 

and transport of sodium cyanide.4 The D.A. wanted to 

pursue a criminal prosecution of the company, but State 

occupational safety and he~llth officials argued for a lesser 
-

administrative penalty. Some jurisdictions have also encountered difficulties in asking police departments to assign specific officers to environmental investigations. 

Law Enforcement and 

Investigative Agencies 

A vailability of Investigators 

within Prosecutor's Office 

Some local prosecutors' offices have their own investigators while others rely on outside law enforcement agencies 

for criminal case development. The Cook County 

prosecutor's office has no investigators of its own. The 

office works with the local and State police agencies, fire 

departments, and State regulatory agencies. In Monmouth 

County, by contrast, much of the investigative work is 

currently done by the prosecutor's office's own unit of four 

investigators. Monmouth and other jurisdictions have found 

some police officers reluctant to get involved in investigating nontraditional offenses such as environmental crimes. 

Both Alameda and Los Angeles Counties and Jefferson and 

Gilpin Counties have their own investigators but continue 

to rely on outside investigators as well as their in-house 

staff. 

Although hard evidence is lacking, prosecutors with their 

own investigators certainly believe that they possess an 

advantage over prosecutors who do not have such staff. 

Responsiveness and control are likely to be better when 

working with staff from the salllt'. agency. Staff of prosecutors' offices currently without their '.)Wh investigators generally expressed the desire to have such an internalresource. 

Budgetary constraints were cited as the reason for the 

current la<.k of internal investigators. 

Types of Invlestigative Expertise Required 

In the local prosecution of environmental crime, "good 

sound police work" is usually the most important type of 

investigative expertise required. Basic criminal investigative teChniques such as witness interviewing, warrant preparation and execution, gathering and analyzing documents, 

collecting evidence samples, and maintaining the chain of 

custody of evidence arc all critical. Procedures such as 

hazardous substance sum pIc collection and lab unalysis arc 

best left to regulatory agencies in much the same way as 

chemical analysis of evidence in drug or homicide cases is 

acknowledged to be the proper domain of crime and 

pathology labs. The notion that environmental cases arc too 

-. 

complex is simply not borne out by the experiences of the 

five D.A.s' offices researched for this report. It fails to 

recognize the professional sophistication of investigators 

who for years have aided in the preparation for trial of truly 

confounding narcotics conspiracy andsecuriti!!S fraud cases. 

"You Don't Have to Be a Chemist to Prove Environmental 

Violations" is the title of a workshop on environmental 

prosecutions for prosecutors and regulatory and investigative personnel presented by the California District Attorneys Association. The title aptly summarizes a hard-todispel misconception among law enforcement, regUlatory 

personnel, and the public in general that investigating 

environmental incidents should be left to scientists. Interviews with prosecutors suggest that good criminal investigators "produce" in environmental investigations just as 

frequently as they do in traditional criminal cases. 1be 

challenges of fighting environmental c:rime arc strikingly 

similar to those of halting narcotics trafficking, and they 

require the same investigative skills and commitment by 

law enforcemenl.s 

Local Police as "Eyes and Ears" 

Local police are the "eyes and cars" ofthe community in the 

detection of illegal environment alactivi tics. Police officers 

and sheriffs' deputies arc constantly on patrol. They dramatically increase the likelihood that illegal environmental 

activities will be detected.6 Many ~Jses arc referred to 

prosecutors by local police who spot abandoned drums or 

the release of materials during routine patl"Olling. A law 

enforcement officers' training video on environmental 

criminal enforcement prepared by the Midwest Environmental Enforcement Association (MEEA) drives home the 

point that police, better than anyone, know law enforcement. The officer in this training film declares that in asking 

officers to be on the lookout for environmental crime he is 

really not asking them to do anything they arc not already 

doing, "protecting people and property.1I "Pay attention to 

factories discharging substances into neighboring streams 

and tanker trucks passing along roads and highways through 

your communities," is the video's message. Furniture 

refinishers, plating or metal-working shops, automotive 

body shops, neighborhood service stations, dry cleaners, 

photo shops, funeral homes, and hospitals arc just some of 

the businesses identified in the film as suspect env.ironmenWI offenders that most police officers drive or walk past 

every day. (Information on this video may be found in 

Appendix B.) 

Referrals by law enforcement have increased as officers 

become better trained in identifying environmental offenses. As police learn more about environmental crime, 

Interagency Cooperallon 35 
they will become less resistant to involvement in environmental criminal enforcement. In Alameda County, D.A. 's 

office investigators reported they had never seen a police 

referral of an environmental crime until six months prior to 

a site visit conducted for this project. Alameda staff expressed the opinion that training can considerably increase 

the number of police referrals. 

Fire departments can also be an important source of leads 

fot prosecutors, but department personnel need training to 

know what to look for. For example, in Monmouth, 

interviewees reported that fire departments do not always 

know how to identify an incident involving hazardous 

materials or when to call in the prosecution unit for investigative assistance. The Alameda County district attorney's 

office provides training to fire departments in the danger 

posed by underground storage tank removal and similar 

environmental hazards. Efforts are also under way in 

Alameda to provide training on the prosecutorial perspective to fire department hazardous materials response personnel. 

ASeptember 1990 EPA publication entitled Environmental 

Criminal Enforcement: ALaw EnforcementO fficer's Guide 

offers a good summary of the potential role of law enforcement in environmental enforcement,' Wider distribution of 

these materials to police departments might help to change 

the persistr.nt widespread perception of law enforcement 

agencies that they are not appropriate pmiicipants in the war 

on environmental crime. 

Regulatory Agencies 

The Role of RegulatDlY Agencies 

Regulation and prosecution are, ultimately, equal means of 

protecting the environment and the public. Although sometimes tension between prosecutors and regulators exists, 

they can and do work together cooperatively. One of the 

roles of regulatory agencies in criminal enforcement is to 

notify prosecutors of potential environmental crime. TIlough 

not considered law enforcement agencies, regulatory agencies also play an important role in successful criminal 

investigation of environmental crime. Health departments, 

environmental protection agencies, and sewer authorities 

are the types of regulatory agencies most likely to become 

key actors in local environmental criminal prosecution. 

Local or State environmental regUlatory agencies are those 

to which U.s. EPA and/or the State environmental department delegates authority to implement Federal or State 

environmental regulations. In most States the State envi36 Local Prosecution at Envlronmenlal Crime 

ronmental agency is the EPA-designated entity with overall 

responsibility for regulatory implementation. County 2ud 

local health departments assist in implementation, particularly regarding hazardous waste and hazardous materials, 

through inspections, administraliveactions, and othermonitoring functions. More emphasis should be placed on 

utilizing local health departments, sewage authorities, and 

building inspectors as sources of information and assistance. 

The variety of agenCies involved may result in difficulties 

in coordination. Alternatively, it may increase effectiveness by expanding the pool of sources from which enforcement personnel can obtain information and by subjecting 

the regulated community to more attention and observation. For example, businesses may be inspected by several 

agencies, including fire departments, the Occupational 

Safety and Health Adm inistration or similar State agencies, 

and in some jurisdictions the air and water quality control 

board. Although none of these entities are specifically 

charged with enforcing hazardous waste regulations, they 

may notice violations and refer these to the appropriate 

enforcement agencies.s Inspection by any particular agency 

may have the effect of improving compliance by the 

inspected business with all health and environmental regulations. 

While conflicting Objectives and turf issues may produce 

tension, another obstacle that must be recognized and 

overcome by prosecutors involves the statutory and r~gulatory framework itself. Environmental statutes are drafted 

broadly to assure that they assert jUrisdiction over all 

activities of concern. As a consequence they sometimes 

assert jurisdiction over activities of little or no real environmental concern. Yet almost all violations of the statutes 

may be prosecuted either civilly or criminally. Some do not 

warrant any prosecution, some warrant civil, and some 

crim ina1. Sorting this out requires a fairly broad perspective 

on what is important. Prosecutors and regulators may not 

always make the same decisions, but attempts to do so in 

advance of investigations or prosecutorial decisions may 

make the prosecutor's efforts serve larger programmatic 

goals and have a more focused deterrent effect. They can 

also avoid prosecution of trivial offenses. 

A 1987 Rand Corporation study of illegal hazardous waste 

disposal in three states found astriking diversity of arrangements regarding regUlatory agency participation in enforcement. The stUdy notes that Massachusetts and Pennsylvania have highly centralized systems, whereas in California most regUlatory authority is delegated by the State to 

county health departments.9 In a few cases, implementation 
is even delegated to city health departments, as is the case 

with the city of Berkeley, California. In Alameda County, 

among other jurisdictions, the County Health Department 

is the main regulatory agency that the environmental prosecution unit works with on a daily bas.is. The extent of 

county level authority and activity in environmental regulation derives from a formal memorandum of understanding (MOU) between the State and the County Health 

Department. Although the State retains statutory responsibility for enforcement, some of its regulatory authority is 

delegated on a county level to the health officer. The health 

officer is deputized to act as the State's agent in the 

permitting and enforcement of storage, transportation, and 

disposal of hazardous waste. TheMOU mandates coordination between the State and the county, including monthly 

meetings and .information exchange. 

With responsibility for the regulation of 3,000 to 4,000 

generators of hazardous waste as well as handlers of 

hazardous materials and underground stonlp-e tank operators, the Alameda County Health Department oversees a 

massive pool of potential violators. Most case referrals 

follow a regulated party's failure to comply with a notice of 

violation sent by the Health Department. By formal arrangement the D.A.'s environmental prosecution unit receives copies of all violation notices issued by the Health 

Department. Following a third notice of violation, if a 

noncomplying party continues to ignore the Health 

Department's call for compliance, civil or criminal action 

is warranted. Such referrals are deemed to allege all of the 

elements of a criminal offense charged in the Health 

Department's notice of violation. 

The Alameda prosecution unit also works closely with the 

Alameda County Water District (ACWD). ACWD may be 

contacted by a fire department or other agency that has 

identified a leaking underground storage tank. Normally 

this information would be referred to the Water Quality 

Control Board for enforcement or technical advice, but as 

the board is short-staffed and often unable to handle these 

cases, ACWD has been asked to step in as technical 

middleman. ACWD will then supervise mediation and 

cleanup and make sure the investigation proceeds in a 

timely manner. 

The Los Angeles D.A. 's office works with a variety of 

regulatory agencies, including the Hazardous Materials 

Control Program of the County Fire Department (formerly 

in the County Department of Health Services), City and 

County Sanitation Districts, Departments of Public Works, 

and the regional Air Quality Management District. The 

Hazardous Materials Control Program is charged with 

regulating generators of hazardous waste within the county , 

while the State Health Department has responsibility for 

regulating TSDFs. However, the lines are often blurred, as 

ca'3::s may involve both generation of hazardous waste and 

TSDFs, and the Hazardous Materials Control Program is 

present at all stages. 

In Cook County, the environmental unit of the State's 

attorney's Public Interest Bureau receives referrals from the 

Illinois EPA Environmental Response Unit and the Metropolitan Water Reclamation District of Greater Chicago. 

Illinois EPA reports primarily abandonment of drums and 

spills, while the water reclamation district commonly refers 

cases of crim inal disposal into the water supply. 

Regulators perform most compliance inspections and, in 

many jurisdictions, maintain the unit that responds to 

hazardous materials incidents such as accidents, spills, and 

fires involving hazardous materials. Because regulators 

often have the most information on the offending firm, they 

are a critical source for leads and other information on 

crimes committed. 

In Monmouth County, the D.A.'s environmental unit has 

proposed that regUlators monitor compliance records and 

hazardous waste manifests to identify potential criminal 

violators for proactive investigations. In general, prosecutors in the five D.A.s' offices studied for this report repeatedly emphasized the need for a more proactive approach. 

However, due to resource constraints, most local prosecutions continue to be reactive rather than proactive. In the 

future, a more proactive approach using data bases on 

inspection and compliance may be used to assist prosecutors in identifying suspected environmental criminals. For 

now, however, due to resource limitations and uncertainty 

about the number and location of generators, most environmental cases begin with lips from employees or other 

citizens rather than with information obtained during regulatory inspections. lo 

In many jurisdictions regulatory agency personnel are 

n~sponsible for preserving samples of suspect hazardous 

substances for lab analysis. Sample taking is a critical part 

of the criminal investigation and requires technicians who 

are well versed in proper hazardous substances sample 

collection techniques. Likewise, these professionals must 

be "current" on proper hazardous substances safety procedures so as to protect themselves, their co-workers, and the 

public from injury or illness. Site samples, which are 

generally collected by regUlatory agency personnel, must 

be representative of the section of the site frol~j which they 

are taken. In Cook County "split," or duplicate, samples are 

Interagency Cooperation 37 
L 

taken at the scene because defendants are entitled to their 

own samples for analysis by their experts. Environmental 

unit attorneys note that for representativeness, samples 

taken by "core bore" (a procedure to extract samples from 

the approximate center of the total substance) are often 

preferred to those taken by "surface scraping,lIll Unfortunately, a lack of funding sometimes precludes "doing it 

right," and prosecutors have to settle for what they can get. 

Alameda County takes a cooperative approach to sample 

collection. With its technical equipment and the expertise 

necessary to process environmental crime scenes, the Department of Health conducts the actual sampling while the 

D.A.'s investigator supervises the chain of custody. The 

investigator and Health Department officials often confer 

regarding the most likely location on the site to take sam pIes 

that will be representative of the area of interest. Working 

together enhances both agencies' understanding of the 

needs and concerns of the other. 

Conflicts could arise at the site of an environmentalincident 

between the interests of public safety and evidence collection for a criminal prosecution. However, in every jurisdiction studied, the strict policy is that public safety must 

always take precedence, even if this means losing evidence 

or seriously jeopardizing a criminal investigation. Universal concern with public safety has prevented the emergence 

of conflict on this point. 

Regulatory agency staff who evaluate documentary and 

physical evidence to determine whether the contioued 

operation of a facility would jeopardize the public's health 

play another important role in criminal prosecution.12 Regulators may be called upon to testify at trial as expert 

witnesses on matters within their area of expertise or about 

which they have personal knowledge. A witness who has 

spent years monitoring regulatory compliance and is intimately familiar with the behavior of a particular firm on 

trial can make a profound impression on a judge and jury. 

Moreover, the experience of testifying against an environmental defendant can be extremely empowering for a 

regulator used to "slapping the wrists" of offending firms. 

Indeed, using regulators as witnesses may help to foster ties 

between prosecutors and regulators. In fact, there is room 

for improvement in these relations, as the next section 

demonstrates. 

New Jersey's State environmental prosecutor, Steven Madonna, notes that poor communication is a problem that 

flows both ways. Sometimes agencies that refer cases to the 

prosecutor never hear about what happened to the case. 

Moreover, criminal procedure may be foreign to regUlators, 

38 local prosecullon ot Environmental Crime 

and there may be no one in the prosecutor's office available 

to explain the criminal prosecution process. 

There is a need for better two-way communication, according to Madonna. Prosecutors need to tell regulators what is 

happening with their referrals: is a case being prosecuted, 

being sent back for administrative action, or on hold? Once 

regulatory personnel understand criminal procedure, they 

may be able to use it to their advantage - for example, they 

may achieve compliance by advising a regUlated company 

that if it does not comply, they will refer the case for 

criminal prosecution. 

Problems of the Regulatory uMind-Set" 

A recurrent theme in environmental enforcement is the 

tension between regulators whose natural focus is on obtaining present compliance with regulations and prosecutors whose primary objective is to punish offenders and 

thereby deter future offenders. Many prosecutors believe 

that a com pliance program has a better chance of success if 

it is backed by a real threat of criminal action for past or 

continuing noncompliance. Differences between law enforcement and regulatory agencies may weaken the criminal prosecution effort. For example, regulators' emphasis 

on compliance may mean that they are not trained in 

evidence chain of custody and other prosecution procedures. Enforcement agencJes complain that regulators do 

not investigate or refer cases quickly enough, so the trails 

grow cold P Prosecutors interviewed for a Northeast Environmental Enforcement Project study of environmental 

offender characteristics confirmed this. They noted a lack 

of familiarity with aspects of criminal justice processes on 

the part of environmental agency inspectors. The area 

perceived to be most in need of improvement was the 

conduct of interviews with officials and staff of suspect 

firms,14 

The perception that the regulatory "mind-set" is an obstacle 

to intensified local prosecution of environm ental crim e was 

expressed by attorneys with the Monmouth County 

prosecutor's office. According to these prosecutors, the 

regulators do not use the enforcement tools at their disposal. 

The whole regulatory approach is very frustrating to them 

and seems to be completely at odds with the criminal 

enforcement or prosecutorial approach. 

Although relations between the Alameda D.A. and regulatory agencies are generally quite good, environmental unit 

attorneys there also pointed out the problem of conflicting 

priorities. They noted that while enforcement and prosecution are the primary concern of prosecutors, regulators 

remain focused on compliance or, alternatively, "just getting the guy out of town." The result may be the displacement of the offender to a neighboring county where the 

despoiling of the environment and exposure ofthe public to 

a health hazard is resumed unchecked. 

Just how disparate the priorities of regulators may be from 

those of prosecutors is demonstrated by the Alameda 

County Water District's (ACWD) view of criminal prosecution. For ACWD, the deterrent effect of prosecution lies 

not in the punitive impact of fines and the threat of 

incarceration but rather in demonstrating to defendants a 

more environmentally sound option for managing their 

business. The logic of this perspective is that once shown 

the cleaner way, businesses will pursue that approach. From 

the regulatory standpoint, com pliance rather than prosecution is the favored approach. Regulators tend to view the 

glass as half full and they want to fill it up by obtaining 

compliance from the violator. TheD.A. meanwhile sees the 

glass as half empty and seeks to prosecute the thiefwho stole 

the missing half. 

Regulators tend to move cautiously. They are more likely 

to have ongoing relationships with firms and to be more 

sensitive to business pressures for seeking noncriminal 

enforcement.1S Rather than pursue precipitous criminal 

prosecution or even harsh civil sanctions, which the regulator fears may drive the offender further into noncompliance and permanently im pair his or her ability to com ply in 

the future, regulators tend to favor a cooperative and patient 

approach to noncompliant firms. An illustration of the 

tendency of regulators to give com panies multiple opportunities to comply with environmental regulations is the case 

that provided the im petus for the formation ofthe Monmouth 

County environmental prosecution unit. In State of New 

Jersey v. Imperial Oil/Champion Chemical, Indictment 

No. 87-02-0287, criminal action was initiated only after a 

long period of administrative supervision by theMonmouth 

County Department of Environmental Protection (DEP) 

which had failed to produce corrective action. The case 

charged defendants with the illegal storage and disposal of 

hazardous waste and violation ofwatcr pollution laws. The 

defendants' defective filtering of oil had resulted in PCB 

contamination of a county drinking-water source. Only 

when criminal action was finally initiated did Imperial Oil 

and its parent company, facing a formidable case, plead 

guilty and agree to pay an $800,000 penalty. In this case, 

only the threat of criminal prosecution and debarment from 

government contracts was able to alter the company's 

behavior. 

Dealing with regulators who will consider prosecution only 

as "a last resort" can be frustrating for prosecutors. In 

People v. Robert A. Shearer, et al., CIv. No. 656387-5 

(Alameda Co. Super. Ct., filed October 1989), a California 

case involving the illegal storage and transportation of 

sodium cyanide, the State's OSHA wanted to pursue a lesser 

administrative penalty. Only through the considerable efforts of the Alameda D.A. was the environmental prosecution unit able to bring a civil action against the company. 

Charging the com pany involved overcoming the opposition 

of the fire marshal, among others, who, according to a 

prosecutor, just "wanted .•. [Shearer] out of town by sundown." 

Criminal prosecution becomes an uphill battle where regulators view the defendant firm as a client and the D.A. as a 

collection agency. In Colorado, for exam pIe, even when the 

need for a judicial approach is acknowledged, the Health 

Department tends to view most environmental violations as 

civil offenses. Thus, the agency refers the vast majority of 

cases to the A.G. rather than the D.A. With only one parttime investigator for criminal environmental matters, the 

Health Department has clearly demonstrated its preference 

for civil enforcement where administrative procedures are 

not proving effective. Only after the total failure of a firm 

to comply with a cleanup order will the Health Department 

refer a case for criminal prosecution. Even then, however, 

the defendant com pany benefits from its characterization as 

a firm "working with the Health Department" toward a 

rectification of the problem. 

In the negotiated plea of State of Colorado v. Colorado 

Chemical Specialties, Inc., Ralph Mika andRonaldDrake, 

88 CR 181 (Dist. Ct. Golden), defendants agreed to pay a 

$1 00,000 fine (aU but $10,000 of which was suspended) and 

to clean up a parcel of land contaminated by their illegal 

dumping of hazardous waste. Defendants were placed on 

unsupervised probation for eight years, but two years into 

the probation period serious disputes arose between the 

company and the State Health Department, the agency 

responsible for monitoring the clean up. The company has 

resisted th(J Health Department's supervision. Jefferson and 

Gilpin Counties' staff believe that the Health Department 

may be afraid of losing control of environmental enforcement if it refers too many cases for criminal prosecution. In 

their efforts to enlist greater regulatory agency cooperation 

in and support for environmental prosecution, it might help 

prosecutors to be more attentive to regulators' perception of 

environmental enforcement as their "turf." D.A.s are the 

newcomers to environmental enforcement and are likely to 

make more friends by acknowledging the historiccontributions of regulators to enforcement than by chastising them 

for not pursuing a more aggressive enforcement strategy. In 

some jurisdictions, regulators willingly play an integral role 

Interagency Cooperation 39 
in environmental prosecution programs. In Los Angeles 

County, health inspectors have been involved with the 

Environment Crime Strike Force from the very beginning. 

They are extremely committed 10 criminal prosecution and 

aggressive in their approach to investigation of cases. 

Laboratory Resources 

Testifying before a 1989 U.S. Senate Subcommittee on 

Toxic Substances, Environmental Oversight, Research and 

Development, Jefferson and Gilpin Counties' D.A. Donald 

Mielke identified the frequent unavailability of adequate 

laboraTOry and technical resources as a major stumbling 

block to effective local prosecution of environmental crime. 

The laboratory analysis needed in many environmental 

prosecutions reqUires a degree of scientific sophistication 

that may not always be available in State and local lab oratories. Sam pIe collection procedures and testing techniques 

are constantly changing and require state-of-the-art equipment and technical training to be accepted in court. 

As the need for scientific support of local environmental 

prosecutions has become more apparent, some States have 

set up laboratories to analyze hazardous materials samples. 

Typically, this function has been assigned to State health 

departments, in part becaust~ they have seemingly similar 

regulatory responsibilities. Unforttmately, health department personnel are not always well trained in forensic 

procedures necessary to the proper testing and preservation 

of evidence and maintenance of the chain of custOdy 

necessary to make that evidence admissible at trial.16 

D.A. Mielke has put forth two alternative strategies for a 

resolution of the environmental laboratory problem. The 

first idea calls for transferring much of the civil investigatory work load from the EPA's lab to the various regional 

EPA labs across the country. This would free the EPA Jab 

to devote itself to criminal matters. Mielke's alternatiVe 

plan calls for increasing the abilities orEP A's regional labs 

to perform chemiC-'ll analYSis for criminal prosecutions. 

One attractive feature of this latter plan is that, if technicHl 

assistance were available at the regional level, law enforcement officers and their toxic mateLials sample would not 

have to travel as far to reach the lab. Moreover, the EPA IS 

scientists and engineers would not have far to travel to 

testify as expert witnesses. Finally, the use of regional 

laboratories could help to enhance the communication 

between the EPA's scientific personnel and local law 

enforcement officers in the field.l? 

In some cases, prosecutors have turned to local police labs 

and national facilities such as the FBI's and EPA's Denver 

laboratory. This is an excellent laboratory and "the greatest 

40 local Prosacullon of EnvIronmental Crime 

friend of local law enforcement," according to Donald 

Mielke. But, with only forty scientists and thirty field 

engineers, it is hard-pressed to meet the need for analysis of 

samples in criminal cases from all over the U.S. Furthermore, with the present level of staffing, it is difficult to 

expect that EPA scientists will be able to testify in court 

cases brought by local prosecutors from across the entire 

country.IS 

Two common problems with understaffed laboratories are 

the loss of samples and slow turnaround time on analysis. 

Both occurrences can effectively incapacitate or at least 

drastically impede criminal prosecution. Several Colorado 

cases involving a furniture refinishing business and a car 

dealership exemplified these problems. In the first case, 

samples of toluene were lost, and in the second an analysis 

of sludge samples was completed only after the statute of 

limitations on bringing the action had expired. In both cases 

the inefficiency of the public laboratory effectively incapacitated the prosecution and prompted the D.A. to use 

considerably more costly private laboratories in the future. 

In Cook County, State and local laboratories are often 

backed up due to th~ heavy volume of drug cases in the 

system. Though a legitimate area for concern among prosecutors, the State's attorney's office has not encountered 

a~y chain of custody problems involving laboratory analySIS of samples. According to Cook County prosecutors, 

laboratory work is not only very slow but also exlremely 

expensive. In one case the office spent $138,000 on laboratory analysis. Moreover, such figures are likely to continue 

to be commonplace. Prosecutors are increasingly finding 

that the quality of the work and the service provided by 

private laboratories justifies the greater expense. 

Endnotes 

1. In general, effective prosecution of corporate crime 

reqUires cross-agency cooperation and coordination. 

SeeBenson, Cullen, and Maakestad,LocalProsec/ltors 

and Corporare Crime. 

2. A more extended discussion of the Los Angeles Strike 

Force appears in a separate NIJ Program Focus: T. M. 

Hammett and J. Epstein, Los Angeles COllnty Environmefllai Crimes Strike Force (Washington, D.C.: National Institute of Justice, 1993). 

3. M. A. O'Brien, "The Environmental Protection Forum," FBI LalV Enforcement Bul/e/in (Washington, 

D.C.: Fc.deralBureau ofInvestigation, April 1991), pp. 

9-12. 
4. People v. Robert A. Shearer, et ai., Civ. No. 656387-5 

(Alameda County Superior Court, filed October 2, 

1989). 

5. Yelverton, "Expanding the Role of District Attorneys," 

p.7. 

6. Mielke, "Bringing District Attorneys into the Enforcement Community," p. 4. 

7. See also M. Wright and W. Imfeld, "Environmental 

Crimes: Investigative Basics," FBI Law Enforcement 

Bulletin (Washington, D.C.: Federal Bureau ofInvestigation, Apri11991), pp. 2-5. 

8. Hammitt and Reuter, Measuring and Deterring, 

pp.26-27. 

9. Ibid., p. 26. 

10. Ibid" p. 25. 

11. The method of sam pUng chosen will vary depending on 

its intended use. In certain cases, "surface scraping" 

will be the proper sampling method. 

12. Wright and Imfeld, "Environmental Crimes," p. 4. 

13. Hammitt and Reuter, Measuring and Deterring, 

pp.27-28. 

14. Rebovich, Understanding Hazardous Waste Crime, 

p.54. 

15. Hammitt and Reuter, Measuring and Deterring, p. 28. 

16. Ibid., p. 6. 

17. Ibid., p. 11. 

18. Ibid., p. 5. 

Interagency cooperation 41 
-

Chapter 7 

Interjurisdictional Issues 

Sharing Information 

across Jurisdictional lines 

Many environmental crimes are complex and involve individuf,lls and firms in different jurisdictions. In such instances, it is extremely important for authorities to share 

information across jurisdictional boundaries. In an effort to 

foster better information sharing, the EPA funds four 

regional environmental enforcement groups. Originally 

formed in 1980 in response to media and public pressure 

regarding hazardous waste, the Northeast Environmental 

Enforcement Project (NEEP) was the first of the regional 

organizations. It has grown to a current membership of 14 

States, The primary purpose of the NEEP is to (1) promote 

and coordinate investigations umong member St~ltes, (2) 

provide technical assistance, (3) provide an information 

bank for all public records information with respect to the 

various components of the hazardous waste industry, and 

(4) develop the law enforcement partnership and provide 

annual training on environmental crimes investigations to 

alllevels of government.l Through their individual enforcement efforts, NEEP's founders realized that ha7..ardous 

waste violations were far too numerous, transient, and 

diverse to be dealt with by one jurisdiction. A regional 

approach was viewed as necessary in order to contend with 

this highly mobile industry.2 

NEEP's information exchange network assembles public 

records information on violations, licensing, license revoCc'ltion civil complaints, criminal indictments, and other 

matte~ relevant to actual or potential violations of hazardous waste legislation. A good illustration of the effectiveness of the network is that it makes it much more difficult 

for a TSDF operator who has lost his or her license in one 

memberState to transfer operations to a neighboring member State, Toward the goal of providing members with the 

most comprehensive information on the regUlation and 

enforcement of hazardous waste activities, NEEP I together 

with the New Jersey Division of Criminal Justice, issued 

Understanding Hazardous Waste Crime: A MII!tistate Examination o/Offense and Offcnder Characteristics in the 

Northeast (recently published as Dangerous Ground: The 

World o/Hazardous Waste Crime). This widely disseminated public.'ltion was designed as n resource toolth:lt would 

be helpful to mnnagerial and enforcement personnel in 

detecting and investigating hazardous waste crime, The 

consensus of NEEP participants was thut crime-specific 

data concerning hazardous waste offense and offender 

criminal characteristics were essential to the success of 

environmental enforcement programs across the country ,J 

The research study is un excellent cxamp}e of constructive 

collective thinking on environmental crime. 

In recent years the EPA has used NEEP, an effort jointly 

funded by the EPA and the participnting St:ltes, as a model 

for the establishment of three other multistllte regional 

environmental organizations. Set up to help meet nationul 

environmental enforcement goals, the three groups are th~ 

Midwest Environmental Enforcement Association, the 

Western States Huzardous Waste Enforcement Network, 

and the Southern Environmental Enforcement Network. 

Even the names of some of the organizations refiecttheir 

multimedia approach to environmental enforcement. The 

groups have shifted uwuy from a narrow focus on hazardous 

wuste enforcement to one thut includes surface water and 

groundwater Issues, pesticides, und ulr pollution as well as 

hazardous waste. 

The Cook County State's attorney's office is u member of 

MEEA. According to prosecutors, the associatlon's members share information at their regularly scheduled meetings on active cases, ongoing investigations, and policy and 

environmental legislation. The association's stnllghtforward law enforcement trulning film (discussed earlier) 

enthusi~lSlicnlly endorses the view that law enforcement has 

{\ major role to play in detecting ~1I1d prosecuting environmental crime. 'The video represents the cooperutive m ultlstate 

approuch to environmental enforcement ut its best. 

Inlerjurisdlctlonollssues 43 
- 

Local prosecutors nationwide are members of the Regional 

Enforcement Associations and have access to the training, 

information, and networking resources available through 

these organizations. Many statewide district attorney groups 

are represented on the associations. For example, the 

California District Attorneys Association, the Statewide 

Association of Public Attorneys of Utah, and the Colorado 

District Attorneys Council have representatives on the 

Western States Hazardous Waste project. The Regional 

Enforcement Associations' membership includes 47 States 

and 3 Canadian provinces: Ontado, Alberta, and British 

Columbia. The information services provided by the RegionalEnforcement Associations are extensive. TIle Western States projll:ct, for example, is making available State 

and local criminal case information, a brief bank, model 

documents, business financial records, and expert witness 

services, among others. The four associations' information 

programs, linked electronically, represent a nationwide 

information network for State and local prosecution of 

environmental crimes. 

Sometimes international as well as interjurisdictional coordination may be required in the battle against environmental crime. Today it is not unusual for environmental criminals to haul hazardous waste <\Ct03S international borders 

forim proper disposal in natio,'1s with less effective crim inal 

environmental enforcement. United States v. Franco and 

Torres, U.S. District Court, Cen\ralDist. CA, No. 90-3520· 

TJH, involved a scheme to tr.ansport hazardous waste 

through California and illegally dispose of it in Mexico. 

This case was discussed in d~tail in Chapter 3. 

State-Level Prosecution 

While the focus ofthis report is on local prosecution efforts, 

it is important for readers to be aware that there are a number 

of aggressive and effective State-level environmental prosecution programs. State programs may be important allies 

and supporters to local prosecutors as they develop cases. 

Below, the efforts of several State-level programs arc 

sketched. 

ThcArizona attorney general's office instituted an environmental enforcement program in 1984, in response to incipient organized crime involvement in the State's hazardous 

waste industry • The Attorney General's program centers on 

a team approach involving a number of regUlatory and 

investigative agencies at the Federal, State, and local levels. 

Three regional task forces, coordinated through the A.G. 's 

office, have been created in Arizona to develop environmental prosecutions. 

44 Local prosecution or Environmental Crime 

Within Iheattorney general's office, the environmental unit 

is staffed by trained and experienced prosecutors and 

criminal investigators with full poUce powers. All staff 

have been cross-trained in criminal investigative procedures and the technical aspects of environmental crimes. 

'The Massachusetts Department of Environmental Protection (DEP) employs a strike force model to attack environmental crime in the Commonwealth. TIle force consists of 

a small number of experienced environmental criminal 

investigators who work closely with the attorney general's 

environmental prosecution unit. 

The DEP has also created a hotline that citizens can call to 

report suspected environmental violations. Since its inception the toll-free number has proved to be an important 

source of tips on environmental cases. Although many of 

the calls involve relatively localized problems such as a 

neighbor's pouring used motor oll down the drain, other 

calls have led to the investigation of large-scale suspected 

violations of State environmental law . The Department of 

Environmental Protection employs helicopter fly overs as 

well as routine inspection visits by the department's staff of 

trained inspectors of the workplaces of suspected and 

identified environmental wrongdoers. 

In 1982 the New Jersey attorney general's office formed an 

environmental unit and asked each county in the State to 

designate an assistant prosecutor and a county investigator 

who would become well versed in environmental statutes. 

In 1990, New Jersey Governor James Florio created the 

position of State environmental prosecutor to coordinate 

the State's response to environmental crime. In order to 

achieve an effective coordination and prioritization of the 

criminal, civil, and administrative aspects on the State 

level, State Environmental Prosecutor Steven Madonna 

works closely with the county prosecutors to make decisions regarding who will take the lead on cases and by what 

route (civil or criminal) they will be pursued. The State 

environmental prosecutor has the last word on such decisions, but the process is viewed as a cooperative one. 

Madonna oversees the prosecution of "priority environmental cases" and coordinates approaches to cases that 

cross State lines. Also responsible for fostering the development of county environmental task forces and providing 

them with training, Madonna is the Nation's first State 

environmental prosecutor with this role. 

Madonna's office is also charged with ensuring that the 

county prosecutors receive the necessary support and resources to complete county-Ievelinvcstigatlons, and ensuring that matters of multicounty or statewide impact are 

L ______________ _ --------- ---~--------~-~----------
referred to the State grand jury and the State Division of 

Criminal Justice, either as the sole prosecuting agency, or 

in a cooperative mode with the county prosecutors. The 

State environmental prosecutor also works in concert with 

established environmental groups to harnt',ss and focus their 

eyes and ears as environmental enforcement "deputies" and 

to utilize their insights, energies, and expertise, 

The EnvironmentalEnforcement Section of the Ohio Attorney General's Office has advocated for and subsequently 

built an aggressive program on an important statutory 

revision. In its first criminal hazardous waste case, the Ohio 

environmental prosecutors learned an important lesson. In 

State v, Campbell, 13 Ohio App.3d 348, 469 N.E.2d 882 

(1983), the Environmental Enforcement Section learned 

that a potential defense of environm ental defendants was to 

claim a lack of knowledge or understanding of the complexities of the hazardous waste regulatory system. The 

attorneys recognized that the "knowing" culpable mental 

state in Ohio Revised Code § 3734.99 served as an incentive 

to handlers of hazardous wa'lte to avoid becoming familiar 

with legal requirements for handling such materials. Claims 

of unfamiliarity with the regulations would make proof of 

knowledge more difficult.4 

In 1984, as a result of this experienCf. the attorney general 

advocated to the Ohio general assembly that the culpable 

mental state for hazardous waste crimes be reduced from 

"knowing" to "reckless." The general assembly agreed and 

enacted a bill that resulted in a revision ofthe State's statute 

on culpable mental state. Ohio Revised Code § 3734.99 

provides Ohio's environmental prosecutor with an important strategic advantage over jurisdictions that employ a 

"knowing" mental state for environmental crimes.s 

The degree of State-level prosecution of environmental 

cdme varies from State to State. State environmental 

crimes units may be better equipped logistically to deal with 

environmental violators who cross municipal and county 

lines.6 In many instances, however, as is the case in 

Monmouth County, smallsites may not attract the attention 

of the State. Timing is another consideration. Unless a case 

presents an extreme emergency, the State will probably not 

be uble to respond as quickly as the local or county unit. 

According to Monmouth county prosecutors, the county 

should do the "bread and butter" cases. 

Under New Jersey's Criminal Justice Act, the A.G. may 

supersede the county prosecutor on any criminal matter. In 

practice, however, this rarely occurs. The main concern is 

that the case be properly handled and that the county have 

• 

the resources to manage its prosecutions. Steven Madonna 

ofthe New Jersey A.G. 's office likens environmental cases 

to drug prosecutions, with the exception that environmental 

cases are, on the whole, more dangerous to investigators 

because of hazards at the scene. Sam pl:a collection issues in 

environmental cases are often more complex than in "traditional" criminal investigations. Madonna believes that 

the State should undertake the long-term proactive environmental investigations that may be too taxing on a county's 

resources. 

In Illinois, the A.G.'s role in environmental prosecutions is 

severely limited by his or her lack of access to the grand 

jury. Consequently, there is little competition for the spotlight between the A.G. and the State's attorneys. 

Under California law, the attorney general has primary 

responsibility for civil and appellate matters but has no 

original jurisdiction in criminal cases. However, if the 

district attorney declines to prosecute a case, the A.G. may 

pursue the prosecution. Also, if a district attorney's office 

declines prosecution, the case can be referred to the A.G. for 

possible civil proceedings. 

New York Attorney General Robert Abrams has taken an 

aggressive posture on State-level environmental prosecutions. In People v. Pymm Thermometer, No. 930/86 (N.Y. 

Sup. Ct., Kings City, Nov. 13, 1987), the New York State 

A.G. 's office teamed up with the Brooklyn D.A. to obtain 

a 21-count indictment against a Brooklyn electroplating 

company, its owners, and a foreman for unlawful management of hazardous waste; endangering public health, safety, 

and the environment; violating sewer authority pretreatment standards; tam pering with monitoring equipment; and 

reckless endangerment. After a month-long trial, a Brooklyn jury convicted the company and two of its officers of 

assault with a dangerous instrument ac; well as other charges. 

The instrument in this case was mercury, a toxic substance 

as dangerous ~lS a knife or gun.7 A few months after viewing 

a videotape of the search warrant executed against the 

company, A.G. Abrams wrote, "It depicted Dickensian 

conditions in an antiquated factory; large open vats of 

plating solutions without required ventilation, pools of 

chem icals on the work floor, leaking drums piled high, ••. "8 

In the occupational safety field Abrams sees the role of the 

State prosecutor as stepping in to fill a void caused by weak 

Federal enforcement of occupational safety. Abrams's 

acknowledgement oftheseverity ofthe problem of environmental cdme is a welcome one. His office has followed up 

with aggressive criminal prosecution. 

InlarJurlsdlclionallssuas 45 
-

Federal Activity 

The Federal government's involvement in criminal environmental prosecution is typically confined to very major 

cases. Traditionally, Federal participation has come in tile 

form oftechnlcal assistance offered and laboratory analysis 

conducted by the EPA's laboratory in Colorado (it has 

recently moved to Washington) or FBI assistance on 

interjurisdictionalmatters. The EPA'sinvolvement in People 

of the State of Colorado v. Colorado Chemical Specialties, 

Inc., Ralph Mika, and Ronald Drake, 88 CR 181 (District 

Ct. Golden), helped develop a close working relationship 

between the agency and the Jefferson and Gilpin Counties' 

D.A.'s office. Similarly, the United States Department of 

Justice (DOJ) and EPA have played important roles in 

international environmental cases such as Franco (discussed earlier). 

Enforcement of air pollution laws tends to bedominated by 

Federal involvement. However, because of the severity of 

its smog problem, Los Angeles is an exception among 

counties for its active crim inal enforcement of air pollution 

statutes. TIle South Coast Air Quality Management District 

(covering the Los Angeles area) has 14 investigators, and all 

its criminal cases arc referred to the D.A.'s office. The 

District also has its own prosecutor, who handles civil and 

administrative matters and makes thedetermination whether 

a case is to be handled through civil or criminal processes. 

A case referred to the D.A. for crimirlal prosecution but 

declined may be referred back to the Air Quality Management District or to another regulatory agency for civil 

enforcement action. The EPA has prom ised greater Federal 

46 Local Prosecullon or Envlronmenlal CrIme 

participation in criminal environmental enforcement in the 

1990s. Even as it has done so, however, EPA has declared 

that State rather than Federal authorities should have the 

front-line responsibility for enforcement of most of the 

environmentallaws.9 

Endnotes 

1. V. A. Matulewich, "Environmental Crime Prosecution: 

A Law Enforcement Partnership," FBI Law Ellforcemellt Bulletill (Washington, D.C.: Federal Bureau of 

Investigation, April 1991), p. 24. 

2. Rebovich, Understanding Hazardous Waste Crime, 

p. iii. 

3. Ibid. 

4. Celebrezze et ai., "Criminal Enforcement," p. 227. 

5. Ibid. 

6. Matulewich, "Environmental Crime Prosecution," 

p.23. 

7. R. Abrams, "Safeguarding the Workplace: Environmental Hazards May Be Crimirlal," Trial (June 1991): 

20. 

8. Ibid., p. 19. 

9. U.S. Environmental Protection Agency, Enforcement 

Four-Year Strategic Plan, p. 58. 
,. -

Chapter 8 

Developing and Trying Cases 

Sources of Information 

on Environmental Cases 

In addition to the law enforcement and regUlatory agency 

staff discussed earlier, individual private citizens who are 

aware of what to look :nr c~n be an important source of 

information on environmental crimes. The Public IS Role in 

Environlllelltal Enforcement, a March 1990 EPA publlca~ 

tion, offers a good overview of how the public can help stop 

pollution and environmental violations. It describes approaches that can help the reader deal with the types of 

violations most often encountered by the public. 111e three 

most important pieces of advice are (1) to make full and 

careful observations of the problem, (2) to commit these 

observations to writing, and (3) to report the observations 

to the proper authorities,1 The Midwest Environmental 

Enforcement Association is making a video to heighten 

public awareness of environmental crime and to encourage 

the public to provide authorities with information on suspected violations. 

In Cook County, citizen calls to regulatory or law enforcement agencies often initiate .investigative or remedial responses to illegal disposal or toxic exposure. Indeed, 

multijuris~.!ctional studies confirm that most cases originate wjth tips by unrelated citizens or current or former 

em ployees ofthesuspect firm .t'fhe joint Northeast Hazardous Waste Project (NEHWP)3 I New Jersey Division of 

Crim inal Justice study of offense and offender characteristics in the Northeast found that most cases were reported by 

neighbors of firms where wastes were being handled; they 

were alerted by direct observation of activities, by chem ical 

odors, or by extraordinary nocturnal activities or noises.4 

Local law enforcement officials and prosecutors play ~n 

important role in fostering public awareness of environmental crime by encouraging community members to 

repor~ suspicious nighttime trucking activity, unpleasant 

odors emanating from neighbOring land, and sewage dis~ 

charges into lakes and streams. Business compr:titors, 

present and former disgruntled employees, and environmental groups are also potentially important to detection 

efforts. Prosecutors, however, report receiving little assistance from environmental groups. According to D.A.s, 

community and environmental groups tend to misunderstand criminal procedure and the rules of evidence and 

expect prosecutors to act in ways they are not empowered 

to do, This may lead to frustration and anger on the part of 

the advocacy groups. 

Citizen tips are an important source of information on 

environmental crimes, and the public should be encou:aged 

to provide information to the appropriate enforcement 

authorities. However, at least one study has found thatlhe 

majority of tips arc of low quality, and many agencies are 

overwhelmed with citizen complaints or reports to toll·free 

telephone hotlines.s As the public becomes better educated 

about environmental crime, the proportion of tips that are 

of real value may increase. 

The Rand Corporation study of hazardous waste enforcement found that the primary sources of leads regarding 

illegal disposal of hazardous waste are regulatory inspections, surveillance, and emergency-response operations. 

Hash collectors on occasion find hazardous waste mingled 

with other solid waste, and workers have been injured when 

tnese wastcs spill, ignite, or explode during compaction, 

The elaborate hazardous wastc manifest system has not yet 

proven useful for developil)g cases, in part because most 

States have apparently not yet developed adequate dataprocessing systems.6 

Civil versus Criminal lawsuits 

As noted earlier. many environmental offenses can be 

nddress.~d through crim inal prosecution or civil lawsuits. It 

is up to the prosecutor to decide the best Course of action in 

each casco Most prosecutors believe that the deterrent effcct 

of criminal conviction on environmental offenders is conDeveloping and Tryltig Cases 47 

-------------.---~-----. -.-----. ---~--~-~ "---~~ ---"------- "- - --- -~ 
siderable. According to D.A. Donald Mielke, a leading 

advocate for expanding the local prosecution of environmental crime, Hexperience has taught us tbat true polluters 

view •.. [civil and administrative action] as a part of the 

cost of doing business. Until a potential for criminal prosecutionis added to the equation, many of these environ mental criminals will continue to illegally store, transport and 

dump hazardous waste!) in blatant violation of the law.,,7 

Many prosecutors also feel that the deterrent effect is 

particularly strong on major businesses and their officials 

and that criminal enforcement may tip the scale as wouldbe polluters weigh financial savings against punitive consequences.s 

Procedurally, many cases can be effectively handled both 

civilly and criminally. Under some circumstances, both 

civil and criminal proceedings may be initiated concurrently, and if this occurs, parallel prosecution issues may 

arise. Cook County has relied on criminal prosecution 

coupled with a civil cost-recovery action. In addition, 

sometimes suits for injunctive relief and cost recovery, as 

well as criminal Charges, may be pending simultaneously. 

Since the Supreme Court's decision in U.S. v. Halper. 490 

U.S. 435 (1989), holding that the double jeopardy doctrine 

barred a civil suit for recoupment following a criminal 

prosecution, concurrent civil and criminal actions have 

exposed the prosecution to defense motions seeking dismissal ofthe "second" action. The State's attorney's office 

has not had problems with parallel prosecution, but it has 

had motions filed against it for abuse of prosecutorial 

discretion. This has occurred when it has filed criminal 

charges against defendants who llllege they were improperly charged under the criminal statutes. The motions hElve 

the effect of confounding and prolonging the case by 

forcing the parties and the court to focus attention on 

nonsubstantive, procedural matters. 

In the case ofparaUel prosecutions, Cook County prosecutors have had to take care that information from the crim inal 

investigations (for example, obtained through the grand 

jury) is ndt used to advance the civil action. As part of its 

Ciscreening" of the criminal prosecution from the civil case 

the office assigns different attorneys to the separate actions. 

Th(' difficult decision whether to proceed civilly or criminally may involve considering the relative speed of prosecution, the different standards of proof required, the 

deterrent effect, lind the desirability of compliance and site 

remediation versus punishment. Some local prosecutors 

have both civil and criminaljurisdiction. Though almost all 

of its work to date has been criminal, the Jefferson and 

Gilpin Counties' D.A.'s office is one such office. Cook 

48 Locol Prosecution of Environmental Crlma 

-

County has criminal, civil, and administrative jurisdiction 

and has worked out an effective system for designating a 

case's approach. Civil cases, consisting primarily ofinjunctions and cost recovery and forfeiture cases, are pursued if 

the office believes the defendant is willing to cooperate in 

a resolution of the problem. Criminal prosecution is reserved for so-called bad guys. Included here are those who 

seem intent on engaging in willful violation ofthe law andl 

or are taking advantage of helpless employees or others and 

offenders who are unwilling to cooperate in remedying the 

problem. 

The Alameda County D.A.'s office has both civil and 

criminal jurisdiction but prepares all of its cases as though 

they will be tried crim inally. From an investigative perspective, preparing for criminal trials that require proof"beyond 

a reasonable doubt" assures that even if the case is ultimately pursued civilly, the higher standard of proof will 

have been met. Typically, the office will proceed with a 

civil case when some kind of evidentiary shortfall precludes 

criminal prosecution. It is a case.by-case determination, 

and in addition to weighing evidentiary concerns, the 

decision hinges on the egregiousness of the conduct and the 

defendant's character. The office will seek injunctive relief 

where there is a need to put a quick stop to harmful 

environmental conduct. Moreover, civil penalties arc an 

importantsourceofoperating revenue for the office, Awards 

arc commonly shared with the other investigative and 

regUlatory agencies involved in the case. Alameda prosecutors report that criminal prosecution is generally less laborand document-intensive than civillitigation with its lengthy 

discovery. 

The Los Angeles County D.A.'s office has both civil and 

criminal jurisdiction, but under a directive from the D.A. 

prosecutors arc instructed to use civil proceedings only 

when criminal remedies are not available. L.A. prosecutors 

report that defense attorneys frequently propose a civil 

settlement in order to avoid a criminal case against their 

clients. The office's policy is to turn down such offers and 

not perm it the deterrent value of the crim inal proceeding to 

be diluted in this way. In fact, L.A. prosecutors expressed 

the view that environmental crimes arc crimes of violence 

against the environment (and often the public) which must 

not be allowed to go unpunished. Prosecutors in Los 

Angeles also noted that criminal prosecution is faster than 

the civil route and that the availability of criminal fines and 

penalties is just as great as in civil proceedings. 

Unlike the other offices studied for this report, the Monmouth 

County prosecutor's office has only criminaljurisdiction. If 

it recogn izes the need to bring civil or adm in istrative action, 
this must be initiated by other departments or agencies at the 

local, county, or State level. In New Jersey as well as in 

many other States, authority to proceed by way of civil 

action against an environmental offender rests with city 

attorneys and the State attorney general. Lacking the civil 

action alternative, Monmouth's environmental unit will 

often resort to bringing criminal charges against an environmental offender with the intention of pressuring the offender into regulatory compliance. Though effective, a 

variation on this approach is not universally endorsed. 

Although there may be a temptation to file criminal charges 

against a "deep-pocketed" defendant, and then, using the 

threat of criminal penalties, switch to a civil proceeding, the 

temptation should be resisted. A defendant may offer a civil 

settlement but the prosecutor cannot be the one to suggest 

it. 

It is also important that civil and administrative proceedings 

against a violator not frustrate criminal action. Indeed, 

guarding against such problems is one of the main purposes 

of New Jersey's State-county protocol on environmental 

prosecution (discussed earlier). According to State Environmental Prosecutor Steven Madonna, his policy is to 

consider a case "holistically" to determine which types of 

proceedings are most important to pursue and how various 

approaches to a matter can be pursued comp1ementarily. 

Overcoming Obstacles to 

Environmental Prosecution 

Prosecutors' Attitudes 

Prosecutors will have to overcome formidable attitudinal 

obstacles and misconceptions about environmental crimeif 

they wish to expand their 1\')le. Many D.A.s may initially 

resist getting involved in envi!;'onmental cases because they 

think these cases are hopelessly complicated and impossible to win. As elected officials, prosecutors are keenly 

aware of their offices' rates of success in particular crime 

areas. In California, the State district attorney's association 

has sought to counter reluctance to undertake environmental cases by offering workshops on the subject for local 

prosecutors and regUlatory and investigative personnel. 

Sponsoring environmental prosecution conferences is an 

acknowledgement that the key to ensuring proper control of 

the environment is a r.onsistent and continuing local government presence in enforcement. Assuring prosecutors 

that one docs not need an advanced degree in environmental 

sciences to prosecute environmental crim inals with success 

'. 

has been a central aim of workshops held by the California 

District Attorneys' Association. 

Though environmental cases pose unique problems, as with 

"traditional" criminal cases a sound approach to investigation and prosecution will usually yield success. Often, much 

of the technical expertise required for environmental prosecutions can be l~arned on the job through environmental 

law training programs. Prosecutors in the Cook County 

Public Interest Bureau reported that while environmental 

cases require a familiarity with a variety of chemical 

substances, the technical demands are not unduly burdensome. On average, environmental prosecutions can be 

expected to require fewer hours of preparation as more 

offices formulate environmental case strategies and as 

prosecutor~ learn to counter the defense's dilatory tactics. 

County rlrosecutors in the five jurisdictions studied for this 

report appear to have succeeded in instilling in their assistant prosecutors a confidence in their environmental 

prosecutorial abilities. 'The tendency of environmental unit 

attorneys to be older and professionally more mature has 

also helped the five jurisdictions achieve success in this 

"nontraditional" criminal realm. 

Defense Attitudes and Tactics 

Environmental defendants and their defense counsel often 

take the view that if Charges are to be brought at a11 they 

should be civil rather than criminal. To many corporate 

defend~nts, civil penalties and one-time cleanup costs arc 

part of the cost of doing business. Offending companies 

wish to keep it that way. Ongoing compliance, however, is 

generally quite expensive and may put offenders at a 

competitive disadvantage. Criminal penalties, especially 

jail sentences, may also serve to change the widespread 

attitude that pollution and illegal disposal of hazardous 

waste are acceptable business practices. In drafting chargrs 

and negotiating final settlements, some prosecutors have 

begun to consider the amounts that companies allegedly 

have saved over the years by operating out of compliance 

with environmental1aws. 

The widespread use of dilatory trial tactics by defense 

counsel for environmental defendants allows companies to 

continue to operate in violation of environmental laws 

pending finat adjudication. In Cook County j if an adm luistrative body such as the POllut~on Control Board rules 

against a firm, the defense attorneys will immediately 

appeal the case to the appellate court, and if necessary back 

and forth between the board and the appellate court. Many 

environmental defendants are able to IIstonewall" the prosDeveloping and Trying Cases 49 
ccution for several years by using this tactic. In the meantime the strategy is saving the offender the cost of compliance and increasing the likelihood that witnesses will die or 

disappear and evidentiary weaknesses in the case will 

develop. The tendency of counsel for environmental defendants to initiate settlement negotiations with prosecutors 

with questions like, "I-low much money are you looking 

for?" reflects the tendency of defendants and defense 

counsel to view environmental matters as essentially civil. 

Undoubtedly, it also betrays a defendant company's or 

individual's concern with the stigma of being labeled an 

environmental criminal. 

The quality of the environmental defense bar, which now 

includes many fonner prosecutors, can only be expected to 

improve as offenders commit still greater resources to 

ensure the clearing of their names. In People v. Chicago 

Magnet Wire Corp., 17 C.S.H. Rep. (BNA) 195 (Ill. App. 

Ct. July 8,1987), a major case brought by the Cook County 

State's attorney's environmental unit, thedefendnnt 's twelveattorney defense team relied on favorable use of the press 

and sophisticated pretrial tactics to delay the start ofthe trial 

for seven years. Typically, once a case does go to trial, 

environmental defendants waive their right to ajury out of 

fear that prosecutors will be able to exploit a jury bias 

against "deep-pocketed" corporations. With the exception 

of corporate prosecutions in "company towns," where 

defendants believe prosecutors will be less likely to make 

emotional appeals to the jury, the defense usually favors a 

bench trial. 

Attitudes of the Public 

The NEHWP/New Jersey Division of Criminal Justice 

study of offense and offender characteristics in the Northeast found that hazardous waste prosecutions are often 

exposed to the dual pressures from the public demanding 

acceleration of criminal cases and from corporate interest 

demanding that they be abandoned. In the first instance, 

these demands are largely due to the public fear of harm 

from hazardous wastecrimesitesj in the second instance the 

demands are due to the power of a criminal prosecution to 

ruin a corporation's reputation.9 

In fact, the public's attitude toward environmental criminal 

prosecution is considerably more complex than either the 

Northeast study or the defense bar's fears reflect. While 

somo environmental crime may be so devastating as to 

br,ing local residents into the streets protesting any delay in 

an offender's prosecution, criminal investigation of large 

local employers may elicit resounding demonstrations of 

pUblic support for defendant com panies. Prosecutors often 

50 Local prosecution of Environmental Crime 

must fight an uphill battle in trying to convince the public 

of the severity of illegal behavior by an offender which may 

have no immediate manifestations. An environmental 

criminal's actions tOday may produce deleterious results 

that may not by discernible for years. If criminal prosecu· 

tionis to have the maximum deterrent effect, the prosecutor's 

dilemma is that charges need to be pursued now, at what 

may be the most difficult time to prove a case against an 

environmental offender. Acknowledging the historicattitudinal ob'Stacles to criminal prosecution of environmental 

crime, EPA has enlisted the participation of the FBI in its 

Enforcement Four-Year Strategic Plan. The EPA plan 

recognizes the need to develop the concept of the environment as a victim and foresees working with the FBI to 

develop environmental cases that send a specific message 

to preselected geographic or industrial segments of the 

regulated community as well as the general public.1O 

Public consciousness can also be raised by cases with 

immediate and serious consequences for victims. For example, in Cook County, the two most important environmental crim inal cases brought by the State's attorney to date 

were actually occupational safety cases in which prosecutors were able to produce dramatic evidence of tangible 

harm to individuals in the workplace. I! However, both cases 

faced serious legal and other obstacle8. Indeed, one ultimately resulted in an acquittal. People v. Film Recovery 

Systems, Inc., 84 C. 5064, 84 C. 11091 (Cook Cnty. eir. 

1985), involved the death of a Polish immigrant worker 

from cyanide poisoning. The defendant company, Film 

Recovery Systems, was engaged in the business of recovering silver from used X-ray film using a sodium cyanidebased recovery process. The largely undocumented work 

force at the primitive plant was not provided with adequate 

protective clothing orbreathing apparatus, and many workers had complained of headaches, nausea, and eye and skin 

irritation prior to Stefan Golab's death. In fact, workers at 

the plant never even knew they were being exposed to 

cyanide. 

The prosecution resulted in the conviction of the 

corporation's president, plant manager, and plant foreman 

of murder and several counts of reckless conduct for their 

actions in exposing company employees to hydrogen cyanide. This was one of the first criminal prosecutions of a 

corporation and its officials for offenses traditionally considered individual in nature. According to Assistant State's 

Attorney Jay Magnuson, legally speaking, Film Recovery 

was nothing new: "We were just applying the old basic law 

in a different area." Factuully speaking, however, Film 

R.ecovery was so extreme one doubts it will soon, or often, 

be duplicated.12 The Film Recovery defendants' actions 
== 

were so unconscionable and the lack of concern for employee safety so egregious that a united public's condemnation ofthecom pany was understandable. The case clearly 

presented a greedy corporation treating its unsuspecting 

employees as utterly dispensable. The Film Recovery 

defendants appealed their convictions to the First District 

Appellate Court. After nearly three years and a second 

round of arguments, the appeals court reversed the convictions finding that in convicting defendants of both murder 

and reckless conduct, the trial court had in effect convicted 

them of having two incompatible states of mind. If they had 

intended to kill somebody, they could hardly be guilty of 

reckless conduct, which is a disregard for the results of one's 

actionsY The Cook County State's attorney's office is 

preparing the case for retrial. 

Prosecutors have also experienced disappointments in bringing cases about which they feel especially strongly. In 

People v. Chicago Magnet Wire Corp., 17 O.S.H. Rep. 

(BNA) 195 (Ill. App. Ct., filed July 8, 1987), Cook County's 

second major occupational safety and health case, defendants were alleged to have exposed employees to toxic 

substances in the workplace. The trial court granted the 

defendant company'smotion to dismiss criminal charges of 

aggravated battery and reckless conduct and the Illinois 

Appellate Court affirmed. In its decision, the appellate 

court wrote that "OSHA does not permit the state to 

prosecute conduct or conditions in the workplace under 

state criminallaws in so far as the conduct or conditions are 

regulated by OSHA." The case was recently retried, but the 

State's attorney was unsuccessful in its bid to convict 

defendants. 

Attitudes of Judges 

In the view of prosecutors, some judges view environmental 

cases as more appropriately handled by civH or adm inistrative means than by criminal adjUdication. They may dismiss environmental prosecutions that they believe should 

not be tried criminally. Judges may also think it necessary 

to tum to regulatory agencies for advice on determining a 

monetary fine, further perpetuating the administrative and 

regulatory bias ofmany jurisdictions. In one Colorado case, 

the judge, concerned that an excessive fine would deter or 

delay cleanup of the site, which he considered the case's 

primary objective, sought out the district head ofthe Health 

Department for guidance. According to prosecutors, the 

judicial fear that imposing a severe fine on an environmental offender will place too great a financial burden on a 

company, rendering it even less able to bring itself into 

compliance and possibly further perpetuating the environmental damage, is widespread. Cook County prosecutors 

believe that judges often resist sending white-collar defendants to prison because there is barely enough room in the 

jails for the "hard-core" street crim inals. According to these 

prosecutors, there is a need to educate some judges that "a 

criminal is a criminal." 

Prosecutors in Los Angeles believe that they, as well as 

pressure from the public in a State where judges must stand 

for reelection, have succeeded in making judges more 

receptive to criminal environmental cases. By contrast, 

staft'in the Alameda County D.A.'s office report that the 

resistance ofthe judiciary to environmental cases is a major 

problem. Judges with crowded dockets often assign environmental criminal cases a low priority. 

Key Legal Issues 

A number of legal issues are particularly relevant to environmental investigation and prosecution. Those include 

search and seizure, legal evidence for the presence of 

hazardous waste orother pollutants, the defendant's state of 

mind, and corporate responsibility. Each of these is discussed briefly below. Thesediscussions are not intended to 

be in-depth treatments of the subjects, each of which is 

extremely complex in its own right. Rather, the sections 

seek to raise some key issues for consideration of prosecutors new to the field. Other resources and training that 

provide more intensive coverage of these topics are available.An Ohio assistant attorney geneml produces a periodic 

update of case law on important constitutional and other 

legal issues relevant to environmental prosecution. Details 

on this case-law update and othel' available resources arc 

presented in Appendix B. 

Search and Seizure 

Obtaining evidence that will be admissible in court in 

environmenta I prosecutions, as in all other types of crim inal 

cases, requires compliance with the search and seizure 

provisions ofthe Federal constitution and the relevant State 

constitution. In an environmental investigation, the search 

for evidence normally involves obtaining access to the 

prem ises of an individual or firm suspected ofa violation for 

the purpose of securing samples for laboratory analysis, 

relevant documents, interviews, orother material evidence. 

In order to gain access to a site a government agent must 

either secure a warrant authorizing the search or meet the 

conditions necessary for a warranllcs..<; search. 

Developing and Trying Cases 51 
... -

Most jurisdictions define a search warrant as a court order 

in writing, in the nameofthe People, signed by ajudgeand 

directed to a peace officer, commanding him or her to 

search for personal property. In the view of Deputy District 

Attorney Larry Blazer, a prosecutor with the Alameda 

County D.A.'s Consumer and Environmental Protection 

Division, in environmental investigations the search warrant is generally the safest and most effective tool available 

to secure samples of suspected hazardolls wastes or materials, to seize or photograph instrumentalities used in the 

commission of a criminal violation, and to locate and seize 

documentation relating to the violations. 

The Fourth Amendment applies no differently to environmental crim e searches than to other searches, so prosecutors 

new to environmental prosecution should already be familiar with this area of criminal procedure. Following the 

United States Supreme Court's ruling in Camera v .Municipal Court, 387 U.S. 523 (1966), creating the distinction 

between administrative inspection warrants and search 

warrants, a number of States took steps to codify the 

procedural distinction (see California Code of Civil Procedure § 1822.51). In California and the other jurisdictions 

that have made the distinction between a search warrant and 

an administrative inspection warrant, the attractiveness of 

the search warrant is that it can authorize the search and 

seizure of items anywhere on a suspect's premises in which 

there is probable cause to believe the evidence sought in the 

warrant may be located. An administrative inspection 

warrant can be obtained with less than a showing of crim inal 

probable c.:1use, but the resulting search is limited by the 

provisions of the State's legislative or regulatory sections 

authorizing the inspection. As an illustration, if a regulation 

states that a city building inspector is authorized to inspect 

the foundation of a building tu detetmine whether the 

building is structurally sound, the building inspector, armed 

with an administrative inspection warrant, will not be able 

to search parts of the building that have no bearing on the 

building's structural soundness. 

A search warrant cannot be issued except upon probable 

cause supported by an affidavit, nam ing and describing the 

person, and particularly describing the property and the 

place to be searched. Under the U.S. Supreme Court's 

ruling in Zucker v. Stanford, 436 U.S, 547 (1978), probable 

cause exists for the issuance of a search warrant when the 

facts known to the affiant, or related to the affiant by a 

reliable source, are sufficient to create a reasonable and 

prudent belief lhat the items sought are connected to 

criminal activity and that they will be found on the property 

to be searched. To obtain a search warrant, the governm ent's 

agent must be able to demonstrate that there is probable and 

52 Local Prosecution of Environmental Crime 

reasonable cause to believe and the agent does believe that 

the said property (1) is stolen or embezzled, (2) is or was 

used as a means of committing a crime, (3) is in the 

possession of any person with the intent to use it as a means 

of committing a public offense or in the possession of 

another to whom he or she may have delivered it for the 

purpose of concealing it or preventing its being discovered, 

or (4) consists of any item or constitutes any evidence that 

tends to show a crime has been committed. 

In the view of Alameda County assistant D.A. Larry Blazer, 

in many investigations requiring the inspection of a site 

suspected of involvement in environmental violations, a 

search warrant will not be necessary. Prosecutors and 

investigators must weigh the potential effects of proceeding 

without a search warrant on the SUbsequent evidentiary 

needs of the case and the legal arguments that may be raised 

by defense counsel. 

Warrantless searches and seizures can generally occur 

through statutorily authorized inspections, consensual 

searches, and lawful observations. However, warrantless 

searches must still pass constitutional muster!4 Statutorily 

authorized searches such as routine fire cod(~, sanitation 

department, and building code inspections may disclose the 

illegal storage of hazardous waste or hazardous substances 

and other environmental violations. In California, for instance, in order to enforce the transportation provisions of 

the State's hazardous waste control laws, members of the 

California Highway Patrol have broad statutory powers 

authorizing officers to stop and inspect vehicles on State 

highways. Moreover, under section 25180 ofthe California 

Health and Safety Code, the CHP can stop and inspect any 

vehicle reasonably suspected of transporting hazardous 

wastes as defined in the code. 

Obtaining voluntary written consent to searches is another 

important option that both regulatory and law enforcement 

personnel may employ to gain wamlOtless access to a 

suspect's premises. According to Deputy D.A. Blazer, in 

some circumstances, consent inspections or searches may 

be the only option available to obtain evidence. Blazer adds 

that this is especially true where there exists no statutory 

provisions authorizing a warrantless inspection or where 

there Is insufficient probable cause to obtain a search 

warrant. In the case of a consensual search, the government 

has the burden of proving that the consent was freely and 

voluntarily given. In the experience of investigators interv,iewed for this report, it is commonly possible to obtain a 

suspect's consent. Many times an owner believes that he or 

she has nothing to hide or grants investigators access out of 

concern that denying permission will create antagonism or 

raise an investigator's suspicions. 
Absent statutory authority or consent for a search, lawful 

observation of the premises remuins a possibility. The 

location of the observing party or the item seized may help 

determine the legality of the search and/or seizure. The 

courts inquire as to whether there is a reasonable expectation of privacy under the Fourth Amendment in the location 

searched and the item seized. For example, no reasonable 

expectation of privacy exists in areas or items that are 

visible to the public. In some States this rule has been 

extended such that trespassing upon the property ofanother 

in order to examine or collect evidence will not invalidate 

a search where the object of the search was in plain view 

from outside the premises. Other circumstances that arc 

upheld as valid searches include the discovery of evidence 

under "exigent circumstances" such as emergency situations involving a potential of public endangerment, the 

destruction of evidence, or the flight of a suspect. 

In some jurisdictions, in the past, regUlatory agencies 

routinely conducted warrantless searches ofthe prem ises of 

firms suspected of environmc:ntnl offenses. In California, a 

State court's ruling in Los Angeles Chemir'al v. Superior 

Court, 226 Cal. App. 3d. 703 (December 1990), put an end 

to this practice, holding searches by investigators ofthe Los 

Angeles County Department of Health Services unconstitutional under the U.S. Constitution's Fourth Amendment 

prohibition against unreasonable search and seizure. As a 

result of the ruling, health officers must now obtain either 

a party's consent or a search warrant before conducting a 

search, in effect removing an advantnge previously held by 

health and other regulatory agencies over law enforcement. 

This ruling will probably serve to confirm the conclusion 

that the execution of a search warrant is, in most instances, 

the safest and surest method of obtaining needed evidence 

in environmental criminal investigations. 

Establishing the Presence of Hazardous Waste 

The quality of laboratory analysis and its presentation in 

court can make or break a hazardous waste prosecution. At 

trial, to prove a material clement of the crime charged, a 

prosecutor must establish that a substance was hazardous 

waste or some otherimproperly disposed of pollutant. Even 

the best testing technology and procedures must be supported by expert witnesses who can testify that the results 

have scientific validity "beyond a reasonable doubt."IS 

In one Monmouth County, New Jersey, case, thelaborutory 

was able to detect 390ftheEPA's top 100 priority pollutants 

in a truckload of shredded "construction and demolition 

debr.is." This evidence was critical to the success of this 

prosecution, in which the government alleged that defendants had deliberately mixed hazardous waste with shredded construction debris in order to facilitate its illegal 

disposal. In another case that grew out of a Monmouth 

County investigation of a sche me to mixwasteoil with toxic 

chemicals, lab results from five sites revealed high concentrations of cadmium, lead, asbestos, PCBs, mercury, and 

benzoate-pyrene. Benzoate-pyrene is the single most dangerous toxic chemical rated by the EPA. Both cases illustrate the central role lab analysis plays in hazardous waste 

prosecutions. 

State of Mind Required 

In order to prove a defendant's guilt "beyond a reasonable 

doubt," a prosecutor must be able to demonstrate every 

clement of the criminal offense charged. In People 0/ the 

State o/Colorado v. Colorado Chemical Specialties. Inc., 

Ralph Mika. and Ronald Drake, 88 CR 181 (District Ct. 

Golden), the key to the prosecution's case was establishing 

that indicted company officials "knew" thaI their company 

was engaging in the illegal disposal of hazardous waste. The 

D.A. 's crimimtl investigation had turned up evidence of a 

long-simmering dispute between Colorado Chemical and 

the neighboring Coors Brewing Company. Coors alleged 

that Colorado Chemical's dumping practices were not only 

causing pollution but also tarnishing Coors' reputation for 

environmental consciousness. Several years prior to the 

initiation of crim inal prosecution, Coors had hired its own 

investigators to evaluate the damage caused by Colorado 

Chemical's improper dumping activity. The Coors investigation produced a lengthy report demonstrating Colorado 

Chemical'S responsibility for the local pollution. Coors had 

presented the report to Colorado Chemical'S president and 

vice president. At the trial the D.A. offcred evidence that 

company officials had knowledge of this report but continued to operate the plant em ploying the same waste disposal 

methods as before. Upon objection to the report as evidence, the prosecution argucd that it was being offered to 

show what Colorado Chemical officials "knew" rather than 

to show that pollution was occurring. Immediately following the judge's ruling that the report could be admitted, the 

defendants pleaded gUilty. 

Proving "knowledge" in Colorado involves demonstrating 

that the defendant's conduct was voluntary and practically 

certain to cause the result that in fact occurred. Prior to the 

prosecution's "offer of proof," the defense in Colorado 

Chemical hncl maintained th~\l the damage to the environment was accidentul and that the indicted officials had no 

knowledge of the illegal dumping pntctices. The prosecuDeveloping and Trying Cases 53 

1 
tion had bolstered its case with demonstrative evidence as 

well, producing photographs of company offidals on the 

scene of environmental damage to rebut their assertions that 

they had never gone to the site. 

The indictments for murder in People v, Film Recovery 

Systems, Inc., 84 C. 5064, 84 C. 11091 (Cook Cnty. Cir. 

1985), required the prosecution to demonstrate that the 

defendant knew his actions created a strong probability of 

death or great bodily harm to the victim or someone else,16 

According to Jay Magnuson, the assistant State's attorney 

on the case, the appellate court's reversal of the murder 

conviction was ua first-time application of a doctrine which 

is inconsistent with every other appellate court decision." 

The appellate court found that a "knowing" mental state is 

inconsistent with a "reckless" mentalstate, but as Magnuson 

points out, the two cannot negate one another because a 

"reckless" mental state is defined as a conscious disregard 

of known facts. 

TheMonmouth County D.A. has identified proving "knowledge" as its major problem in environmental prosecutions. 

In State of N ew Jersey v. Capp Recycling, Frank Cappola, 

Anthony Cappola, et al., Indict. #90-12-1882-Tj Super. Ct. 

App. Div. #A-3669-91 T1P (Decided Nov. 9, 1992), defendants approached the owners of a gully behind a residential 

property with an offer of a quantity of clean "fill." Upon 

agreement to locate the fill in the gully, permits were 

obtained and dumping in the gully began. Shortly thereafter, a tip to the D.A. identified the material being dumped 

as "screened" construction and demolition debris (C & D). 

1be town engineer had approved the dumping but claimed 

that the approval was not for the type of material dumped. 

The operator claimed to have submitted the uclean fill" for 

chemical analysis, but no one could identify the material 

that had been given to the lab for analysis. What followed 

was a string of denials from everyone along the chain, from 

the generator to the owner of the disposal site, that the 

material was anything other than clean fill. In this case the 

prosecutor was able to demonstrate "knowledge" drcumstantially, but prosecutors claim it is often extremely difficult to demonstrate that a particular defendant had knowledge of illegal acts. As environmental criminais become 

more practiced in their "art," the complexities of proving 

uknowledge" can only be expected to increase. 

As a result of their experience in prosecuting environm ental 

defendants for hazardous waste crime, attorneys of the 

Environmental Enforcement Section of the Ohio attorney 

general's office realized that a potential defense for environmental defendants was to claim a lack of knowledge of 

the hazardous waste regUlatory system. Early on, the attor54 local Prosecution of EnvIronmental CrIme 

ney general's office recognized that the uknowing" culpable mental state in Ohio Revised Code § 3734.99 served 

as a "back door" for handlers of hazardous waste seeking to 

avoid becoming familiar with legal requirements. Aware 

that claims of unfamiliarity with the regulations would 

make proof of knowledge more difficult, in 1984 the Ohio 

attorney general asked the Ohio general assembly to reduce 

the culpable mental state for hazardous waste crimes from 

uknowing" to ureckless." 'The assembly agreed and enacted 

Amended House Bill 651. The "reckless" mental state in 

Revised Code § 3734.99 provides Ohio's environmental 

prosecutors with an important strategic advantage over 

jurisdictions that employ a "knowing" mental state for 

environmentalcrimes.17 Similar changes have been madein 

Califomia and other States. California's Hazardous Waste 

Control Act, as originally enacted, provided only for misdemeanor penalties and only when the defendant was 

shown to have committed the violation knowingly. In 1984, 

the statute was amended to include felony-level penalties, 

and the knowledge requirement for conviction wa'.l changed 

to proof that the defendant "knew or should have known" 

the violation was taking pl~ce. 

The view that the "knowing" standard is a poor one with 

which to achieve effective environmental enforcement, 

however, is not universally held. Ty Cobb, a criminal 

defense attorney, argues that environmental laws, as "public welfare statutes," contain significantly less rigorous 

scienter requirements than other legislation. In Cobb's 

view "willful blindness" and "collective knowledge" are 

potent devices, which enable prosecutors to avoid the 

problems of proving actual know ledge in the prosecution of 

corporations and their em ployees. l8 Cobb identifies the 

"willful blindness" standard as a concept under which the 

criminal element requirement of mens rea ("guilty knOWledge") may be satisfied by demonstrating that the defendant 

deliberately closed his or her eyes to what would have been 

otherwise obvious or available. "Collective knowledge" is 

defined as a doctrine under which "the requisite knowledge 

necessary to support a corporate conviction need not be 

imputed to the corporation from a single individual but may 

be established by im puting to the corporation the aggregate 

or collective knowledge of the employees or agents as a 

group."19 An examination of Cobb's objections to a relaxation of statutory knowledge requirements may help legislators and D.A.s better identify what works and what does 

not. 

Corporate Responsibility 

Corporate criminal liability for environmental offenses 

may be established by resort to either a "vicarious liability" 
or respolldeat superior theory. Under these doctrines, if a 

mere agent or employee ofthe corporation, acting with the 

requisite intent, commits an illegal act within the scope of 

his/her employment and with intent to benefit the corporation, the corporation may be held eithercrim inally or civilly 

liable for the act. Corporate criminal liability may also be 

established under the Model Penal Code method, adopted 

in 21 states. This approach is less inclusive than the more 

traditional respondeat superior doctrine.20 InPeoplev. Film 

Recovery Systems, IlIc., 84 C. 5064, 84 C. 11091 (Cook 

Cnty. Cir. 1985), the Cook County prosecutor relied on 

offenses that had historically been considered "individual" 

in nature to prosecute corporations and corporate officials. 

Undet' article 2 of the Illinois criminal code a "person" is 

defined as an individual, public or private corporatioll, 

government, partnership, or unincorporated association. 

Most other States and the Model Penal Code have adopted 

essentially the same definition.21 Illinois prosecutors also 

found support for their action against a corporation in article 

5 ofthe Illinois criminal code. In relevant part, § 5-4 states 

that criminal liability may be imposed upon a corporation 

in any of the following circumstances: (1) the offense is a 

misd~meanor, (2) there is a legislative intent that the 

offense apply to corporations, and (3) the offense is approved by the board of directors or a high managerial agent. 

Here, too, the Model Penal Code and several states have 

enacted similar provisions.22 

The way the law has developed, it is not enough that 

defendants engage in conduct of a generally dangerous 

nature. The emerging trend indicates a requirement of 

specific foreseeability or a showing that the defendant was 

able to foresee that his/her conduct might result in death or 

great bodily harm.'Z3 In the case of murder, the fact finder 

must scrutinize the prosecution's case to determine whether 

the ordinary prudent orreasonable person would foresee the 

strong probability of death or harm. Absent ability to 

foresee, the State can establish neither the mental state of 

recklessness nor knowledge against a defendant?' 

As the number of corporate environmental criminal prosecutionsincreases, D.A.s will find it increasingly necessary 

to "pierce the corporate veil" to reach the legally accountable parties behind a corporate entity. Piercing the corporate veil permits prosecutors to keep pace with sophisticated environmental offenders who are increasingly relying 

on incorporation, partnership, and other limited liability 

business entities to insulate themselves from criminal indictment. The willingness ofcoUl'ts to "pierce the corporate 

veilt" allowing the prosecution to reach the wrongdoer 

behind the dummy corporation, is the triumph of substance 

over form. It places the realities of corporate conduct, which 

may be criminal, over the corporate structure's purpose of 

expediting business conduct.2S Effective defenses to corporate criminal liability include due diligence and asserting 

Federal preemption of State law. Essentially, the affirmative defense of due diligence serves to negate the required 

mental state or mens rea that a high managerial agent must 

have in order for the corporation to commit a crirne.26 The 

defense of Federal preemption of State law relies on the 

supremacy of Federal law over all other legislation. Where 

Congress has expressed an intent that the Federal government exclusively occupy a legislative niche, States may not 

create laws that govern in that field. 

Endnotes 

1. u.s. Environmental Protection Agency, The Public's 

Role illElIvironmemalEnforcemelll (Washington, D.C.: 

U.S. Environmental Protection Agency, March 1990), 

p.1. 

2. Hammitt and Reuter, Measuring and Deterring, p. 25. 

3. The Northeast Hazardous Waste Project has since 

changed its name to the Northeast Environmental Enforcement Project. 

4. Rebovich, Understandillg Hazardous Waste Crime, 

p.3. 

5. Hammitt and Reuter, Measurillg and Deterrillg, p. 25. 

6. Ibid., p. 26. 

7. Mielke, "Remarks of Donald E. Mielke," p. 3. 

8. Yelverton, "Expanding the Role of District Attorneys," 

p.2. 

9. Rebovich, Ullderstanding Hazardous Waste Crime, 

p.53. 

10. U.S. Environmental Protection Agency, Enforcement 

Four·Year Strategic Plan, p. 58 

1 L Fora discussion ofasimllarcasein New York State,see 

Abrams, "Safeguarding the Workplace," pp. 19-23. 

12. H. Henderson, "Murder in the Air," Reader (June 15, 

1990): 20. 

13. Ibid., p. 18. 

14. On warrantless searches for pervasively regulated activities, see New York v. Burger, 482 U.S. 691 (1987) 

Developing and Trying Cases 55 
(chop shop); Commonwealth v. Blosneski Disposal 

Service, 566 A. 2d 845 (Pa. 1989) (waste transfer 

station). 

15. Mielke, "Remarks of Donald E. Mielke," p. 4. 

16. Illinois Annotated Statutes, ch. 38, para. 9-1. 

17. Celebrezze eta!., "CriminalEnforcement," pp. 227-28. 

18. T. Cobb, "Criminal Enforcement of Environmental 

Statutes: Strict Criminal Liability for Reporting Violations?" unpublished treatise, pp. 36-37. 

19. Ibid., p. 39. 

56 Local Prosecution or Environmental Crime 

20. Celebrezze et al., "Criminal Enforcement," p. 240. 

21. Magnuson and Leviton, "Policy Considerations," 

p.916. 

22. Ibid., p. 917. 

23. Ibid., p. 920. 

24. See Illinois Annotated Statutes, ch. 38, paras. 9-1(a), 

9-3. 

25. Magnuson and Leviton, "Policy Considerations," 

p.925. 

26. Ibid. 
• 

Chapter 9 

Training Needs and Opportunities 

Training for Prosecutors 

Although much of the information prosecutors need to 

achieve success in environmental cases can be learned on 

the job, formal training sessions can be useful as well. The 

Regional Environmental Enforcement Associations, the 

Environmental Prosecution Center of the National District 

Attorneys Association, the Environmental Law Institute, 

and other organizations offer extensive training progrnms 

for prosecutors and investigators. During 1991-1992, the 

Regional Associations trained 288 local attorneys and 374 

State attorneys in environmental prosecution. The Western 

States Hazardous Waste Project presents an environm ental 

crimes prosecution training course that includes coverage 

of the following topics; the structure of environmental law: 

gathering and maintaining evidencej search and seizure 

issues (Fourth and Fifth Amendments); what to charge -

the availability of traditional criminal statutes in environmental prosecution; prefiling case evaluation; parallel proceedings; whom and when to charge; approaches to sentences and remedies: environmental science fm' prosecutors: developing an environmental crimes program; and 

trial tactics. 111e EPA has established a National Enforcement Training In~tltute, which will offer training to Federal, 

State, and local prosecutors and government attorneys 

handling civil cases, as well as criminal investigators and 

c!viUnspcctors.1 Contact information for all the mentioned 

organiz<'ltions may be found in Appendix B. 

Continuing Legal Education (CLE) environmental law 

sessions may also be good training in environmental law for 

prosecutors. Particularly good arc the one-day American 

Bar Association (ABA) Naturnl Resources and Environmental Law Section workshops focused on particular stat· 

utes and the annual American L'lw Institute- (ALI.) ABA 

five.day workshop on Environmental Litigation.aStute and 

local bar association environm entnllaw sections also offer 

useful educational opportunities. 

Several of the local prosecution programs visited for this 

study have developed their own training programs. 'The 

Alameda County district attorney's office has been training 

attorneys in environmental prosecution since 1983. The 

office works closely with the California District Attorneys' 

Association (CDAA) on enhancing prosecutor and investi· 

gatory personnel training in this "new" criminal area. 

CDAA, which has created an "environmental liaison" posi· 

tion for coordinating training efforts, offers two introductory courses as well as one advanced course each year, The 

format of CDAA's introductory course on environmental 

prosecutions for prosecutors and regulatory and investiga· 

tive personnel touches on the key titles in crim ina 1 environmental enforcement. Seminar workshop titles include "Ma· 

jor Laws for Environmental Enforcementll, "Penalties/ 

Remedies/Sentencing," "Investigation," "Evidence," 

"Trial," "Civil Litigation of Environmental Cases," and 

one entitled "You Don't Have to Be a Chemist to Prove 

Environmental Violations," The advanced course's focus is 

on current issues, motions, charging and settling environmental cases, defense tactics, ethics, and current legislation 

and policy. 

Donald Mielke, chalrofthe NDAAenvironmental committee, believes that 100 additional environmental prosecutors 

should be trained in the U.S. each year. The close proxim ily 

of Mielke' s Golden, Colorado, office to the EPA laboratory 

has dramaticnlly enhanced the exposure of Jefferson and 

Gilpin Counties' prosecutors to effective enforcem ent techniques and technical training. This important asset, how· 

ever, is not as accessible to prosecutors who work for D.A.s 

located farther away from the EPA lab. The Jefferson and 

Gilpin Counties' ~Issistant prosecutors huve also benefited 

from ~Ittending the EPA-sponsored course on hazardous 

waste investigation given at the Federal Law Enforcement 

Trulning Center. In addition to training personnel In their 

own field in the hazardOUS waste urea, the two· week course 

cross-trains the regulatory and investigatory staff who 

attend so that they have n better understanding of each 

other's roles nnd responsibilities. 

Training Needs and Opportunilles 57 
Both Monmouth and Cook County prosecutors interviewed 

for this study reported the need for environmental science 

training that would give unit attorneys expertise in chemistry. While Cook County prosecutors felt that their training 

and preparation for environmental prosecutions was otherwise adequate, Monmouth interviewees thought it would be 

helpful to have better knowledge of how to protect oneself 

from the risks related to contact with certain metals and 

hazardous Chemicals. The State's environmental prosecutor, Steven Madonna, conducts one-week environmental 

"awareness scmjnars" followed up by on-the-jOb training. 

The seminars, which emphasize practical skills, teach 

search and seizure, environmental legislution, the use of 

demonstrative evidence, safety, and the procedural differences between the administrative and the criminal search 

warrant. A package of materials on environmental prosecution developed by the Monmouth County prosecutor's 

office is another useful resource. for prosecutot's, regulatory 

personnel, and investigators. The packet was put together to 

help other counties replicate the successful experience of 

Monmouth's environmental prosecution unit. To date, a 

number of New Jersey counties have expressed interest in 

the resource. 

As a review of the state of training for investigative and 

regUlatory personnel makes clear, effective training courses 

and materials on environmental prosecution already exist. 

More than anything, it is the slow pace of dissemination 

among investigators and regulators that has delayed greater 

use of what is already known. As w lth other issues in 

criminal enforcement, the lackofadequatefunding is partly 

to blame. In the case of low-cost training and resources, all 

that may be required is a prosecutor's commitment to 

pursuing criminalenvironmentaloffenders. Information on 

training resources is included in Appendix B. 

Training for Investigators/Regulators 

The Regional Environmental Enforcement Associations 

also offer training for investigators. During 1991-92, the 

associations provided training to 134 local investigutors 

and 207 Stale investigators. 

California appears to be the State with the greatest nu'mber 

and diversity oftraining opportunities for investigutors and 

regUlators. In addition to the California District Attorneys' 

Association's Awareness Training for Locul Low Enforcement and the University of California 's week-long practice 

workshop for law enforcement and investigators, the CuHfornia Specialized Training Institute (CSTl) in San Luis 

Obispo conducts a course on hazardous matedals investiga58 Local Prosecution or Environmental Crime 

tion. In Alameda County, training and informationdissemination occurs at the monthly meetings of the countywide 

environmental enforcement network, and the D.A.'s office 

sponsors a training seminar for police, fire and health 

officers. The one-day program includes an overview of the 

local government's role in environmental enforcement and 

examples and a description of environmental crimes to help 

the law enforcement officer identify and distinguish between these offenses. Moreover, the seminar provides 

technical information on substances frequently encountered (including definitions of hazardous waste and hazardous substances), investigative and interview teChniques, 

sampling strategies, evidence preservation and chain of 

custody procedures, scene safety, criminal investigation 

procedures, and issues to be considered in the charging 

decision. The interplay between public safely and evidence 

collection is explored, as is the importance of cooperation 

among the various environmental response agencies involved. Alameda interviewees reported that additional 

training is needed on site-safety and environmentalscience 

issues. Refresher sessions at which investigators and regulatory personnel can be brought up-lo-date on the latest 

environmental offender strategies was also recommended. 

Although originally created to enhance law enforcement 

involvement in environmental prosecution, the MEEA 

truining film is another excellent resource for investigators 

and regulatory personnel. 

The Cook County State's attorney's office, like the Alameda 

and Los Angeles County D.A.s' offices, is very involved in 

local law enforcement and investigatory and regulatory 

staff training. In Cook County, attorneys from the environmental unit have made presentations to Metropolitun Water 

Reclamation District of Greater Chicago (MWRDGC) and 

Illinois Environmental Protection Agency (IEPA) staff as 

well as to a number oflocal police departments. 111ese talks 

focus primarily on what 10 look for and whom to call when 

something suspicious is observed. Discouragingly, despite 

these efforts, the need for expanded and enhanced training 

for investigative and regUlatory personnel is readily apparent in Cook County and elsewhere. Interviewees in Cook 

County related one case in which a local pollce officer 

observed u tank truck in the mlddleofa field pumpingllquid 

into an old, rusted tank. Instend of investigating further, the 

officer left the scene without even recording the truck's 

license number. Without training in environmental enforcement, many police officers feel that environmental 

offenses are equivalent in severity to truffic vloluLions. 

I-laving recognized the importonce of giving greater priority to environmentolcrime, the Cook Cljunty prosecutor has 

l 
employed novel methods of funding training. 'The settlement in one of the environmental unit's civil cases required 

the defendant corporation to pay for a training seminar for 

law enforcement officers. The settlement demonstrates the 

role of il'lidgination and creativity in environmental enforcement strategy. 

New Jersey environmental prosecutor Steven Madonna has 

demonstrated a strong commitment to the training of law 

enforcement, regulatory, and investigatory personnel. In 

addition to those provided for p(osecutors, Madonna's 

office provides a series of environmental "awareness seminars" for law enforcement officers and investigatory personnel, which have the added effect of helping to build a 

grass-roots case-referral network across the State. Ma· 

donna is working to get a unit on environmental crime 

added to the State's standard police academy curriculum 

and to regular in-service training for law enforcement 

officers in New Jersey. 

Nonetheless, Monmouth County prosecutors interviewed 

identified a need for more and enhanced environmental 

education for local police agencies in their county. 

Interviewees also reported a need for training in site-safety 

procedures. In one Monmouth County case, a pollee officer 

used a Styrofoam cup to scoop up some liquid from a site. 

When the cup began to disintegrate in his hand the undaunted officer sniffed the substance, blacked out, and had 

to be hospitalized for several hours. The Northeast Hazardeus Waste Project is doing its part by offering its own 

courses on environmental awareness in the hazardous waste 

area. Even with the training efforts of NEHWP and a 

number of other organizations, however, the present level 

of training reportedly falls short of the need. With many 

counties moving to form their own environmental prosecution units and with the hazardous waste disposal teChniques 

of environmental criminals becoming Increasingly sophisticated, this situation can be expected to become more 

pronounced. According to prosecutors in Monmouth County, 

there is a need for Federal and State courses at least four 

times a year. Monmouth County prosecutors expressed the 

view that the merging of the EPAIFLETC course with the 

EP Ns course on personal protective gear would create an 

ideal tralntng program for investigative and regulatory 

enforcement personnel. New Jersey now offers a one-week 

course at the State level with instructors from the Department ofEnvironmentalProtection, the Division 0 fCrim inal 

Justice, and the State Police. In the view of interviewees at 

the Monmouth County prosecutor's office, training shOUld 

impress upon investigators hoW a State's criminal statutes 

apply to anci shape the investigation. 

Cross-Training of Criminal 

Investigators and Regulatory Staff 

The concept of cross-training involves the training of 

personnel from one diSCipline in the skills of another. In the 

case of regUlators, for example, cross-training means providing regulatory personnel with basic instruction in crim inal investigation: interviewing, evidence collection, and 

other rudimentary investigative techniques. Likewise, law 

enforcement officers working on regulatory matters benefit 

from exposure to the rudiments of environmental science, 

as well as more specific concepts in regUlatory enforcement. The Jefferson and Gilpin Counties I D .A. 's office sees 

a great need for technical training for law enforcement 

officers and firefighters so that when they enter a site, they 

know how to protect themselves from hazardous substances. Admittedly, even in this "activist" D.A.'s office, 

prosecutors have a lot to learn. One ofthe office's attorneys 

found that his footwear disintegrated after he walked through 

toxic materials on the site of the Colorado Chemicul Plant. 

Cross-training does not mean that regulutors and investigators will become fungible cogs available for use interchangeably in whatever position may be called for. In 

building an investigative unit, for example, the consensus 

among prosecutors is that training experienced criminal 

investigators in technical environmental matters is more 

effective than training environmental regUlators in criminal 

investigation. In the view of Donald Mielke and many 

others, it is simply ensier to train a police detective in the 

scientific and technical nuances of pollution-related investigations than it is to train a regulator to do criminal 

investigations.J 

The EP NFLETC course, discussed briefly above, is probably the best exampleof cross-training in the environmental 

enforcement area, Program participants hail the course, 

which is offered frce of charge, for both its content and its 

fostering of contacts and cooperation between law enforcement officers and regUlatory personnel who attend jointly. 

'The EP A/FLETC Hazardous Waste Investigations Training Program is designed for both crim inal investigators and 

regUlatory personnel. The course format provides for both 

simultaneous and separate training for criminal investigators and regUlatory stnff. Upon completion of the course, 

crim inal investigators possess concrete skills such as train· 

jng in standard teChniques in the investigation of environmental criminal offense, a working understnnding of factors that influence whether violations should be addressed 

civilly or criminally, an ability to identify the regulatory 

programs that apply to the various environmental media, 

Training Needs and Opportunities 59 
and an understanding of the criminal enforcement provi-

;,.oos associated with violations of environmental statutes 

and regulations. Conversely, regulatory staffwill be able to 

employ the practical skills they require in their work, 

including securing a crime scene, discriminating between 

items having evidentiary significance and those of lesser 

significance, proper sample collection, methods for preserving and transmitting specific items of physical evidence, and the legal requirements for adm itting evidence as 

they relate to the IIchain of custody," to name a few. 

(Information on the EP NFLETC Hazardous Waste Investigations Training Program is included in Appendix B.) The 

popl1larity of the course is evidenced by the one-year 

waiting list. 

Training for Judges 

Because of the technical issues raised by environmental 

cases,judges may benefit from specialized training in this 

area. As increasing numbers of civil and criminal cases 

regarding environmental matters are reaching the courts, 

some members of the judiciary have requested training 

sessions. A judges' training session on environmental is60 local Prosecullon of Envlronmenlol CrIme 

~ues was held in Massachusetts in April 1991, attracting 

judges from all over New England.4 As attendees at the 

Massachusetts conference pointed out, "hands-on" formats 

such as mock trials and exercis(;'.s based on real or hypothetical cases may be appealing to ~Ind effective for judicial 

aUdiences.$ 

Endnotes 

1. The Pollution Prosecution Act of 1990, enacted on 

November 16, 1990, as Public Law 593, specifically 

mandated the establishment of EPA's National Enforcement Training Institute. 

2. For contact information on the American Bar 

Association'S Environmental and Natural Resources 

Section and the ALI.ABA, see Appendix B. 

3. Mielke, "Remarks of Donald E. Mielke," p. 9. 

4. N. Pierce, "School for Judges: The Environment Demands It," NACO County News, June 10,1991, p. 8. 

5. Ibid. 

-1 
------------------------------------------------------______ ~nrrr ____________ .. ,'---

-

Chapter 10 

Statutory Issues 

Environmental Statutes 

State criminal environmental laws -;:over three primary 

areas: (1) hazardous waste, (2) water pollution, and (3) air 

pollution. Although, as noted earlier, many States' laws 

follow the Federal statutes, a comparative analysis of the 

criminal environmental laws of the fifty States by John 

DeCicco and Edward Bonanno found that "a lack of un if ormily exists in the states' hazardous and toxicwaste criminal 

provisions, both in terms of their scope and their available 

penalties."l Typically, criminal sanctions are imposed on 

the following persons: (1) individuals who dispose, treat, 

store, or transport hazardous waste without proper licensure; 

(2) indhiduals who give false information, make false 

statements, or render inaccurate monitoring devices pertaining to hazardous waste, water pollution, or airpollutioni 

(3) individuals who discharge water pollutants without a 

permit or who do not meet toxic or effluent standardsj and 

(4) individuals who discharge contaminants into the ai~ in 

excess of permit limitations or without a permit. Accordmg 

to DeCicco and Bonanno, "while the aforementioned criminal conduct virtually covers the spectrum of possible offenses, not all fifty states have laws prohibiting all these 

forms of conduct, and more importantly, those that do have 

them do not prosecute them in a similar m!ilnner.U2 The 

major discrepancies have to do with categories of criminal 

offense and seventy of sentences. Such diversity is an 

incentive for interjurisdictional displacement of criminal 

activities. 

Statutory inconsistencies hamper efforts to integrate and 

coordinate environmental enforcement on a national basis.3 

Under present circumstances, an individual who could be 

sentenced Lo many years in prison for illegal hazardous 

waste disposal in one State, could face only a brief period 

of incarceration in another. Moreover, it is likely that the 

States with the lightest penalties will also have the least 

aggressive criminal enforcement programs.4 DeCicco and 

Bonanno note that the result is not only that similarly 

situated violators arc being treated differently, but that there 

is a "potential for perpetuating pollution ofthe environment 

by virtue of the' displacement' of the. crime."S In this view, 

not until the Nation has adopted uniformly stringent criminal environmental legislation will the opportunity be severely constrained. 

In the future the Federal sentencing guidelines for environmental crimes may become a potent ref~rence when seeking significant sentences at the State or local level. These 

guidelines ass4re prison sentences for almost any conviction of an environmental crime. 

State criminal statutes in the area of water pollution reflcct 

a wide variety of approaches to the problem.6 Moreover, 

except for water pollution incidents involving a hazardous 

or toxic waste element (meaning a discharge of hazardous 

or toxic waste into water rather than land), "most states do 

not have or enforce comprehensive criminal programs in 

the area of water pollution.'" Among the States that have 

adopted criminal air pollution statutes, m~;ly of those laws 

closely follow the criminal provisions of § 1319(c) of the 

Clean Water Act prior to its amendment in 1987. Before it 

was amended, § 1319( c) provided for crim inal penalties for 

"willful" or "negligent" conduct by any person who violated certain provisions of the act. The penalty structure 

under these States' criminal statutes are similar to the 

penalties for only "negligent" conduct, under § 1319(c)(1) 

following the 1987 amendment.s Although several States 

have enacted legislation featuring penally provisions that 

exceed those for "negligent" conduct under the existing 

CWA, only Arizona and Hawaii have pcnal.y provisions 

comparable to those for "knowing" conduct under § 

1319(c)(2), as amended in 1987.9 

Most States have adopted criminal water pollution statutes 

that contain provisions proscribing false statements.10 While 

the Federal government now has stiffer penalties under the 

1987 amendments to the Clean Watcr Act, most State 

statutes do not impose strict enough penalti.es to deter future 

violations. 

Statutory Issues 61 
L 

Of all environmental areas, air pollution has the least 

striugent criminal sanctions. As with water pollution and 

ha~ardous waste, there is an absence of uniformity in State 

statutes. Most State criminal air pollution statutes contain 

less severe penalties than those in the Federal Clean Air Act. 

Following the EPA adminif:trator's establishing of National 

Ambient Air Quality Standnrds, as provided for in eM, the 

States are responsible for developing plans for implementing, maintaining, and enforcing standards within each ail'-

quality region, or portion thereof, in thejr State.ll Unlike 

similar reqUirements under RCRA and CWA, however, 

CM does not require the States to enact minim urn criminal 

provisions to receive EPA approval for their air-quality 

State implementation plans (SIP). 

WhileseveralStates' statutes do track CAA, im posing fines 

of up to $25,000 or imprisonment up to a year or both,l2 a 

number of States provide for lesser fines or prison sentences 

than those provided in eM. A number of States' statutes, 

for example, do not include jail sentences,lJ while another 

thirteen States do not have any criminal penalties for air 

pollution.14 

The National Association of Attorneys General has prepared an excellent compilation of environmental criminal 

laws in all 50 States. The document is entitled Summaries 

ofPederal and State Environmental Criminal Enforcement 

Statutes and may be obtained from the NationalAssociation 

of Attorneys General. (Further information on this dOl:ument appears in Appel1dix A). 

'lbe five jurisdictions studied for this document report 

statutory concerns representative of tbe national problems 

discussed above. Among the most important is the general 

belief that despite many States' upgrading of environmental offenses to felonies, the penalty structures in many of 

these statutes remain inadequate to serve as strong deterrents. An exception may be New Jersey, where the State 

hazardous waste law centains harsher penalties than the 

minimums required by RCRA. Moreover, unlike those in 

many States, New Jersey's penalties are graduated according to levels ofknowledge and intent. Forexam pIe, a person 

who acts upurposely" or uknowingly" in causing an illegal 

release or abandonment of hazardous waste or toxic substance is guilty of a second-degree felony and is SUbject to 

a fine of up to $100,000, five to ten years in prison, or both. 

Elsewhere, most prosecutors interviewed complain that 

criminal fines are too low and other penalties too weak to 

exert effective pressure on the detennined offender. The 

statutory scheme in many States seems to reflect the 

resistance of industry to environmental law reform. Laws 

62 Local Prosecution Of EnVironmental Crime 

already on the books have been enacted in a piecemeal 

fashion, which helps explain their troublesome inconsistencies. In the case of Colorado's Clmidnight dumping" law, for 

example, the definition of hazardous waste is very broad, 

while related State laws define the term much more narrowly. Similarly, some early en\' ,mnmental legislation 

cunfuses "hazardous waste" with "hazardous materials" 

and uses either or both of these terms incorrectly. 

According to Donald Mielke, the legislature in Colorado is 

int1uenced by business interests that oppose stricter environmentallegislation. At the same time, the legislature is 

subject to pressures for greater enforcement from Colorado 

citizens with a strong environmental consciousness and 

environmental groups that maintain a formidable presence 

in the State. The two sides regularly debate proposed 

environmental legislation, as in the- conflict over the proposed Polluters' Immunity Bill, which encourages selfauditing on th~ part of industry. The bill is backed by 

industry groups, who argue that businesses are responsible 

enough to look after themselves. Mear:while, environmental advocacy groups and law enforcement officials maintain 

that the bill's effect would be to place serious limits on 

environmental investigation of suspect violators. D.A. 

Mielke contends that only ifthe penalties forenvironmental 

offenses are increased to a point where they represent more 

than an acceptable cost of doing business will any real 

deterrent effect be achieved. 

At the local level, the drafting of county environmental 

ordinances by popularly elected officials may mean that 

scientifically sophisticated laws are being drafted by persons onlyvagucly fam iliar with thesubj~ct. The result is the 

drafting of insufficient or, in some instances, outright 

ineffective environmental legislation. In Cook County, for 

instance, the situation is such that the State's attorney's 

office has recommended overhauling the county's environmental ordinances. 

In many States, environmental offenses, including severe 

ones, may still be classified as misdemeanors or violations. 

The law has not kept pace with current knowledgeregarding 

the damage caused by environmental noncompliance, though 

in some cases the lag time in the drafting of effective 

environmental statutes may be overcome where the prosecution can prove the elements of an occupational safety 

and health offense ora "traditional" criminalstatute (that is, 

murder in People v. Film Recovery Systems, Inc. 84 C. 

5064,84 C.ll091 [Cook Cnty. Cir. 1985]). As mentioned 

above, inconsistencies in statutory language, such as the use 

of contradictory definitions of hazardous waste, may further hamper criminal enforcern.lOt. On the other hand, New 
Jersey is often cited as a State that has achieved considerable success in the codification of criminal environmental 

laws. 

Interviewees in the Jefferson and Gilpin Counties' D.A.'s 

office reported that there is a need for more consistency and 

uniformity in environmentallegislation. These prosecutors 

feel that the changes have to be made at the Federal level, 

though they also expressed frustration over the ineffectiveness of Federal legislation in the area of air pollution. 

Although most air pollution violations are currently handled 

under Federal law, the view was expr~ssed that the "air 

inversion" problems being experienced in Colorado warrant enactment of stronger State air pollution statutes. 

Prosecutors feel that the Federal authorities are out oftouch 

with this "local" issue. 

Although no State has yet been able to accomplish this, 

Monmouth County prosecutors stressed the potential benefits of having all of a State's environmental laws codified 

as an environmentalchapterofthecode. Presently, environmental legislation is scattered throughout the New Jersey 

statutes, complicating the task of the local prosecutor and 

law enforcement officials. As a result, enforcement personnel may find themselves spending precious time searching 

for the correct statute under which to charge a suspected 

offender rather than on investigation, apprehension, and 

obtaining injunctions against further noncompliance pending trial. 

To ac;sist county prosecutors in New Jersey, the office of 

State Environmental Prosecutor Steven Madonna has created an Environmental Crimes Index. The index is designed 

to assist county prosecutors with the prosecution of environmental cases by makil'\g it easier for them to identify the 

proper statutes under which to charge offenses. 

As for specific legislation they hope to see in the upcoming 

years, Monmouth County prosecutors favor enactment of a 

law prohibiting disposal of shredded construction and 

demolition ("C & D") debris. Monmouth is experiencing an 

increasing problem with illegal disposal of C & D debris 

trucked in from New York City. It is often impossible to 

detect the actual composition of such debris without complex sample analysis, but unscrupulous companies have 

been known to dispose of hazardous sUbstances by commingling them with shredded C & D debris. State laws should 

keep pace with the growing sophistication of environmental 

offenders. Likewise, greater coordination of regional enforcement through the use of multistate compacts must 

occur, so that offenders are not free to turn to neighboring 

States when new laws in their home State make it too risky 

to continue their illegal practices. New York State has 

enacted a law prohibiting disposal of shredded debris, but 

no similar law has been passed in New Jersey. Absent 

effective and regionally uniform statutes addressing this 

problem, Monmouth County can expect it will continue to 

be a favorite illegal C & D dumping ground for debris from 

New York. 

Ultimately, States might look to the adoption of a uniform 

environmental code. (See Appendix C for model environmental criminal statutes drafted by the National Association of Attorneys General.) Until then, however, there is a 

great deal States can do on their own. A State's enactment 

of strong criminal environmental statutes may prompt 

D.A.s to engage in more aggressive prosecution of pOlluters. In passing strict and consistent criminal statutes, legislatures will be giving prosecutors tools they need in the fight 

against environmental crime. 

Use of Other Statutes 

Forfeiture 

The increasing use of forfeiture and its demonstrated effectiveness in "h"aditional" criminal enforcement has encouraged prosecutors to test its worth in fighting environmental 

crime. In the criminal enforcement of the environ~ental 

statutes, forfeiture actions can be used to raise the stakes for 

criminal polluters. For example, as Donald Mielke has 

noted, the trucks used in the illegal transportation of 

hazardous substances can be seized by law enforcement 

pending prosecution of defendants. IS Forfeitures are most 

effective when they are employed in coordination with 

other available criminalsanctions. D.A. Mielke reports that 

in Colorado prosecutors have found that the economic loss 

~o environmental offenders resulting from a forfeiture is 

often greater than the total dollar amount of fines imposed. 

A civil case involving the illegal disposal of pesticides, 

brought by the Jefferson and Gilpin Counties' D.A. 's office, 

illustrates this view. In this case, an eyewitness observed an 

individual dumping pesticides into a local creek, but law 

enforcement was unable to book: the suspect on anything 

other than a misdemeanor. Relying on videotaped evidence, the prosecutor charged the defendant with spraying 

pesticide without a license. The tape revealed that the 

defendant had stored the pesticide in the truck, justifying 

seizure under the Colorado forfeiture statute of an instrumentality used in the commission ofa crime. Upon conviction, the trial judge ruled that the prosecution was entitled 

to the truck. In addition, the defendant was fined S10,OOOfor 

statutory Issues 63 
the misdemeanor. Because Colorado had not classified the 

pesticide involved as hazardous waste, only a misdemeanor 

charge could be leveled against the defendant. 

In Monmouth County, the prosecutor's office makes extensive use of New Jersey's forfeiture statute. Any equipment 

actually used or intended for use in the furtherance of or 

commission of a crime can be forfeited. The items seized 

may include trucks, heavy equipment, and other costly 

items. Monmouth interviewees reported that the seizure for 

forfeiture of expensive pieces t'f equipment ,e gets the most 

attention" and may have the greatest deterrent value. Forfeiture can also help the office cover the cost of environmental prosecution. Indeed, during the first half of 1990, 

proceeds from the sale of forfeited items accounted for a 

$200,000 contribution to the environmental unit's operating bUdget. The successful use of forfeiture in both the 

Colorado and New Jersey jurisdictions studied demonstrates the important role this high-deterrence weapon can 

play in a prosecutor's environmental enforcement plan. 

Monies recovered through settlements may be used to 

bolster the environmental prosecutorial response, as in the 

case ofthe Western States Project, which in 1990 received 

settlement monies from the Solano County (California) 

district attorney's office. These funds were used to underwrite the cost of an environmental prosecutor's course. 

Since that time other settlements have directed funds 

toward prosecution training. In New Jersey, a major settlement with Exxon funded a nine-member Harbor and Rivet'S 

Task Force to undertake clean water enforcement. The 

funding was provided through a revolving Clean Water 

Enrorcement Trust (CWET). State prosecutors arc attempting to obtain additional resources for the CWET from 

settlement of other environmental cases. These examples 

further demonstrate the role of imagination and creativity 

in environmental enforcement strategy. 

Traditional Criminal Statutes 

In Illinois, most environmental laws deal with the management of hazardous waste. Under these statutes criminal 

sanctions arc im posed only for hazardous waste violations. 

In addition, the State's attorney prosecutes defendants 

under chapter 38 of the Illinois statutes, which perm.its the 

bringing of murder and manslaughter charges against corporate defendants. These prosecutions can have the greatest 

deterrent effect on environmental crime, though prosecutors often face a judiciary reluctant to try corporate defendants, except in the most egregious of cases, Cook County 

has also used the "traditional" criminal charge of reckless 

64 Local Prosecution of EnVironmental Crime 

-

endangerment to prosecute environmental violators where 

it can beshown that their acts constitute a reckless disregard 

for human health and safety. 

Other "traditional" criminal statutes and legal concepts 

employed by local prosecutors in the war on environmental 

crime include conspiracy, false documentation, theft by 

deception, and the corporate responsibility doctrine. 

Monmouth County prosecutors reported that they sometimes file conspiracy charges against environmental offenders. Likewise, the Monmouth D.A. 's office has used 

the corporate responsibility doctrine to reach a CEO whose 

direct participation in an environmental offense is difficult 

to prove. Possible fines have been increased under New 

Jersey law to $100,000 a day for every day a corporation is 

out of compliance, and it has been proposed that this amount 

be increased to $250,000. The Monmouth County prosecutor also uses false documentation charges against offenders 

when State environmental criminal statutes cannot be 

successfully applied to a defendant. Lastly, theft by deception statutes have been used by the Monmouth prosecutor 

in cases involving waste-hauling firms that charge generators for legal disposal of hazardous wastes, only to dump the 

waste illegally later. 

RICO Laws 

Prosecutors have yet to make much use of the Federal 

Racketeer Influenced and Corrupt Organizations Act 

(RICO), 18 U.S.C. §§ 1961 et seq., or similar State statutes 

against environm ental offenders. Because RICO's environmental potential remains untested, one can only speculate 

on its future importance to environmental prosecution. Just 

as prosecutors have increasingly come to rely on forfeiture 

in environmental prosecution, perhaps in the years to come 

D.A.s will turn t(lRICO as its effectiveness in othercriminal 

areas is established. 

Cost Recovery Statutes 

Interviewees in Cook County reportee that Illinois' cost 

recovery laws arc written adequately, but in terpretation and 

education arc required. 'The Monmouth County prosecutor 

routinely relies on New Jersey's cost recovery laws. The 

office has recognized that making payment ofclcanupcosts 

a condition of probation is one means for the prosecutor to 

supervise site remediation. In New Jersey, treble damages 

(punitive damages) arc available if the company does not 

cooperate in the cleanup schedule. However, firms may be 

able to avoid environmental cleanup costs and penalties if 

they go into bankruptcy. 
Consumer Protection, Unfair Competition 

The only jurisdiction studied for this report that hflS made 

considerable use of State consumer protection law is Alameda 

County. The Alameda D.A. has charged defendants with 

"unfair competition" where a repetitive pattern of conduct 

can be established. Similarly, under Califomia proposition 

65, a private cause of action is available to the Environmental Defense Fund and environmental groups. The law 

created penalties for exposing the public to carcinogens 

without a warning and/or introducing carcinogens into the 

groundwater. Use of the penalties available under proposition 65 requires that the case be first offered to the D.A. or 

the A.G. Only ifthe D.A. or A.G. declines to prosecute can 

a civil action be commenced. Under the law theD.A. has 60 

days within which to investigate such cases. Interviewees 

believe that a decision to decline prosecution creates the 

perception that the office is inefficient oruninterested in the 

case. Consequently, there is a good deal of office resentment of this law. The Alameda D.A. has given its backing 

to legislation that would allow courts to put corporations on 

probation. Unlike New Jersey, where corporate entities 

may be "debarred" for their unlawful acts from contracts 

and certain other business activities, California does not 

employ debarment. 

Endnotes 

1. DeCicco and Bonanno, "A Comparative AnalysiS," p. 

21. 

2. Ibid., p. 8. 

3. Ibid" p, 4. 

4. Ibid., p. 5. 

5. Ibid. 

6. Ibid., p. 26. 

7. Ibid., p. 21. 

8. Ibid., p. 26. 

9. Ariz. Rev. Stat. Ann. § 49-263(A),(C) (1988); Haw. 

Rev. Stat. § 342-101 (Supp. 1988). 

10. Sec DeCicco and Bonanno, uAComparativeAnalysis," 

p.27. 

11.1970 Clean Air Act § 110,42 U.S.C. § 7410 (1982). 

12. See Fla. Stat. § 403.161(1)(a) (Supp. 1988); Ind. Code 

Ann. § 13-7-3(a) (Bums 1987); La. Rev. Stat. Ann. § 

30:2025(F)(2) (1989); Mass. Gen. Laws. Ann. ch.l11, 

§ 142A (West Supp. 1989); N.D. Cent. Code § 23 -25-

10(2) (1978); Ohio Rev. Code Ann. § 3704.99(A) 

(Anderson 1988); Wyo. Stat. § 35-11-901(j) (1988). 

13. Michigan, Mississippi, Nebraska, Tennessee, Utah, 

Vermont, and Virginia. 

14. Colorado, Georgia, Iowa, Minnesota, Missouri, Nevada, New Jersey, New Mexico, South Dakota, Texas, 

West Virginia, and Wisconsin. 

15. Mielke, "Remarks of Donald E. Mielke," p. 16. 

statutory Issues 65 
--

Glossary 

ABA: American Bar Association. 

ACWD: Alameda County (California) Water District. 

A.G.: Attorney Genernl. 

ALI: American Law Institute. 

CAA: Clean Air Act, 42 U.S.C. §§ 7401 et seq. 

C & D: A term used in the construction trade to connote 

construction and demolition debris. 

CDAA: California District Attorneys Association. 

CEO: Chief Executive Officer. 

CERCLA: ComprehensiveEnvironmentalResourceCompensation and Liability Act, 42 U.S.C. §§ 9601 note, et seq. 

CHEMUlT: An interagency environmentaltaskforce that 

includes the Illinois State Police, the Illinois Environmental 

Protection Agency, the Metropolitan Water Reclamation 

District of Greater Chicago, and the Illinois Attorney 

General's Office. CHEMlllT's purpose is to coordinate 

environmental investigations in the Chicago metropolitan 

area. 

CUP: California Highway Patrol. 

CSTI: The California Specialized Training Institute in San 

Luis Obispo, California, conducts a course on hazardous 

materials investigation. 

CWA: Clean Water Act, 33 U.S.C. §§ 1251 et seq. 

CWET: Clean Water Enforcement Trust. 

DA.: District Attorney. 

DEP: Monmouth County (New Jersey) Department of 

Environmental Protection. Also Massachusetts Department of Environmental Protection. 

DOJ: United States Department of Justice. 

ELI: Environmental Law Institute. 

EPA: United States Environmental Protection Agency. 

FBI: Federal Bureau of Investigation. 

FIFRA: Federal Insecticide, Fungicide and Rodenticide 

Act, 7 U.S.C. §§ 136 et seq. 

FLETC: The Federal Law Enforcement Training Center 

is an interagency law enforcement training facility. 

FWPCA: Fedel"'al Water Pollution Control Act, 33 U .S.C. 

§§ 1251 et seq. 

Hazardous Waste: Pursuant to RCRA, EPA is authorized 

to define hazardous waste as any solid waste, or combination of solid wastes, that, because of its quan ti ty, concentration, or physica~ chemical, or infectious characteristics 

may 

a. cause, or significantly contribute to an increase in 

mortali~y or an increase in serious, irreversible, or 

incapacit~ting reversible illness; or 

b. pose a substantial present or potential hazard to 

human health or the environment when improperly 

treated, stored, transported or disposed of, or otherwise managed (42 U.S.C. §§ 6903, 1983 ed., Supp. 

1991) 

HSWA: Hazardous and Solid Waste Amendments of 1984, 

42 U.S.C. § 6901. 

IEPA: Illinois Environmental Protection Agency. 

IFF: International Flavors and Fragrances. 

LADHS: Los Angeles County (California) Department of 

Health Services. 

LQG: Large-quantity generator of hazardous waste. 

MEEA: The Midwest Environmental Enforcement Association is one of the Nation'S four regional environmental 

enforcement organizations; its members include the Midwestern States. 

MOU: Memorandum ofunderstandio~. 

MWRDGC: Metropolitan Water Reclamation District of 

Greater Chicago. 

Glossary 67 
NAAG: National Association of Attorneys General. 

NCP: National Contingency Plan. 

NDAA: National District Attorneys Association. 

NEEP: TheNortheastEnvironmentalEnforcementProject 

is one of the Nation's four regional environmental enforcement organizations; its members include the states of the 

Northeast and mid-Atlantic region. 

NEIC: National Enforcement Investigations Center ofthe 

Environmental Protection Agency. 

NO: National Institute of Justice. 

Noise Control Act of 1972: 42 U.S.C. §§ 4901 et seq. 

NPDES: The National Pollution Discharge Elimination 

System is the central component ofthe Clean Water Act, 33 

U.S.C. §§ 1251 et seq. It regulates discharges from point 

sources, industrial discharges, and municipal treatment 

plants and provides for the issuance of permits by EPA for 

pollutant dischargers from point sources into any of the 

Nation's waters. 

NPL: National Priority List of contaminated sites for 

cleanup. This list is established pursuant to CERCLA 

(Superfund). 

OSHA: Occupational Safety and Health Administration. 

PCDs: Polychlorinated biphenyls. 

POTWs: Publicly owned treatment works. 

68 Local Prosecution 01 Environmental Crime 

RCRA: Resource Conservation and Recovery Act of 1976, 

42 U.S.C. §§ 6901 et seq. 

RICO: Racketeer Influenced and Corrupt Organizations 

Act, 18 U.S.C. §§ 1961 et seq. 

SARA: Superfund Amendments and Reauthorization Act 

of 1986,42 U.S.C. §§ 9601 et seq. 

SIP: State Implementation Plan (for air quality). The Clean 

Air Act, 42 U.S.C. §§ 7401 et seq., does not require States 

to enact minimum criminal provisions to receive EPA 

approval for their SIP. 

Southern Environmental Enforcement Network: One 

of the Nation's four regional environmental enforcement 

organizations; its members include the Southern States. 

"Split" Sample: Duplicate site samples taken by law 

enforcement and/or regulatory investigators to be provided 

to defendants. 

SQG: Small-quantity generator of hazardous waste. 

TSCA: Toxic Substances Control Act, 15 U.S.C. §§ 2601 

et seq. 

TSDF: Treatment, storage, and disposal facility. 

Western States Hazardous Waste Enforcement Net· 

work: One of the Nation's four regional environmental 

enforcement organizations; its members inclUde the West· 

em States. 
List of Cases 

Camera v. Municipal Court, 387 U.S. 523 (1966). 

People of the State of Colorado v. Colorado Chemical 

Specialties, Inc., Ralph Mika, and Ronald Drake, 88 CR 

181 (Dist. Ct. Golden). 

Commonwealth v. Blosenski Disposal Service, 566 A. 2d 

845 (Pa. 1989). 

Los Angeles Chemical v. Superior Court, 226 Cal. App. 3d 

(December 1990). 

New York v. Burger, 482 U.S. 691 (1987). 

People of the State of California v. California Industrial 

Salvage, Industrial Movers and Stanley Steves, Los 

Angeles Co. Municipal Court # A 790399 (filed 10/8/86) 

People v. Chicago Magnet Wire Corp., 17 O.S.H. Rep. 

(BNA) 195 (111. App. Ct. July 8, 1987). 

People v. Film Recovery Systems, Inc., 84 C. 5064, 84 C. 

11091 (Cook Cnty. Cir. 1985). 

Peoplev. Pymm Thermometer, No. 930/86 (N.Y. Sup. Ct. 

Kings County, November 13,1987). 

People v. Robert A. Shearer et a1., Civ. No. 656387·5 

(Alameda Co. Super. Ct., filed October 2, 1989). 

People v. Shell Oil Company, Civ. No. H-140991-0 

(Alameda Co. Super. Ct., filed Apri128, 1989). 

People of the State of California v. Precision Specialty 

Metals, Inc., Plessy Precision Metals, Inc., C. Edwin 

Brady, et a1., Los Angeles Co. Municipal Court 

#31271386 (filed October 18,1983). 

State of New Jersey v. Capp Recycling, Frank Cappola, 

Anthony Cappola, et a1., Indict #90-12-1882-T, Superior 

Ct. App. Div. #A-3669-91TIF (Decided November 9, 

1992). 

State of New Jersey v. Imperial Oil/Champion Chemical, 

Indictment No. 87-02-0287. 

State of New Jersey v. International Flavors and Fragrances, Accusation No. 1701-10-86. 

State v. Campbell, 13 Ohio App. 3d 348, 469 N.E. 2d 882 

(1983). 

United States v. Franco and Torrcs, U.S. District Court, 

Central District, Calif., No. 90·3520.TJH. 

U.S. v. Halper, 490 U.S. 435 (1989). 

Zucker v. Stanford, 436 U.S. 547 (1978). 

list or Cases 69 

----------------------------------
Appendix A 

Federal Environmental 

Criminal Enforcement Statutes 

The following compilation of Federal Environmental CrillJinal Enforcement Statutes was prepared by the National 

Association of Attorneys General. (This version dated October 31,1991.) 

Appendix A 71 
~ -u 

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a. 

x 

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FEDERAL ENVIRONMEl"IITAL CR1M1NAL ENFORCEMENT STATUTES 

Prohibited Act 

42 u.S.C. § 6928 

Knowingly: 

'l'runsports or causes to be transported to facility which does 

not have pcrmit. 

'I'reals, slorcs or disposes without permit or in knowing 

violation of material condition or requirement of permit. or 

of interim status regulations or standards 

Knowingly: 

Omits materinl information or makes any false material 

statement or representation in document filed, maintained 

or used for purposes of compliance with federal or state 

regulations 

Generates, stores, treats, transports or handles and 

knowingly destroys, alters, conceals or fails to file any 

document required to be maintained or filed for purposes of 

compliance with federal or state regulations 

HAZARDOUS WASTE 

Level of 

Violation 

Class D 

Felony 

Class E Felony 

Maximum 

Imprisonment 

5 years 

2 years 

Maximum Fine 

Individual Corporation 

$50,OOO/day $50,OOO/day 

or or 

$250,000 $500,(KK} 

or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

$50,000/day $50,OOO/day 

or or 

$250,000 $250,000 

or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

Subsequent 

Violation 

Class C 

Felony: 

10 years; 

$101I,1I00/day 

or $50(},OOO for 

individulil or 

$l,OOlJ,O()() fur 

coq)Oratioll or 

twice gaill OJloss, 

whichever 

greater 

Class g 

Jo'elony: 

4 years; 

$lOO,OOO/day 

or $500,000 for 

individual or 

$l,O()O,O()O for 

corporation or 

twice gain or 

loss, 

whichcvclgreater 
~--~--~~--~-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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FEDERAL ENVIRONMENTAL CR1MINAL ENFORCEMENT STATUTES 

HAZARDOUSWASl'E (cont.) 

Maximum Finc 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corpomlion 

42 U.S.C. § 69'.l8 (cont.) 

'l'ransports without required manifcst or causes to be Class E 2 years $50,OOO/day $50,OOO/day 

transported without mnnifest Felony or or 

$250,000 $500,000 

i!!xports without conscnt of receiving country or not in or twice gain Of twice gain 

cOllformunce wilh applicable international agreement or loss, or loss, 

whichever whichever 

greater greatcr 

*If done knowingly and knows at time that places another Class C 15 years $250,000 $1,000,000 

person in imminent danger of death or seriou~ luv'ily Felony or twice gain or twice gain 

injury or loss, or loss, 

whichever whichever 

greater greater 

--_ .. _-------- ------- ---------

-4< Enhanced penalties 

Subticqucnl 

Violation 

Class g 

Felony: 

4 years; 

$IOO,OOO/day 

Of $5U(},OOO fill" 

individual Of I 

$l,OOO,O{}() Jor 

cOfpofatioll or 

twicc gain Of 

loss, 

whichevc." 

greatcr 

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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

HAZARDOUS WASTE (cont.) 

Maximum Fine 

Level of Maximum 

Prohibited Act: Violation Imprisonment Individual Corporation 

42 U.S.C. 9603(b} 

Any person in charge of vessel or facility from which Class E 3 years $250,000 $500,000 

hazardous substance is released (other than federally }t~elony or twice gain or twice gain 

permitted release) in quantity equal to or greater than or loss, or loss, 

specified, fails immediately to notify National Response whichever whichever 

Center as soon as had knowledge, or submits in such greater greater 

notification any information knows to be false of misleading 

42 U.s.C. 9603(d)(2) 

Knowingly destroys, mutilages. erases, disposes of, Class E 3 years $250,000 $500,000 

conceals or renders unavailable or unreadable, or falsifies, Felony or twice gain or twice gain 

any records regar~ing disposal of hazardous substances at or loss, or loss, 

fucility whichever whichever 

greater greater 

-

Subsequent 

ViolaUon 

Class D 

r'elony: 

5 years; 

$250,000 fur 

individual ur 

$500,000 for 

corporalioll Ill" 

lwice gain m" 

luss, 

whichever 

grealer 

Class D 

Felony: 

5 years; 

$250,000 fijr 

individual or 

$500,OIJO for 

corporalioll or 

lwice gain or 

luss, 

whiclwver 

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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

HAZARDOUS WASTE (cont.) 

Prohibited Act 

42 U.s.C. §9612(b)(l) 

Knowingly gives or causes to be given false information as 

part of clnim under federal Superfund statute 

42 U.s.C. § 11045(b){4) 

Knowingly nnd willfully fails to provide required 

notification under federal Emergency Planning and 

Community Right-to-Know Act 

Level of 

Violation 

Class E 

Felony 

Class E 

Felony 

Maximum 

Imprisonment 

3 years 

2 years 

Maximum Fine 

Individual 

$250,000 

or twice gain 

or loss, 

whichever 

greater 

$250,000 

or twice gain 

or loss, 

whichever 

greater 

Corporation 

$500,O(JO 

or twice gain 

or loss, 

whichever 

greater 

$500,000 

or twice gain 

or loss, 

whichever 

greater 

Suhsequent 

Violation 

Glass n 

I"elony: 

5 years; 

$250,(JOO fill" 

individual or 

$500,000 for 

cOrIlOration 01-

twice gain or 

loss, 

whichever 

greater 

Class E 

Felony: 

4 years; 

$250,000 for 

individual or 

$500,000 for 

COrl)Orntion or 

twice gain Of 

loss. 

whichever 

greater 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

HAZARDOUS WASfE (cont.) 

Maximum Fine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

49 U.S.C. App. § 1809{b) 

l{nowingly unlawfully, alters, removes, defaces, destroys Class D 5 years $250,000 $500,000 

or tampers with any marking, label, placard or description Felony or twice guin or twice gain 

on document, or with any package, container, motor vehicle, or loss, or loss, 

rail freight csr, aircraft or vessel. required or used for whichever whichever 

transportation of hazardous materia! greater greater 

WilIfuJ]y violates federal Hazardous Materials 

Transportation Act, or order or regulation 

-- - - --- - -- -- ---- ---- --------- ------------- ------------... -- -- - - --- -

Subsequent 

Violation 

i 

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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

WATER POlLUTION 

Maximum {"ine 

Level of Maximum Subsequent 

Prohibited Act Violation Imprisonment Individual Corporation Violation 

"" 

33 U.S.C. § 406 

Violates provisions prohibiting obstruction of navigable Class A 1 year $100,000 $200,000 

waters Misdemeanor or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater grenter 

($250,000 if ($500,000 if 

results in results in 

death) denth) 

(minimum. (minimum 

$500) $5()() 

33 U.S.C. § 411 I 

Violates provisions prohibiting deposit of refuse in Class A 1 year $100,000 $200,000 

navigable waters Misdemeanor (minimum or twice gain or twice gain 

30 days) or loss, or loss, 

whichever whichever 

greater grenter 

($250,000 if ($500,000 if 

results in resulLs in 

denth) death) 

(minimum (minimum 

$500) $5(0) 

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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

WATER POLLUTION (coot.) 

Maximum Ii'ine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

33 U.S.C. § 13W(c) 

Negligentiy: Class A 1 year $25,OOO/day $25,OOO/day 

Misdemeanor or or 

Violates sections providing effluent limitations, national $100,000 $200,000 

standards of performance, and toxic and pretreatment or twice gain or twice gain 

standards; covering rf:cords and reportll, and inspections; or loss, or loss, 

!lTohibiting discharges of oil or hazardous substances; or whichever whichever 

covering aquaculture or disposal or t?le of sewage sludge greater greater 

($250,000 if ($500,OOO if 

Violates any permit condition or limitation implementing results in results in 

any such section in NPDES or SPDES permit death) death) 

(minimum (minimum 

Violates requirement in federal or state pretreatment $2,500/day) $2.500/day) 

program or in permit fQr dredged or fiU material issued by 

Corps of Engineers or state 

Introduces into sewer system or POTW any pollutant or 

hazardous substance which knew or reasonably should have 

known could cause persoOfJl injury or property damage or 

{other than in compliance with all federal, state or local 

requIrements or permits} which cause~ POTW to violate 

£!ffiuent Iimitntion or federal or slate permit condition 

------- - -------- ~- ---- - - ----------

Subsequent 

Violation 

Class g 

Felony: 

2 yellrs; 

$50,OOO/duy j 

or $250,000 for 

individual or 

$500,000 for 

corporation or 

twice gain or 

loss, 

whichever 

greater 

(minimum 

$2,500/day) 

-----------
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

WATER POLLUllION (cont.) 

Maximum It'ine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

33 U.S.C. § 1319(c) (conL) 

* If done knowingly - many acts are enumerated Class E 3 years $oO,OOO/day $50,OOl.l/day 

Felony or or 

$250,000 $500,000 

or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

{minimum (minimum 

$5,OOO/day) $5,OOO/day) 

Enhanced penalties 

SuhseqlH!IIl 

Viola lion 

Class D 

It'elony: 

6 yeaTs; 

$lOO,OOO/day 

OT 

$250,000 for 

individual or 

$5UO,O()0 for 

corporation or 

twice gain or 

loss, 

whichever 

greater 

(minimum 

$5,OOO!day) 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

WATERPOLLUI'ION (cont.) 

Maximum Fine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual COTporation 

33 U.S.C. § 1319(c) (cont.) 

*If done knowingly and knows at time that places another Class C 15 years $250,000 $1,000,000 

person in imminent danger of death or serious bodily Felony or twice gain or twice gain 

injury or loss, or loss, 

whichever whichever 

greater greater 

Knowingly makes any false material statement, Class E 2 years $250,000 $500,O(}U 

representation or certification in any document filed or Felony or twice gain or twice gain 

required, or knowingly falsifies, tampers with or renders or loss, or loss, 

inaccurate any monitoring device or method whichever whichever 

greater greater 

.. i.:,.lulIu""ti 1"" flU It i ('5 

Subsequent 

Violation 

Class n 

Felony: 

30 years; 

$500,OO() for 

individual or 

$2,000,000 for 

corpoTation or I 

twice gain or 

loss, 

whichever 

greater 

Class E 

Felony: 

4 years; 

$20,OOO/day or 

$250,000 for 

individual or 

$500,000 for 

corporation or 

twice gain or 

loss, 

whichever 

greater 
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FEDERAL El\4~ONMENTAL CRIMINAL ENFORCEMENT STATUTES 

WATI:RPOLLUTION (coot.) 

Maximum Fine 

Level of Maximum Suhscqucnt 

Prohibited Act; . Violation I mprison men t Individual Corporation Violation 

33 U.S.C. § 1321(b)(5) 

As person in charge of vessel or onshore or offshore facility, Class D 5 years $250,000 $500,000 

as soon as has knowledge of discharge of oi! or hazardous Felony or twice gain or twice gain 

substance in excess of specified quantity, fails immediately or loss, or loss, 

to notify appropriate federal agency whichever whichever 

greater greater 

33 U.S.C. § 1415(b) 

I{nowingly violates provisions regulating ocean dumping Class A 1 year $100,000 or $2()O,OOO or 

or regulations or permits Misdemeanor twice gain or twice gain or 

loss, loss, 

whichever whichever 

greater greater 

($250,000 if ($500,UOO if 

results in results in 

death) death) 

·If activity involves dumping medical waste into ocean Class D 5 years $250"m>Oor $500,000 or 

waters Felony twice gain or twice gain or 

loss, loss, 

whichever whichever 

greater greater 

--_.-

.. Enhanced penalties 
~ u 

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» 

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FEDERAL ENVIRONl\IENTAL CR1MINAL ENFORCEMENT STATUTES 

WATERPOILUTION (coot.) 

Maximum Fine 

Level of Maximum Suhsequent. 

Prohibited Act. Violation Imprisonment Individual Corporation Violation 

33 U.S.C. § 1908(a) 

Knowingly violates Marpol Protocol or chapter governing Class D 6 years $250,000 or $500,000 or 

prevention of pollution from ships Felony !.wice gain or twice gain or 

loss, loss, 

whichever whichever 

greater greater 

33 U.s.C. § 2009(c) 

Knowingly violates chapter govf!rning shore protection Class E 3 years $250,000 fir $500,000 or 

from municipal or commercial waste Felony twice gain or twice gain or 

loss, loss, 

whichever whichever 

greater greater 

42 U.s.C. § 3OOh-2(b) 

Willfully violates any requirement of underground Class E 3 years $250,000 or $500,000 or 

injection control program under Safe Drinking Water Act Felony twice gain or t.wice gain or 

or order loss, loss, 

whichever whichever 

greater greater 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

WATERPOLLUfION (cont.) 

Prohibited Act 

42 U.S.C. § 300i-l 

Tampers with public water system 

~ Attempts to tamper, or makes threat to tam~~r. --nth public 

drinking water system 

42 U.s.C. § 9603(b) 

As person in charge of vessel from which hazardous 

substance is released (other than federally permitted 

release) into or onto navigable waters, adjoining shorelines 

or walers of contiguous zone. or which may affect nalural 

resources of United States, in quantity equal to or greater 

than specified, fails immediately to notify National 

,. ResJlonse Center as soon ns has knowledge. or submits in 

such notification any information knows t.o be false or 

misleading 

Level of 

Violation 

Class D 

Felony 

Class E 

Felony 

Class E 

Felony 

Maximum 

Imprisonment 

5 years 

3 years 

3 years 

Maximum Fine 

Individual 

$250,000 or 

twice gain or 

loss, 

whichever 

greater 

$250,000 or 

twice gain or 

loss, 

whichever 

greater 

$250,000 or 

twice gain or 

loss, 

whichever 

greater 

Corporation 

$500,000 or 

twice gain or 

loss, 

whichever 

greater 

$500,000 or 

twice gain or 

loss, 

whichever 

greater 

$500,000 or 

twice gain or 

loss, 

whichever 

greater 

Subsequent 

Violation 

Class D 

Felony: 

5 years; 

$2W,OO(} for 

individual or 

$500,OnO for 

corporation or 

twice gain or 

luss, 

whichev(!r 

greater 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

Prohibited Act 

42 U.S.C. § 7413(c) 

l{n.lwingly violates any requirement or prohibition of state 

implementation plan, any compliance or penalty order, any 

requirement or prohibItion regarding new source 

performance standards, any NESHAP, section relating to 

inspections, section relating to solid waste combustion, 

section relating to preconstruction requirements, any 

emergency order, permit, or requirement or prohibition 

relating to acid deposition control or stratospheric ozone 

cmILro), or any requirement of any rulc, order, waiver or 

permit or for payment of fee (other than for mobile source) to 

United Stutes 

Knowingly: 

Makes any false material statement, representation, or 

certification in, or omits material information from, or 

alters, conceals or fails to file or maintain any document 

Fails to notify or report as required 

I;'ulsifics, tampers with, renders inaccurate or fails to 

instull lIny monitoring device or method 

AmPOLLlITION 

Level of 

Violation 

Class D 

Felony 

Class E 

Felony 

Maximum 

Imprisonment 

5 years 

2 years 

Maximum Fine 

Individual Corporation 

$250,000 $500,000 

or twice gain or twice gain 

or Joss, or Joss, 

whichever whichever 

greater greater 

$250,000 $500fJOO 

or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

Subsequent 

Violation 

Class C 

I<'elony: 

10 years; 

$500,OO() for 

individual or 

$1,000,000 for 

corporatioll or 

twice guin or 

loss, 

whichever 

greater 

Class E 

Felony: 

4 years; 

$500,000 for 

individual or 

$1,000,000 for 

corporation or 

twice gain or 

loss, 

whichever 

grenter 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

AIRPOLLUTION (cont.) 

Maximum Fine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

42 U.S.C. § 7413(c) (coot.) 

Knowingly fails to pay fee owed to United Stotes Class A 1 year $100,000 $200,000 

Misdemeanor or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

Negligently releases into ambient air except in accordance Class A 1 year $100,000 $200,000 

with standard or permit any hazardous air pQllutant or Misdemeanor or twice gain or twice gain 

extremely hazardous substance, and at time negligently or loss, or loss, 

places another person in imminent danger of death or whichever whichever 

serious bodily injury greater greater 

($250,000 if ($500,000 if 

results in results in 

death) death) 

- - -- ------------- ------ ------------- --------------

Subsequent 

Violation 

Class E 

Felony: 

2 years; 

$200,000 filf 

individual or 

$400,000 for 

corporation or 

twice gain or 

loss, 

whichever 

greater 

Class E I 

Felony: 

2 years; 

$250,000 for 

individual or 

$500,000 for 

corporation or 

twice gain or 

loss, 

whichever 

greater 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

AIR POLLurlON (cont.) 

Maximum Fine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

42 U.S.C. § 7413(c) (cont.) 

*If done knowingly and knows at time that places another Class C 15 years $250,000 $1,000,000 

person in imminent danger of death or serious bodily Felony or twice gain or twice gain 

injury or loss, or loss, 

whichever whichever 

greater greater 

* Enhanced penalties 

Subsequent 

Violation 

i 

Class n 

Felony: 

30 yenrs; 

$500,000 for 

individual or 

$2,000,000 for 

corporation or 

twice gain or 

loss, 

whichever 

grenter 
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FEDF..RAI, ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

OI'HER 

Maximum Fine 

Level of Maximum Subsequent Prohibited Act. Violation Imprisonment Individual CorpoTation Violnlion 

Pesticides 7 U.s.C. § 136l(b) 

As registrant, applicant. or producer, knowingly violat.es Class A 1 year $100,000 $200,000 

subchapter Misdemeanor or twice gain or twice gain 

or loss, or loss, 

As commercial applicator or other person not. described whichever whichever 

nbove who distribut.es or sells, knowingly violat.es greater greater 

subchapter ($250,000 if ($500,000 if 

results in results in 

death) death) 

As private appHcator or ot.her person not described above. Class C 30 days $5,000 $10,000 I knowingly violates subchapter Misdemeanor or twice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

($250,000 if ($500,000 if 

result.s in results in 

death) death) 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

OO'HER (cont) 

Prohibited Act 

Toxic Substances 15 U.S.C. § 2614 

I 

~ Level of 

Violation 

Fails or refuses to comply with any rule or order under I Class A 

section covering testing of chemicals; any requirement, Misdemeanor 

rule or order under sections covering pre-manufacture 

notice for new chemicals and marking, recordkeeping, 

stomge and disposal of specified hazardous chemical 

substances such as PCBs; or Bny requirement, rule or order 

. under Asbestos Hazard Emergency Response Act 

I Uses for commercial purposes chemical substance or 

mixture which knew or had reason to know was 

manufactured processed or distributed in violation of 

sections covering pre-manufacture notice and marking, 

recordkeeping, storage and disposal, or any rule or order 

thereunder, or any order issued under section covering 

imminent hazards 

Fails or refuses to establish or maintain records; or to 

submit reports, notices or other information; or to permit 

access to or copying of records, under chapter 

Fails or refuses to permit entry or inspection as required 

Maximum 

Imprisonment 

1 year 

Maximum Fine 

Individual 

$25,OOO/day 

or 

$1UO,OOO 

or twice gain 

or loss, 

whichever 

greater 

($250,000 if 

results in 

death) 

Corporation 

$25,OOO/day 

or 

$',mO,O()O 

or twice gain 

or loss, 

whichever 

greater 

($500,000 if 

results in 

death) 

Subsequent 

Violation 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

Prohibited Act 

Noise Control 42 U.s.C. § 4910(a)(1) 

Willfully or knowingly violates paragraphs on distribution 

of new products in conformity with regulations on noise 

emission standards or notice of level of noise; on 

importation of new products; or failure or refusal to comply 

with order, requirement or" regulation regarding 

maintaining or providing records or products for inspection 

or testing, or railroad or motor carrier noise emission 

sbmdard 

OIHER(cont.) 

Level of 

Violation 

Class A 

Misdemeanor 

Maximum 

Imprisonment 

1 year 

Maximum Fine 

Individual Corporation 

$25,OOO/day $25,OOOfday 

Subsequent 

Violation 

2 years; 

$50,OOO/day 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

Prohibited Act 

Used Oil 42 U.s.C. § 6928 

Knowingly: 

Omits material information or makes any false material 

statement or representat:on in document filed, maintained 

or used for purposes of compliance with federal or state 

regulations 

Generates, stores, treats, transports or handles and 

knowingly destroys, alters, conceals or fait's to file any 

document required to be maintained or filed for purposes of 

compliance with federal or state regulat.ions 

'l'ransports without required manifest. or causes to be 

transported without manifest 

Stores, treats, transports or causes to be transported, disposes 

of or handles in knowing vfCllation of 1}ny material, 

condition or requirement of permit or regulations or 

standards 

orHER (oont.) 

Level of 

Violation 

Class E 

Felony 

Maximum 

Imprisonment 

2 years 

Maximum Fine 

Individual 

$50,OOO/day 

or 

$250,000 

or twice gain 

or loss, 

whichever 

greater 

Corporation 

$50,OOO/day 

or 

$500,000 

or twice gain 

or loss, ~ 

whichever 

greater 

Subsequent 

Violation 

Class l~ 

lo'elony: 

4 years; 

$100,OOO/day 

or 

$500,000 for 

individual or 

$1,000,000 for 

corporation or 

twice gain or 

loss, 

whichever 

greater 

.... ,........ sn .. ~ .................... ~ ...... ________________________________________________________________________ • ____________________________________________________________________________ _ 
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FEDERAL ENVIRONMENTAL CRIMINAL ENFORCEMENT STATUTES 

mHER (conl) 

Maximum Fine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

. Used Oil 42 U.s.C. § 6928 (conL) 

*If done knowingly and knows at time that places another Class C 15 years $250,000 $l,OOO,()(){) 

person in imminent danger of death or serious bodily Felony or twice gain ilr twice gain 

injury or loss, or loss, 

whichever whichever 

greater greater 

Medical Waste 42 U.s.C. § 6992d 

Knowingly violates requirements or regulations under Class D 5 years $50,OOO/day $50,OOO/day 

subchapter Felony or or 

$250,000 $500,000 

or t.wice gain or twice gain 

or loss, or loss, 

whichever whichever 

greater greater 

* Enhanced penalties 

Subsequent 

Violalion 

Class C 

Felony: 

10 years; 

$lOO,OOO/day 

or 

$250,()(){) 

for individual 

or $500,000 for 

corporalion or 

twice gain or 

loss, 

whichever 

grellter 

--------------------------------------
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FEDERAL ENVIRONMENTAL CRlMlNAL ENFORCEMENT STATUTES 

OTHER (cont) 

Maximum Fine 

Level of Maximum 

Prohibited Act Violation Imprisonment Individual Corporation 

Medical Waste 42 u.S.C. § 6992d (90nL) 

Knowingly: Class E 2 years $50,OOOlday $50,OOO/day 

Felony or or 

Omits material information or makes any false material $250,000 $500,000 

statement or representation in document. filed, maintained or t.wice gain or twice gain 

or used for purposes of compliance or loss, or loss, 

whichever whichever 

Generates, st.ores, treat.s, transports, disposes of or handles great.er greater 

and knowingly dest.roys, alters, conceals or fails to file any 

document required t.o be maint.ained or filed for purposes of 

compliance 

*If any of above violations done knowingly and knows at Class C 15 years $250,000 $1,000,000 

time that. places another person in imminent danger of Felony or twice gain OT twice gain 

death or serious bodily injury or loss, or loss, 

whichever whichever 

greater greater 

----.-----~-----.-.- -------

* Enhancecl penalties 

. 

Suhsequent 

Violation 

Class E 

Felony: 

4 years; 

$100,OOO/duy 

or 

$250,000 for 

individual o. 

$500,000 

for corporation! 

or twice gain 

or loss, 

whichever 

greater 
-

Appendix B 

Resources for Local 

Environmental Criminal Prosecution 

State and National Organizations 

American Bar Association, Natural 

Resources and Environmental Law Section 

The Natural Resources and Environmental Law Section of 

the American Bar Association (ABA) periodically conducts one-day workshops on particular environmental statutes. The American Bar Association is the nation's largest 

professional organization of lawyers, law students, and 

other legal professionals. The ABA offers continuing legal 

education programs covering a broad range of topics of 

concern to legal professionals. 

Contact: Ms. Patricia Brennan 

Address: Natural Resources and 

Environmental Law Section 

American Bar Association 

750 N. Lakeshore Drive 

Chicago, IL 60611 

(312) 988-5577 

Fax: (312) 988-5500 

Americall Law Institute-American Bar Association 

The American Law Institute-American Bar Association 

(ALI-ABA) is a non-profit organization providing continuing professional education for lawyers since 1947. ALIABA offers a five-day workshop on Environmental Litigation. 

Contact: Alexander Hart, Esq. 

Address: ALI-ABA 

American Law Institute 

4025 Chestnut Street 

Philadelphia, PA 19104-3099 

(215) 243-1630 

Fax: (215) 243-1664 

California District Attorneys Association 

The California District Attorneys Association (CDAA) 

offers introductory and advanced training courses in environmental prosecutions for prosecutors, and regulatory and 

investigative personnel. The intensive workshops, presented in cooperation with the University Extension ofthe 

University of California, are part of CDAA's California 

Specialized Training Institute. Past seminar titles have 

included "Major Laws for Environmental Enforcement"; 

"Penalties, Remedies, Sentencing"; "You Don I tHave to Be 

a Chemist to Prove Environmental Violations"; and "Investigations." 

Contact: Michael W. Sweet, Executive Director 

Address: California District Attorneys Association 

1414 K Street, Suite 300 

Sacramento, California 95814 

(916) 443-2017 

Fax: (916) 443-0540 

Appendix A 95 
Environmental Law Institute 

The Envirnnmental Law Institute (ELI) developed and 

delivered its course entitled "Hazardous Waste: Crime and 

Punishment" in cooperation with the Northeastern Environmental Enforcement Project and the Midwestern Environmental Enforcement Association. Initial funding to 

develop the course was provided by the Geraldine Dodge 

Foundation. 

The course is designed to bridge the information gap 

between environmental law specialists and criminal prosecutors. It addresses the critical shortage of attorneys in 

State and local government who have experience in both 

criminal enforcement and litigating environmental cases. It 

was initially targeted for a select audience of experienced 

criminal prosecutors and civil environmental attorneys 

from 20 States in the Northeast and Midwest. Subsequently 

it has been offered to a similar group of State and local 

government attorneys from Southern States. 

The course employs an innovative "cross-training" format, 

which provides the prosecutors with in-depth training in 

environmental law , while the environmental attorneys arc 

simultaneously being trained in criminal law. The groups 

then also work togetheron hypothetical case studies, culminating in a mock trial in which participants play the role of 

prosecutor, defendant, agency witness, and defense counsel 

and a faculty member serves as judge. 

By training their attorneys through this course, State and 

local environmental agencies have been able to develop 

comprehensive enforcement programs and include criminal prosecutions as a valuable part of their environmental 

cleanup strategies. 

Contact: Suellen T. Keiner, Senior Attorney 

Address: Environmental Law Institute 

1616I' Street, NW, Suite 200 

Washington, DC 20036 

(202) 328-5150 

Fax: (202) 328-5002 

Federal Bureau of Investigation 

The Federal Bureau ofInvestigation {FBI) should be contacted if an environmental case appears to involve Federal 

criminal laws or if the resources of the Bureau are required 

to assist with a major investigation. Reflecting the FBI's 

enhanced interest and involvement in environmental crime, 

96 Local Prosecution of EnVironmental Crime. 

the April 1991 l<"'BILawEnforcementBulietinis devoted to 

environmental crimes and includes articles entitled "Environmental Crimes: Investigative Basics," "The Environmental Protection Forum," and "Environmental Crimes 

Prosecution." TheBulletin is published monthly and can be 

obtained from the Bureau. 

Contact: Every major metropolitan area has an office. 

Address: Federal Bureau of Investigation 

9th and I'ennsylvania Avenue, N.W. 

Washington, D.C. 20535 

(202) 324-4260 

Fax: (202) 324 .. 4705 

Federal Law Enforcement Training Center 

The Federal Law Enforcement Training Center (FLETC) is 

an interagency law enforcement training facility with responsibility for training personnel from State and loC'.allaw 

enforcement agencies in advanced topic areas designed to 

develop specialized law enforcement skills. Twice each 

year FLETC offers an excellent hazardous waste investigations training program. Classes are specifIcally designed to 

meet the needs of regulator,) personnel and criminal investigators by training participants in the skills and techniques 

required for an effective response to hazardous waste crime. 

The training program stresses a multidisciplinary team 

approach to criminal environmental enforcement and em .. 

phasizes the importance of a good working relationship 

between criminal investigators and regUlatory personnel. 

This emphasis on cross-training means that upon completion of the program participants will be trained in the skills 

they require in their respective disciplines as well as have 

an enhanced understanding of the role and needs of personnel from other fields. 

For acceptance into the program, applicants must be fulltime investigators of public regulatory or law enforcement 

agencies assigned to hazardous waste investigations. Since 

the program is designed to encourage a team approach, 

jurisdictions registering teams of investigators and regula N 

tory personnel will be given priority. The program is offered 

free of charge. 

Contact: Phil Andrew, EPA-Cm Representative 

Address: Federal Law Enforcement Training Center 

Glynco, Georgia 31524 

(912) 267·2726 

Fax: (912) 267·2894 
-

National Association of Attorneys General 

The National A'isociation of Attorneys General (NAAG) 

has compiled and summarized Federal and State environmental enforcement laws in an easy-to-use document entitled Summaries ofF ederal andStateEnvironmental Criminal Enforcement Statutes. NAAG has also drafted model 

environmental laws and presented them in a booklet called 

Sample Environmental Criminal Enforcement Statutes. 

The two publications are sold together for $50 for government agencies and $100 for others. 

Contact: Ann Hurley, Esq., Environment Project Counsel 

Nancy Szabo, Environment Project Manager 

Address: National Association of Attorneys General 

444 North Capitol Street, Suite 339 

Washington, D.C. 20001 

(202) 434-8000 

Fax: (202) 434-8008 

National District Attorneys Association 

The National District Attorneys Association (NDAA) has 

taken an aggressive approach to criminal environmental 

enforcement. A former chairperson of NDAA's Environmental Protection Committee was Donald Mielke, the 

Jefferson and Gilpin Counties' district attorney and an 

outspoken advocate of enhanced criminal enforcement 

efforts. 

Contact: Richard Nixon, Esq.; Director 

Address: National Environmental Crime 

Prosecution Program 

National District Attorneys Association 

99 Canal Center Plaza, Suite 510 

Alexandria, Virginia 22314 

(703) 519-1645 

Fax: (703) 836·3195 

The New Jersey State Environmental Prosecutor 

The N~w Jersey State environmental prosecutor is an 

assistant attorney general with access to the State grand jury 

and to all criminal intelligence information. The en:vironmental prosecutor's responsibilities include criminal, civil, 

and administrative aspects of environmental enforcement 

matters. lUs or her task is to coordinate and prioritize the use 

of these resources in conjunction with the resIYonsibility to 

oversee prosecutions in priority cases and to create a 

comprehensive environmental enforcement program. The 

prosecutor has the authority, jurisdiction, and mandate to 

cross all State department and division lines to effectively 

coordinate the state's environmental enforcement efforts. 

Contact: Steven J. Madonna, New Jersey Stl'lte 

Environmental Prosecutor 

Address: Office of the Environmental Prosecutor 

25 Market Street 

CN085 

Trenton, New Jersey 08625 

(609) 292-3924 

Fax: (609) 984-7299 

Ohio Attorney General's Office) 

Environmental Enforcement Section 

Assistant Attorney General,}. Michael Marous ofthe Environmental Enforcement Section, Ohio attorney general's 

office, and two co-workers prepare a periodic criminal 

procedure update for environmental prosecutors. The March 

1991 publication is a, compilation of Federal Supreme, 

circuit, and district court case annotations dealing with 

Fourth,Fifth, and Sixth Amendment procedural matters. 

Contact: J. Michael Marous, Assistant Attorney General 

Address: EnviIonmental Enforcement Section 

Ohio Attorney General's Office 

30 East Broad Street, 25th Floor 

Columbus, Ohio 43266·0410 

(614) 466-2766 

U.S, Department of Justice) 

Environment and Natural Resources 

Division: Environmental Crimes Section 

The Environmental Crimes Section and individual U.S. 

attorneys' offices nationwide prosecute environmental criminal cases under Federal law • 

Contact: Herbert G. Johnson, Esq., Trial Attorney 

Address: Environmental Crimes Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

601 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

(202) 272-9846 

Fax: (202) 272-4389 

Appendix B 97 

--
U.S. Environmental Protection Agency: 

Criminal Investigation Division (previously, 

the National Enforcement Investigation Center 

[NEICjlocated in Denver, Colorado) 

The CriminalInvestigation Division with the EPA's Office 

of Criminal Enforcement is the investigative component of 

the EPA's criminal enforcement efforts. The Criminal 

Investigation Division maintains a staff oftrained criminal 

investigators who are located throughoutthe country, where 

they work closely with the regional counsel's office and the 

U.S. attorneys in pursuing environmental offenders. 

Contact: Earl Devaney, Director 

Address: Criminal Investigation Division's National 

Investigative Unit 

U.S. Environmental Protection Agency 

LE 134X 

401 M Street, S.W. 

Washington, D.C. 20460 

(202) 260-4539 

u.s. Environmental Protection Agency: 

National Enforcement Training Institute 

The Institute will provide training to prosecutors and government attorneys who handle civil cases, criminal investigators, and civil inspectors from the Federal, State, and 

local levels. 

Contact: Winston Hay the, Senior Attorney Advisor 

Address: National Enforcement Training Institute 

U.S. Environmental Protection Agency (LE-133) 

112 N.E. Mall 

401 M Street, S.W. 

Washington, D.C. 20460 

(202) 260-8783 

District Attorneys' Offices 

Alameda County DistrictAttorney's Office 

The Alameda County district attorney's office periodically 

conducts one-day environmental training seminars for police, fire, and health officers in Alameda County, Callior98 Local Prosecution 01 Environmental Crime 

nia. Seminar participants receive a packet of materials 

entitled Environmental Cases. 'Ibe comprehensive materials are designed for everyday use as well as the training 

workshops. The AJllmeda County district attorney's Consumer and Environmental Protection Division has made a 

substantial commitment to expanding training of Alameda 

County's investigative and regulatory personnel. Senior 

Deputy District Attorney Gilbert Jensen believes that training is the key to effective criminal environmental enforcement. 

Another helpful resource is the recently completedAlametia 

County EnvironmelltalEnforcementPlan. The objective of 

the plan is to enhance coordination of the county's 

multiagency team approach to hazardous material and 

hazardous waste enforcement. The document spells out the 

roles of the respective players in environmental enforcement, proposes questions that an investigator may wish to 

ask a witness or suspect, and provides a compilation ofthe 

relevant statutes. Useful fonns such as a "Tracking Document" and a "Hazardous Materials Release and Notification Report" are included, as are sample "Inspection and 

Search Warrants" and a "Memorandum of Points and 

Authorities" in support of the warrant. The Enforcement 

Plan's appendixes contain a comprehensive list of public 

agencies and contacts and definitions of tenns common to 

environmental incidents. 

Contact: Gilbert A. Jensen, Esq., Senior Deputy District 

Attorney 

Address: Consumer and Environmental 

Protection Division 

Alameda County District Attorney's Office 

7677 Oak(:.Jrt Street, Suite 400 

Oakland, CA 94621 

(510) 569-9281 

Fax: (510) 569-0505 

Cook County State's Attorney's Office 

Cook County assistant State's attorney Jay Magnuson, the 

deputy chief of the Public Interest Bureau, has had the 

bureau take an active role in environmental and occupationalsafety and health cases. Magnuson has also written on 

the subject of corporate criminal prosecutions in the environrnentaland occupationaisafety area. His article, "Policy 

Considerations in Corporate Criminal Prosecutions After 

People v. Film Recovery Systems, Inc.," (Notre Dame Law 
--

Review 62 [1987]: 913) examines a usefultoolin the county 

prosecutor's pursuit of environmental criminals. The article notes that "civil suits and workers' compensation will 

not deter illegal and injurious conduct in situations where 

the profits of such conduct exceed the monetary punishment 

meted oul." 

Contact: Jay C. Magnuson, Esq., Deputy Chief, 

Public Interest Bureau 

Address: Public Interest Bureau 

Cook County State's Attorney's Office 

500 Daley Center 

Chicago, Illinois 60602 

(312) 443-4605 

Fax: (312) 443-3000 

Jefferson and Gilpin Counties (Colorado) 

District Attortley' s Office 

District Attorney Donald Mielke has testified and lectured 

widely on the importance of enhanced use oflocal prosecution of environmental crime. A former chair of the Environmental Protection Committee of the National District Attorneys Association, Mielke believes in the importance of 

networks through which prosecutors can exchange information about trends, both in environmental crime and in 

environmental crime prosecution, and for the sharing of 

prosecutorial resources and experience. 

Contact: Donald Mielke, District Attorney 

Address: District Attorney's Office 

First Judicial District 

1726 Cole BOUlevard, Suite 300 

Golden, Colorado 80401-2697 

(303) 271-6800 

Fax: (303) 271-6888 

Los Angeles County District Attorney's Office 

The Los Angeles County district attorney's office Environmental Crimes/OSHA Division is the lead agency in the Los 

Angeles County Environmental Crimes Strike Force, probably the leading example of the interagency strike force 

approach to environmental prosecution. As such, Michael 

DI!1aney is a valuable informational resource on establishing environmental crimes strike forces. 

Contact: MichJel Delaney, Esq., Head Deputy, 

Environmental Crimes/OSHA Division 

Address: Environmental Crimes/OSHA Division 

Los Angeles County District Attorney's Office 

320 West Temple Street, Room 345 

Los Angeles, California 90012 

(213) 974-5901 

Fax: (213) 893-0150 

Monmouth County Prosecutor's Office 

The Monmouth County prosecutor's office has produced a 

package of materials that are available to other New Jersey 

county prosecutor's offices interested in establishing their 

own environmental crimes units. The materials are designed to help jurisdictions initiating their first environmental prosecutions to replicate the achievements of 

Monmouth County while avoiding some of the pitfalls. In 

its own one-week prosecutors' training program the 

Monmouth prosecutor's office has conducted environmental "awareness seminars" and screened the film Poisoning 

for Profit. 

Contact: Robert Honecker, Esq., 

Second Assistant Prosecutor 

Address: Environmental Unit 

Monmouth County Prosecutor's Office 

CourtHouse 

Freehold, New Jersey 07728-1261 

(908) 431-6506 

Fax: (908) 409~7521 

Regional Environmental 

Enfcrcement ASSOCiations 

The u.s. Environmental Protection Agency has funded the 

establishment of four multistate regional environmental 

enforcement associations. These provide extensive training, networking, informational resources, and customized 

research services to State and local prosecutors. In recent 

years, through these regional organizations, the EP A, as the 

nation's environmental regUlatory body, has encouraged 

the expanded use Of criminal prosecution of environmental 

offenders. Environmental Criminal Enforcement: A Law 

Enforcement Officer's Guide, a 1990 EPA publication, 

Appendix B 99 

I 
'= 

emphasizes the central role that law enforcement plays in 

effective environmental monitoring. Another important 

EPA publication deaiswith the public's role in environmen. 

tal enforcement. 

The Midwest Environmental Enforcement Association 

(MEEA) has prepared an excellent law enforcementofflcer's 

training video entitled EnvironmentalAwareness for Local 

Law Enforcement. MEEA is also producing a video to 

heighten public awareness of environmental crime. 

In 1986, together with the New Jersey Division of Criminal 

Justice, the Northeast Environmental Enforcement Project 

published Understanding Hazardous Waste Crime: A 

Multistate Examination of Offense and Offender Characteristics in the Northeast. This excellent document, pre. 

pared by Donald Rebovich, has served as a useful tool, to 

managerial and enforcement personnel in detecting and 

investigating hazardous waste crimes. The stUdy was the 

first research of hazardous waste offense and offender 

characteristics in the United States. It has been published as 

Dangerous Ground: The World of Hazardous Waste Crime 

(New Brunswick, N.J.: Transaction Publishers, 1992). 

Midwest Environmental 

Enforcement Association 

Contact: Thomas Fahey, Director 

Address: Midwest Environmental Enforcement 

A'lSOciation 

595 South State Street 

Elgin, Illinois 60123 

(708) 742·1249 

Fax: (708) 742·1478 

100 Locol Prosecullon at EnVironmental Crime 

Northeast Environmental Enforcement Project 

Contact: Cannen Hutchison, Director 

Address: Nmiheast Environmental Enforcement Project 

Richard J. Hughes Justice Complex 

25 Market Street, CN 085 

Trenton, New Jersey 08625 

(609) 292·0987 

Fax: (609) 984·4473 

Southern Environmental Enforcement Network 

Contact: A. Geary Allen, Director 

Address: Southern Environmental Enforcement Network 

Office of the Attorney General 

State of Alabama 

11 South Union Street 

Montgomery, Alabama 36130 

(205) 242·7369 

Fax: (205) 242·7458 

Western States Hazardous Waste Project 

Contact: Roger L. Hartzog, Director 

Address: Wc.stern States Hazardous Waste Project 

1275 West Washington 

Phoenix, Arizona 85007 

(602) 542·3881 

Fa.~: (602) 542·3522 
-

I 

I 

Appendix C 

Sample Environmental Criminal Statutes 

The following sample state environmental criminal statutes were developed by the National Association of Attorneys 

General. 

Appendix C 101 

1 
-

Hazardous Waste 

In general 

Example 1 

(a) Any person who knowingly: 

(1) transports or causeli to be transported any hazardous waste identified or 

listed under [the section defining hazardous waste] to a facility which does not have a 

permit as required under [the federal RCRA statute or the Marine Protection, Research 

and Sanctuaries Act, or the state hazardous waste laws]; or 

(2) treats, stores, or disposes of any hazardous waste identified or listed 

under [the section defining hazardous waste]-

(i) without a permit under [the federal RCRA statute or the Marine 

Protection, Research and Sanctuaries Act, or the state hazardous waste laws]; 

(ii) in knowing violation of any material condition or requirement of 

such permit; or 

(iii) in knowing violation of any material condition or requirement of 

any applicable interim status regulations or standards, 

shall be guilty of [define crime and punishment]. 

(b) Any person who knowingly: 

(1) transports without a manifest, or causes to be transported without a 

manifest, any hazardous waste required by regulations promulgated under [the federal 

ReRA statute] or under [the state hazardous waste laws] to be acrompanied by a manifest; 

or 

(2) exports a hazardous waste identified or listed under [the section defining 

hazardous waste]-

(i) without the consent of the receiving country; or 

(ii) where there exists an international agreement between the United 

States and the government of the receiving country establishing notice, export and 

enforcement procedures for the transportation, treatment, storage, and disposal of 

hazardous wastes, in a manner which is .not in conformance with such agreement, 

shall be guilty of [define crime and punishment]. 

Appendix C 103 
In geD~ral (cont.) 

(c) Any person who knowingly transports, treats, stores, disposes of or exports any 

hazardous waste identified or listed under (the section defining hazardous waste] in 

violation of any of the provisions o{ subsection (a) or (b) of this section, and who knows at 

that time that he or she thereby places another person in imminent danger of death or 

serious bodily injury, shall be guilty of [define crime and punishment]. 

Derived from FEDERAL (RCRA), 42 U.S.C. Sec. 6928, which punishes a violation 

of subsection (a) as a S·year/maximum felony (with doubled maximum penalties for 

subsequent convictions); a violation of subsection (0) as a 2-year/maximum felony 

(with doubled maximum penalties for subsequent convictions); and a violation of 

subsection (c) as a IS-year/maximum felony, including a $1,000,000 maximum fine 

for corporations. 

104 Local Prosecution of Environmental Crime 
..... - Water PoUutioa 

Example 1 

(a) Any person who negligently: 

(1) violates [section 1311 (effiuent limitations), 1312 (water quality related 

effluent limitations), 1313 (water quality standards and state implementation plans), 1316 

(national categorical standards of performance), 1317 (toxic or pretreatment standards), 

1318 (record·kceping requm~ments), 1321(b)(3) (discharges of oil or hazardous substances), 

1328 (aquaculture projects) or 1345 (disposal of sewage sludge) of the federal Clean Water 

Act and/or the state-delegated statutory equivalentt], or any permit condition or limitation 

implementing any of such sections in a permit issued by the Administrator of the U.S. 

E.nvironmental Protection Agency under [section 1342 (NPDES) of the federal act] or by 

[the direct'lr of the state water pollution control agency] under [the state SPDES statutory 

equivalent]. or any requirement imposed in a pretreatment program approved under 

[section 1342(a)(3) or 1342(b)(8) of the federal act and/or the state-deltg.'i.ted statutory 

equivalent] or in a permit issued by the U.S. Seaetmy of the Army under [section 1344 

(dredged or fill material) of the federal act] or by [the director of the 5tate water pollution 

control agency] under [the state-delegated statutory equivalent]; or 

(2) introduces into a sewer system or into a publicly owned treatment works 

any pollutant or hazardous substance which such person knew or reasonably should have 

known could cause personal injury or property damage or, other than in compliance with 

all applicable federal, state, or local requirements or permits, which causes such tre&.tment 

works to violate any effluent limitation or condition in any permit issued to the treatment 

works by the Administrator of the U.S. Environmental Protection Agency under [section 

1342 of the federal act] or by [the director of the stQte water pollution rontrol agency] 

under [the state-delegated pretreatment program statutory equivalent], 

shall be guilty of [define crime and punishment]. 

(b) Any person who knowingly commits any of the violations set forth in subsection 

(a) of this section shall be guilty of [define crime and punishment]. 

(c) Any person who knowingly violates [sections. 1311, 1312, 1313, 1316, 1317, 1318, 

1321(b)(3), 1328, or 1345 of the federal Clean Water Act and/or the state-4elegated 

statutory equivalents], or any permit condition or limitation implementing any of such 

sections in a permit issued by the Administrator of the U.S. Environmental Protection 

Agency under [section 1342 of the federal act] or by [the director of the state water 

pollution control agency] under [the state-delegated statutory equivalent], 0:: in a permit 

Appendix C 105 
----;-----------------------------------

In general (cont.) 

issued by the U.S. Secretary of the Army under [section 1344 of the federal act] or by [the 

director of the state water pollution OOJAtrol agency] under [the state-delegated statutory 

equivalent], and who knows at that time that he or she thereby places another person in 

imminent danger of death or serious bodily injury, shall be guilty of [define crime and 

punishment]. 

Derived from FEDERAL (aean Water Act), 33 U.S.c. Sec. 1319(c), which punishes 

a violation of subsection (a) as a 1-year/maximum misdemeanor (with doubled 

maximum penalties for subsequent convictions); a violation of subsection (b) as a 3-

year/maximum felony (with doubled maximum penalties for subsequent convictions); 

and a violation of subsection (c) as a 15ayear/maximum felony, including a 

$1,000,000 maximum fine for corporations (with doubled maximum penalties for 

subsequent convictions). 

1...6 Local Prosecution of Environmental Crime 

----------------------.----
----~~------.----------------------------

.,. 

Air Pollution 

In general 

Example 1 

(a) Any person who knowingly violates any requirement or prohibition of the 

implementation plan provided for in [the section estabJisbing a state implementation plan] 

or of any order, requirement or prohibition of section 7411 [relating to new source 

performance standards], section 7412 [relating to NESHAPs], secdon 7414 [relating to 

inspections, access, etc.], section 7429 [relating to solid waste combustion], or section 7475 

[relating to preconsuuction requirements], or of any order under section 7477 [relating to 

pre construction requirements] or section 303 of title m [relating to emergency orders], or 

of section 502(a) or 503(c) of title V [relating to permits], or any requirement or prohibition 

of title IV [relating to acid deposition control] or title VI [relating to stratospheric ozone 

control] of the federal Clean Air Act, including any requirement of a rule, order, waiver, 

or permit promulgated or approved under such sections or titles, and including any 

requirement for the payment of any fee owed to [the state] under such act (other than title 

IT) shall be guilty of [define crime and punishment]. 

(b) Any person who knowingly fails to pay any fel! owed to [the state] under [the 

state air pollution control laws] shall be guilty of [define crime and punishment]. 

( c) Any person who negligently releases into the ambient air any hazardous air 

pollutant listed pursuant to section 7412 of the federal Clean Air Act or [the section of 

state law defining hazardous air pollutants], or any extremely hazardous substance listed 

pursuant to section 302(a)(2) of the federal Superfund Amendments and Reauthorization 

Act of 1986 (42 U.S.c. llOO2(a)(2» or [the section of state law defining extremely 

hazardous air pollutants], and who at that time negligently places another person in 

imminent danger of death or serious bodily injury, shall be guilty of [define crime and 

punishment]. 

(d) Any person who knowingly releases into the ambient air any hazardous air 

pollutant listed pursuant to section 7412 of the federal Clean Air Act or [the section of 

state law defining hazardous air pollutants], or any extremely hazardous substance listed 

pursuant to section 302(a)(2) of the federal Superfund Amendments and Reauthorization 

Act of 1986 (42 U.S.C. llOO2(a)(2» or [the section of state law defining extremely 

hazardous air pollutants], and who knows at that time that he or she thereby places another 

person in imminent danger of death or serious bodily injury, shall be guilty of [define crime 

and punishment]. For any air pollutant for which the administrator of the U.S. 

Environmental Protection Agency has set an emissions standard or for any source for which 

a permit has been issued under title V of the federal Oean Air Act or [the se(.1ion of state 

law providing for air pollution control permits], a release of such pollutant in accordance 

with that standard or permit shall not constitute a violation of this subsection or subsection 

( c) of this section. 

Appendix C 107 

I 
- - In general (cont.) 

Derived from FEDERAL (Oean Air Act), 42 U.S.C. Sec. 7413(c), which punishes 

a violation of subsection (a) as a S-year/maximum felony (with doubled maximum 

penalties for subsequent convictions); a violation of subsection (b) as a 1-

year/maximum misdemeanor (with doubled maximum penalties for subsequent 

convictions); a violation of subsection (c) as a I-year/maximum misdemeanor (with 

doubled maximum penalties for subsequent convictions); and a violation of 

subsection (d) as a IS-year/maximum felony including a $1,000,000 maximum fine 

for corporations (with doubled maximum penalties for subsequent convictions). 

108 local Prosecution of Environmental Crime 
~-----.---------------------------------

Medical aDd infectious waste 

Example 1 

(a) Any person who knowingly violates the requirements of [the state laws regulating 

medical waste] or any regulations thereunder shall be guilty of [define crime and 

punishment1. 

(b) Any person who knowingly: 

(1) omits material information or makes any false material statement or 

representation in any labe~ record, report, or other document filed, maintained, or used for 

purposes of compliance with such laws or any regulation thereunder; or 

(2) generates, stores, treats, transports, disposes of, or otheIWise handles any 

medical waste, and knowingly destroys, alters, conceals, or fails to file any record, report, 

or other document required to be maintained or filed for the purposes of compliance with 

such laws or any regulation thereunder, 

. shall be guilty of [define crime and punishment]. 

(c) Any person who knowingly violates any provision of subsection (a) or (b) of this 

section and who knows at that time that he or she thereby places another person in 

imminent danger of death or serious bodily injury, shall be guilty of [define crime and 

punishment]. 

Derived from FEDERAL (Medical Waste Tracking Act), 42 U.S.c. Sec. 6992(d), 

which punishes a violation of subsection (a) as a S-year/maximum felony (with 

doubled maximum penalties for subsequent convictions); a violation of subsection 

(b) as a 2-year /maximum felony (with doubled maximum penalties for subsequent 

convictions); and a violation of subsection (c) as a IS-year/maximum felony, 

including a 51,000,000 maximum fine for corporations. 

Appendix C lC9 
Pesticides 

Example 1 

(a) Any registrant, applicant for registration, or producer who knowingly violates 

any provision of [the state laws regulating pesticides] shall be guilty of [define crime and 

punishment]. 

(b) Any commercial applicator of a restricted use pesticide, or any other person 

not described in subsection (a) of this section, who distributes or sellii pesticides or devices 

and who knowingly violates any provision of such laws, shall be guilty of [define crime and 

punishment]. 

(c) Any private applicator or other person not included in subsection (a) of this 

section who knowingly violates any provision of [the state laws regulating pesticides] shall 

be guilty of [define crime and punishment]. 

Derived from FEDERAL (FIFRA), 7 U.S.C. Sec. 136I(b), which punishes a violation 

of subsection (a) or (b) as a t-year/maximum misdemeanor, including a $200,000 

maxitnum fine for corporations; and a violation of subsection (c) as a 30-

day/maximum misdemeanor . 

.Example 2 

(a) Any person who violates any provision of [the state laws regulating pesticides], 

or any rule or regulation thereunder, shall be guilty of ·[define crime and punishment]. 

(b) Any person who negligently, knowingly or intentionally commits a violation of 

subsection (a) of this section, and thereby creates or reasonably could create a hazard to 

human health or the environment, shall be guilty of [define crime and punishment]. 

Derived from CALIFORNIA, Sec. 12996, which punishes a violation as a 6-

month/maximum misdemeanor (with doubled maximum fine for subsequent 

violations). 

110 Local Prosecution of EnVironmental Crime 

I 
Asbestos 

Example 1 

Any person who enters into, engages in, or works at the business of removal, 

containment or encapsulation of asbestos or materials containing asbestos, involving any 

building or structure, including those owned or leased by the state or any of its political 

subdivisions or authorities, without a license therefor issued by [the commissioner of the 

state environmental regulatory agen,),], or in violation of any provision of such license or 

of [the state laws regulating asbestos], shall be guilty of [define crime and punishment]. 

Derived from M.A.."iSACHUSETIS, Ch. 149 Sees. 6B and 6F, which punish a 

violation as a fine-only crime. 

Example 2 

(a) Any person who knowingly violates any provision of [the state laws regulating 

asbestos] or any rule, regulation, standard or order thereunder, shall be guilty of [define 

crime and punishment]. 

(b) [1be state environmental regulatory agency] may suspend, deny, or revoke the 

accreditation of, or reprimand, any person who: 

(1) fraudulently or deceptively obtains or attempts to obtain accreditation; 

(2) fails to meet the qualifications for accreditation or to comply with [the 

state laws regulating asbestos], or any rule, regulation, standard or order thereunder; or 

(3) fails to meet any applicable federal or state standard for activities 

involving asbestos. 

Derived from MONTANA, Sec. 75-2-514, which punishes a violation as a 6-

month/maximum misdemeanor. 

.U.S. G.P.O.:1993-342-500:80014 AppendlxC 111 
.~ i .Jt I 

... . , 

{;:S. Department of Justice 

Office of Justice Programs 

Natiollallnstitute of Justice 

Washingtoll, D.C. 2053 J 

Oftlcial Business 

Penalty for Private Uw $300 

BULK RATE 

POSTAOE& FEES PAID 

DOJ{NIJ 

Permit No. 0-91