textfiles/law/prosecut.law

April 1991                                                        

                                                                  
                 ENVIRONMENTAL CRIMES PROSECUTION:  
                   A LAW ENFORCEMENT PARTNERSHIP  

                                By

                       Vincent A. Matulewich                                
                   Supervisory State Investigator
                  Environmental Prosecutions Bureau
               New Jersey Division of Criminal Justice
                                                   
                                                                  
     On a cold, rainy Sunday, a railroad police patrol
discovered a large pile of abandoned drums along a dirt access
road near the tracks of a major metropolitan commuter line.
Upon closer inspection, the officers noted that many of the
drums were leaking and that the air had a chemical odor.  Soon,
they became lightheaded, but were able to return to their patrol
vehicle to call the local municipal police department for
assistance.

     After arriving on the scene, the local police officers,
seeing the condition of the other officers, called in
reinforcements.  Shortly thereafter, the local health officer,
supported by the fire and rescue squads, arrived at the scene. A
decision was then made to notify the county and State agencies.
Later, the county health department's emergency response unit
arrived, followed by the State police's emergency management
coordinator and the State's department of environmental
protection/hazardous materials incident team.

     By this time, several hundred people, dressed in every
conceivable type of protective clothing, were milling around an
impromptu command post.  As a portion of the contaminated area
near the tracks was evacuated, and the decision to shut down the
commuter railroad was made, the television news crew arrived.
When all was said and done, it was estimated that the cleanup
would cost approximately $100,000.

     Reaction to this hypothetical dumping incident would depend
on when it took place.  If it occurred prior to Earth Day, April
21, 1970, most likely nothing would have happened.  The drums of
chemicals would have been allowed to ooze into the ground and
contaminate the water supply.  If it occurred during the 1970s
or early 1980s, someone would pay for the cleanup, and in this
case, it would be the railroad, since they owned the property
where the drums of chemicals were found.  The railroad, after
cleaning up the site, would probably pass along the cost to the
public in the form of a fare increase.

     Today, however, if this incident occurred, the municipal
police department would most likely request assistance from one
or more law enforcement agencies to process the abandoned drum
site as a crime scene before having the hazardous chemicals
removed.  The involved agencies would also conduct an
investigation to determine who was responsible for the act and
criminally prosecute the violators.

ENFORCEMENT HISTORY

     Today, the United States produces approximately 125 billion
pounds of hazardous waste annually. (1)  Because many of the
environmental crimes prosecuted now were considered
environmentally acceptable acts 30 years ago, hazardous waste
has become a dangerous legacy that can no longer be overlooked.
(2)  Toxic and hazardous waste from approximately 15,000
municipal and 75,000 industrial landfills has contaminated
public and private water supplies throughout the country. (3)
And, if left undiscovered, this contaminated water can cause
cancer, birth defects, and genetic changes, as well as a variety
of other disorders.

     Eventually, in response to public pressure resulting from
events such as the Love Canal, where chemical wastes produced
and disposed of during World War II seeped into the homes of
local residents, the Federal Government began to attack the
problem of improper chemical disposal practices in two ways:  1)
Preventing further chemical contamination; and 2) dealing with
existing chemical waste.

     To prevent new hazardous waste sites from being created, in
1976, Congress enacted the Resource Conservation and Recovery
Act (RCRA).  RCRA sought to provide "cradle-to-the-grave"
management of newly created hazardous wastes by imposing a set
of regulations and a manifest system not only on the generators
of hazardous wastes but also on the transporters and disposers
of such chemicals.  Under this act, treatment, storage, or
disposal of hazardous wastes at any other place but an
authorized facility is illegal.  Violators are subject to civil
penalties of $25,000 per day of continued noncompliance, and
persons convicted of violations are subject to criminal
penalties of up to $50,000 for each day of violation and
imprisonment for a maximum of 5 years. (4)

     To handle existing hazardous waste sites, Congress, in
1980, passed the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA), commonly known as the
"Superfund Act." This act established a $1.6 billion fund to be
used for, among other things, the clean up of abandoned
hazardous waste sites. (5)

     Also, during the 1980s, various States enacted criminal 
sanctions for both knowing or reckless conduct involving the 
illegal disposal or abandonment of toxic or hazardous wastes.  
Now, in addition to similar fines imposed by the RCRA, States 
could impose terms of imprisonment for up to 10 years.            

SCOPE OF THE PROBLEM

     Historically, private industry has not played a leadership
role in protecting the environment and is still reluctant to
take environmental precautions unless it views overwhelming
scientific evidence that demonstrates that the expenditure of
funds is necessary.  Despite this reluctance, most large
corporations operate according to environmental regulations;
however, there are others willing to break the law in order to
save or make money.

     Prior to the RCRA, the cost of disposing a 55-gallon drum
of hazardous waste cost $3 to $5.  Today, disposing legally that
same waste costs $300 to $500.  For some hazardous chemicals,
this cost could be in excess of $1,500 per drum.  Larger
corporations simply pass this added cost onto the consumer, but
smaller, marginal companies oftentimes may need to cut corners
to save money. As a result, it is usually marginally
competitive, smaller companies, or facilities hired by them,
that illegally dump hazardous waste. (6)

LAW ENFORCEMENT'S ROLE

     In the early 1980s, only Louisiana, Maryland, Michigan, New
Jersey, New York, and Pennsylvania employed specialized units to
deal with environmental crimes on a full-time basis.  In all,
this amounted to a few dozen overworked criminal investigators
who were charged with developing investigative methods and
procedures where none previously existed.  To make matters more
complicated, these investigators were "forced to work with," and
at times rely upon, non-law enforcement agencies as their
evidence collection teams and for records of those who
generated, transported, and/or disposed of hazardous waste. (7)

     Today, through problem awareness and investigative methods
training, 29 States now have environmental crimes units at the
State law enforcement level. (8) In addition, over 1,000 police
officers and investigators have attended investigative training
programs. (9)  This remarkable improvement in such a short time
is directly attributed to law enforcement's perceived necessity
of such teams and to public pressure.

The Municipal Police Department

     By nature, most municipal police departments do not have
the resources to devote themselves exclusively to investigating
environmental crimes.  However, municipal departments
acknowledge that the public it is charged to protect is acutely
aware of the dangers associated with hazardous chemicals.  As a
result, many have provided their patrol officers with problem
awareness training so that they may properly secure hazardous
areas from the public, and if possible, preserve the crime
scene.

     In most cases, for a municipal police department, dealing
with hazardous chemicals means calling on agencies that have the
capability and resources to control the situation.  Chemicals
found at any given site must be considered unknowns, and as
such, must only be approached by trained personnel.  Even so,
municipal departments can act as invaluable resources to
criminal investigators by providing informant information and by
"working" the community for suspect leads.

The County District Attorney's or Prosecutor's Office

     Due to limited resources, most county investigative
departments also do not actively investigate environmental
crimes.  However, some counties consider hazardous waste a major
public safety issue and actively pursue criminal violators.  In
some States, the local district attorney's or State attorney's
office is the only agency with the statutory authority to
prosecute criminal violations. (10)  This is especially true for
counties that have a large industry-based economy and a high
incidence of midnight dumping.

The State Police or State Attorney General's Office

     Most environmental crimes units that are attached to the
State police or the State attorney general's office are usually
better equipped logistically to deal with the mobile nature of
environmental violators who cross municipal and county lines. (11)
In addition, State agencies are also better able to conduct
long-term investigations leading to successful criminal
prosecutions. (12)

     Typically, State law enforcement agencies investigate and
prosecute violations, such as fraud within the hazardous waste
industry, illegal operation of hazardous waste facilities, and
the illegal storage and disposal of hazardous wastes.  In
addition to environmental crime laws, State agencies also
implement white-collar provisions of criminal codes and other
violations of the law, such as theft by deception, falsifying or
tampering with records, deceptive business practices,
maintaining a nuisance, official misconduct, obstruction of
justice, conspiracy, and manslaughter. (13)

State Regulatory Agencies

     Although State regulatory agencies are not considered law
enforcement agencies, they are an integral component to the
successful criminal investigation of environmental crimes.
These agencies maintain the "cradle-to-the-grave" manifest
system required for all transactions involving the generation,
transportation, and/or disposal of hazardous wastes.  In
addition, these agencies license and routinely inspect all
facilities associated with the generation and disposal of
hazardous waste.  Furthermore, as a component of their emergency
response duties, they also maintain specialized units that are
dispatched to collect sample evidence at the scene of midnight
dumpings or other situations where hazardous waste may affect
the public health.

The Federal Government

     In 1984, the U.S. Justice Department granted law
enforcement powers to 23 agents of the U.S. Environmental
Protection Agency (USEPA).  The agents are attached to USEPA's
National Enforcement Investigations Center (NEIC)/Office of
Criminal Investigation in Denver, Colorado, and operate out of
USEPA regional offices located throughout the country.
Currently, NEIC has 55 agents.

     With the passage of the "Pollution Prosecution Act of
1990," Congress has mandated that the number of criminal
investigators be no fewer than 200 by October 1, 1995.
Additionally, the USEPA has centralized the administration of
their special agents in Washington, D.C., within the Office of
Enforcement.  Even so, this number is far too low to respond to
emergencies or to conduct extended surveillance on suspected
dumpers.  Therefore, the USEPA is primarily directed toward
major, long-term investigations of national  significance,
assisting local  or  State  environmental crimes units with
technical support, and filling the void where no coverage is
provided at the local or State level. (14)

     The FBI has assisted the USEPA since 1981, and in 1986, 35
Special Agents from the FBI's White-Collar Crimes Section were
given the additional responsibility for investigating Federal
environmental crimes. (15)  Currently, the FBI is investigating
over 300 environmental crimes cases.

THE PARTNERSHIP

Background

     In 1980, in response to media and public pressure regarding
hazardous waste, the Attorneys General of the Northeastern
United States initiated the Northeast Hazardous Waste
Coordination Committee.  Originally comprised of 11 Northeastern
States, the committee later changed its name to the Northeast
Hazardous Waste Coordination Project (NEHWP) and expanded its
membership to 14 States.

     The primary purpose of the NEHWP is to: 1) Promote and
coordinate investigations among member States; 2) provide
technical assistance; 3) provide an information bank for all
public record 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 all levels of government.
Because of the unique relationship that must be maintained with
the State regulatory agencies, the project's membership is
composed both of representatives from State law enforcement and
regulatory agencies.  The project is funded by the participating
States and the USEPA/National Enforcement Investigations Center
(NEIC). (16)

     To meet national goals, the NEIC used the NEHWP as a model
to establish three other regional groups--The Midwest
Environmental Enforcement Association (previously known as the
Midwestern Hazardous Waste Association), the Western States
Hazardous Waste Enforcement Network and the Southern
Environmental Enforcement Network (previously known as the
Southern Hazardous Waste Project).  Today, 46 States and the
Province of Ontario, Canada, are members of these regional
groups.  The only States not participating in a regional group
are Kansas, Montana, Texas, and Wyoming.  The regional groups
changed their names to reflect the USEPA's shift from simply
hazardous waste enforcement to a multi-media approach to
environmental enforcement dealing with surface water, ground
water, pesticides, and air pollution. (17)

Training

     However, in order to maintain successful environmental
crimes programs, proper training is essential and must focus on
two specific groups:  1) Law enforcement agencies that require
only a subject awareness; and 2) law enforcement agencies that
are actively involved in environmental crimes investigations.
For the first group, training is limited to what environmental
crimes are and which agencies actively investigate such crimes.
Training for this group, which consists of representatives from
municipal or county police departments and health, fire, and
code inspectors, is usually limited to a 4- to 8-hour block of
instruction.  Such basic awareness programs, conducted by the
regional groups or the State's environmental crimes unit, have
enjoyed success throughout the Nation. These regional groups
have the combined capability to train approximately 1,000
individuals per year in various topics. (18)

     For those law enforcement and regulatory agencies involved
actively in environmental crimes investigations, training is
more in-depth and includes instruction in specific technical
skills.  For example, the NEHWP uses a two-step program that
includes 1 week of classroom instruction followed by a 3-day
practical exercise that details an environmental crimes case
from the initial response to the execution of a search warrant.
This practical exercise helps to expose the criminal
investigators and regulatory inspectors to each other's duties
and responsibilities. (19)

     In 1985, the USEPA perceived the need to develop a national
training program regarding hazardous waste investigations.  In
conjunction with the National Center for State and Local Law
Enforcement Training at the Federal Law Enforcement Training
Center (FLETC) in Glynco, Georgia, the NEHWP, and other State
agencies, the USEPA developed a 2-week program that addresses
criminal violations with regard to the handling, transportation,
and disposal of hazardous waste.  The program was developed for
investigative and regulatory personnel and stresses the
multidisciplinary approach to the investigation and prosecution
of violations. (20)

     The passage of the "Pollution Prevention Act of 1990"
required the USEPA to create a National Enforcement Training
Institute.  The emphasis of the institute will be to conduct
comprehensive criminal and civil environmental enforcement
training for Federal, State, and local personnel.

CONCLUSION

     Despite the efforts to increase awareness and to educate
law enforcement and related personnel to the significance and
dangers of environmental crimes, there are still municipal
departments and county and State agencies that have not
addressed the issue of environmental crimes.  Therefore, to
increase awareness among these groups, the FLETC and NEIC have
brought together the heads of State agencies that have
long-standing enforcement programs with their counterparts in
those States that have not adequately addressed the problem.
Even so, more specialized training programs are needed for those
environmental crimes investigators currently working in the
field.

     As law enforcement becomes more effective in dealing with
environmental offenders, offenders have become more adept at
avoiding detection.  To help meet this need, the regional groups
have developed investigative training courses that deal
specifically with the sophisticated dumper.  It is hoped that
through training and continued vigilance, law enforcement,
together with its partner agencies, can successfully rid the
Nation of those individuals who blatantly disregard the
importance of a safe, clean environment.


FOOTNOTES

      (1)  P. Miller, "Organized Crime's Involvement in the
Waste Hauling Industry," in A Report from Chairman Maurice D.
Hinchey to the New York State Assembly Environmental
Conservation Committee, July 24, 1986, p. 187.

      (2)  S. Wolf, "Hazardous Waste Trials and Tribulations,"
Environmental Law, vol. 13, No. 2, Winter 1983.

      (3)  Supra note 1.

      (4)  M. Leepson, "Toxic Substances Control," in
Environmental Issues:  Prospects and Problems (Washington, DC:
Editorial Research Reports, 1982), pp. 99-115.

      (5)  Ibid.                                                       

      (6)  A. Block and F. Scarpitti, Poisoning for Profit:  The
Mafia and Toxic Waste in America (New York:  William Morrow and
Co., 1985).

      (7)  D. Rebovich, Understanding Hazardous Waste Crime, the 
Northeast Hazardous Waste Project and the New Jersey Division of 
Criminal Justice, June 1986, p. 70, and the National Association 
of Attorneys General, State Attorneys General Guide to 
Environmental Law, Washington, DC, 1990, p. 174.                  

      (8)  Ibid.                                                       

      (9)  The Northeast Hazardous Waste Project, Annual Report, 
1987.                                                             

      (10)  "L.A. Sheriff Expanding Unique Hazardous Materials
Unit," Crime Control Digest, September 1, 1986, p. 10, and
personal communication with R. Honnicker, Assistant Prosecutor,
Monmouth County Prosecutor's Office.

      (11)  Supra note 7.                                              

      (12)  Supra note 7.                                               

      (13)  Supra note 7 and New Jersey Department of Law and
Public Safety, "Division of Criminal Justice Annual Activities,"
1986, p. 27.

      (14)  Third Conference of State Environmental Enforcement
Organization, National Association of Attorneys General and
NEIC.  Denver Federal Center, Denver, Colorado, January 23 and
24, 1991.

      (15)  Personal communication with Special Agent J. Molton,  
Federal Bureau of Investigation.                                  

      (16)  The Northeast Hazardous Waste Project, Five Year
Report: 1980-1985.

      (17)  C.G. Wills and C.W. Murray, Jr., "State Environmental 
Organizations," National Environmental Enforcement Journal, vol. 
4., No. 7, 1989, pp. 3-8.                                          

      (18)  Personal communication with M. Staub, Training Chair
for the Northeast Hazardous Waste Project.

      (19)  Ibid.                                                      

      (20)  J. Miller, "Hazardous Waste Investigative Training 
Program Feasibility Conference Notes," Federal Law Enforcement 
Training Center, Glynco, Georgia, 1985.