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Evolution Of Criminal Environmental Enforcement

Edward Bonanno, Supervising Attorney General, New Jersey Division of Criminal Justice

Since the states and federal government first began prosecuting environmental crimes more than 25 years ago, the nature of the cases they have investigated and prosecuted has changed dramatically. In the early years of criminal enforcement, prosecutors used then recently enacted criminal statutes to deal with blatant criminal conduct, such as midnight dumping of toxic waste drums. Over the past 25 years, the states and Congress have enacted tougher, more comprehensive environmental crimes statutes and devoted greater resources to fighting environmental crime. Those efforts, coupled with civil enforcement efforts and the general industry acceptance of, and compliance with the comprehensive environmental regulatory strictures put in place, have, to a very large degree, eliminated most of the blatant dumping activity that was so pervasive in many areas in the late 1970s, 1980s and 1990s.

Now, those who want to avoid complying with the law, either out of greed or sheer laziness, often employ more sophisticated or discreet methods. Some falsify documents to conceal their failure to comply with the requirements of our environmental laws, while others store hazardous/toxic materials in ways that endanger workers and the surrounding community. Moreover, as the demands on our land and water resources increase, more companies and individuals are taking actions that violate statutory and regulatory requirements for land use and for safe drinking water. With greater development and redevelopment pressures, there is also more incentive for contractors, consultants and truckers to improperly handle the removal and disposal of debris, both non-hazardous and contaminated, from old commercial sites.

This article examines those types of conduct that are now and will be of greatest concern to state and federal environmental prosecutors. It will also examine some significant legislative developments in New Jersey that reflect the evolution of criminal environmental enforcement and ways that criminal enforcement can creatively use resources to combat environmental crimes.

Trends in Enforcement

Environmental Fraud

Many of those who are inclined to violate or evade our environmental laws will do so by engaging in schemes to falsify documents to conceal their misconduct. Criminal enforcement in this area has become a priority for the United States Department of Justice, Environmental Crimes Section (USDOJ), and for some states, including New Jersey. In order to combat this fraudulent criminal conduct, which may conceal significant past, ongoing, or potential environmental problems, federal and state prosecutors are now using their racketeering, civil forfeiture and money laundering statutes, as well as traditional non-environmental crimes, such as fraud and forgery.

As many environmental programs rely, to a large degree, on the honesty of those submitting information to them. The unscrupulous often attempt to exploit the trust given them. State and federal environmental regulations in virtually every media or program require regulated facilities to submit or file information with the regulatory agencies and to maintain certain types of records. As few regulatory agencies have the ability or resources to closely examine and check all the information they receive, those inclined to violate the law may feel they have a golden opportunity to profit by neither misstating to the regulatory agency that they have addressed a problem when they have not, or denying that there is a problem and then literally paving it over. In order to preserve the integrity of the system, it is vital that prosecutors investigate and prosecute those who engage in such activity in order to send a strong, specific and general deterrence message.

In New Jersey, state prosecutors charged a subcontractor at a state bridge construction project with government contract fraud for submitting weigh tickets and bills of lading that falsely stated that contaminated soils had been properly disposed of, when that was not in fact the case.1 State prosecutors also prosecuted the managers of a large community water treatment system for submitting to the State Department of Environmental Protection (DEP) analysis of drinking water samples that did not accurately reflect the sources of the water tested for radionuclides.2

Community/Workplace Safety

All too frequently, facilities located in densely populated urban areas, or other communities, operate in a manner that endangers the surrounding area. Such facilities may arguably not have hazardous waste on site and, consequently, may not be subject to Resource Conservation Recovery Act (RCRA) or other environmental statutes, such as the Clean Air or Clean Water Act, which contain reckless endangerment provisions.3 New Jersey and some other states, however, have reckless endangerment type statutes that allow state prosecutors to prosecute those who risk injuring people in the facility or the surrounding community.4 In New Jersey, the state prosecuted a company for negligently exposing its workers to methyl bromide gas during a fumigation of a warehouse, which resulted in injuries to workers.5 They also prosecuted the owner of a child care center for disregarding a report indicating elevated lead levels and for continuing to operate the center so as to expose the children to unsafe lead levels.6

In United States v. Atlantic States Cast Iron Pipe Co., et al, federal environmental prosecutors successfully pursued Atlantic States, a cast iron pipe manufacturer in Philipsburg, New Jersey, a division of McWane Inc., and four of its supervisors, for engaging in a conspiracy to expose employees to dangerous conditions, to pollute the air and water and to impede federal regulatory and criminal investigators.7 In 2005 and 2006, federal prosecutors also successfully pursued four other McWane divisions and their employees for environmental and health and safety violations at facilities in Utah, Texas and Alabama.

Urban Dumping

As old commercial and industrial areas are redeveloped in cities, and as costs associated with the transportation and disposal of solid waste continue to rise, there are greater incentives for contractors to improperly dispose of debris, contaminated soils and asbestos from such sites. In 2004, New Jersey enacted a Solid Waste Crimes8 law to enhance prosecutors’ ability to combat this type of conduct. Using this new law, New Jersey state prosecutors have charged a number of individuals with unlawfully disposing of large quantities of demolition debris in open urban areas in Jersey City, Paterson and Newark.9 Successful prosecution of these violators has substantially reduced large scale dumping activities in these cities.

Legislative Developments

In addition to enacting the Solid Waste Crimes Law in 2004, New Jersey has several new provisions that greatly expand the legal tools available to state environmental prosecutors. In 2007, New Jersey eliminated the statute of limitations for hazardous waste, medical waste, air pollution, asbestos abatement and water pollution crimes.10 Prior to this revision, a prosecution had to be commenced within 10 years of the date of discovery by government officials.11 In 2008, the state created new criminal provisions in the Waterfront Development Act, Water Supply Management Act, Coastal Area Facility Review Act, Flood Hazard Area Control Act, Safe Drinking Water Act, Wetlands Act, Pesticides Control Act, and Endangered and Nongame Species Conservation Act.12 Under these new provisions, a person can be prosecuted for purposely, knowingly or recklessly violating any of the provisions of these Acts, or their underlying regulations or for purposely, knowingly or recklessly making false statements in documents required to be maintained or submitted pursuant to these Acts. With these new laws, state prosecutors can begin to address unlawful conduct relating to land and water use at a time when development pressures are putting a greater strain on these resources.

Community Environmental Policing

Community or neighborhood policing involves sharing responsibility for policing with community members for identifying and responding to problems, eliminating those problems and preventing them from occurring again.13 Common characteristics of effective community policing initiatives have included better communication between police and the public, new types of information exchange, increased responsiveness to citizen concerns and increased trust between citizens and police.14 Budget constraints, limits on the omniscience of the state, and a growing diversity of environmental hazards have prompted the consideration of community participation in pollution monitoring.15

One example of community participation in environmental/pollution monitoring is the “bucket brigade” program, which involves distributing sample containers to citizens so they may obtain air samples around industrial facilities. “Bucket brigades” are usually initiated by community members who work with non-government organizations.16 Governmental agencies have also provided some support for these programs.17 “Bucket brigades,” which can function as a sophisticated neighborhood watch, have provided more information and data to governmental agencies and have increased public awareness of chemical and health hazards.18

Community environmental policing would involve citizens working closely with law enforcement to monitor specific areas or facilities for possible environmental violations. These citizens would be “eyes, ears and noses” for law enforcement. This would allow law enforcement to have a greater presence in areas threatened by pollution. With community environmental policing, law enforcement would work with community and environmental groups to identify potential environmental and health concerns and to then develop strategies for monitoring and detecting any problems. Law enforcement would train group members on what to look for and how to promptly report any pollution incidents to authorities. The training would make it clear to volunteers that they should not go into private property and that they should avoid any confrontations. Law enforcement would work with community and environmental groups to ensure that they select volunteers who are best suited for doing this type of work.

Community environmental policing can greatly increase the information that law enforcement receives. This will enhance the ability of law enforcement officials to identify and prosecute violators and to prevent a serious environmental/public health incident from occurring. In an era of reduced governmental resources, community environmental policing will allow law enforcement to maintain and even expand its presence.

In criminal environmental enforcement, the types of issues confronting law enforcement have changed significantly from the early years. The enactment of new laws, as well as the creative use of existing and new resources, through initiatives such as community environmental policing, will allow law enforcement to respond to new challenges.

The author, Edward Bonanno is currently a Supervising Deputy Attorney General in the New Jersey Division of Criminal Justice handling environmental crimes investigations and prosecutions, which he has done since 1988. He is a member of the Northeast Environmental Enforcement Project and has provided training for that group as well as for the National Association of Attorneys General, and for state, county and local law enforcement and environmental officials.

[1]State v. James E. Haas, Indictment No. 07-08-00112-S (N.J. Sup. Ct. Law Div. 2007)

[2]State v. Ottens and Flegal, Indictment No. 06-06-0070-S (N.J. Sup. Ct. Law Div. 2006) (on appeal with respect to Defendant’s admission into diversionary program)

[3]42 U.S.C.A. ss. 6928(d),(e),(f) (2008); 33 U.S.C.A. ss. 1319(c)(3) (2008); 42 U.S.C.A. ss. 7413 (c)(5)(A) (2008).

[4]See N.J.S.A. 2C:17-2d,e, (2008)

[5]State v. Terminex, Complaint No. S172043, (N.J. Sup. Ct. Law Div. 2006)

[6]State v. Biddle, Accusation No. 08-06-00517 (N.J. Sup. Ct. Law Div. 2008)

[7]Criminal No. 03-852 (2006)

[8]N.J.S.A. 13:1E-9.6, (2008)

[9]State v. Mercado & Torres, Accusation Nos. 429, 430-08 (N.J. Sup. Ct. Law Div. 2008); State v. Cordell Nesbitt, Indictment No. 05-08-001310-S (N.J. Sup. Ct. Law Div. 2006); State v. Andrey Milner, Indictment No. 05-06-00098-S (N.J. Sup. Ct. Law Div. 2006); State v. Elton Williams, Indictment No. 04-04-0057-S (N.J. Sup. Ct. Law Div. 2004)

[10]N.J.S.A. 2C:1-6, N.J. STAT. ANN. ss 2C:1-6 (2008)

[11]N.J.S.A. 2C:1-6, Id.

[12]Waterfront Development Act (N.J.S.A. 13:9A-1 et seq.); Water Supply Management Act (N.J.S.A. 58:1A-1 et seq.); Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.); Flood Hazard Area Control Act (N.J.S.A. 58:16A-1 et seq.)Safe Drinking Water Act (N.J.S.A. 58:12A-1 et seq.); Wetlands Act (N.J.S.A. 13:9A-1 et seq.);Pesticides Control Act (N.J.S.A. 13:1F-1 et seq.); and Endangered and Non-Game Species Conservation Act (N.J.S.A. 23:2A-1 et seq.).

[13]Dara O’Rourke and Gregg P. Macey, Community Environmental Policing: Assessing New Strategies of Public Participation in Environmental Regulation, Journal of Policy Analysis and Management, Vol. 22, No. 3 pgs. 383, 386 (2003); Dan Fleissner and Fred Heinzelmann, Crime Prevention through Environmental Design and Community Policing, National Institute of Justice Research in Action (August 1996).

[14]O’Rourke and Macey, supra. at 387

[15]O’Rourke and Macey, supra. at 384

[16]O’Rourke and Macey, supra. at 388

[17]O’Rourke and Macey, supra. at 390

[18]O’Rourke and Macey, supra. at 399, 405

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