CRIMINAL PROSECUTION IN ENVIRONMENTAL MATTERS - THE STATE PERSPECTIVE

James H. Lynch

Senior Environmental Investigator, Indiana Department of Environmental Management, Indianapolis, Indiana

Summary

This paper provides a state perspective on criminal prosecution in environmental matters as well as practical advice on how to operate a successful criminal enforcement program and bring successful criminal prosecutions within the larger context of environmental management agencies. It gives an introductory perspective in historical terms of issues in criminal enforcement for environmental protection, in particular, the legislative evolution of the Indiana Department of Environmental Management's criminal enforcement program. The Office of Environmental Investigations is reviewed in terms of its statutory basis, the rationale for 'criminal investigations', and the conduct of proper investigations. In order to understand the work of the Office, the paper provides an overview of what is Being Enforced. It then goes on to describe the investigative methodology and complexities, the added dimension to traditional investigations, and new issues related to safety, costs and access to sites.

Finally, the paper explores the investigator - prosecutor relationship, and how targets are selected.

1.0 An Introductory Perspective

"I have seen the enemy, and he is me." I'm not sure who said that, that that it's important. What is important is that we recognize (and accept) that as a society, serious, often life-threatening environmental issues confront us NOW!

Throughout history, until very recently, the management of hazardous (industrial) chemicals and their hazardous waste byproducts have been primarily left to the hands of those people in industry (and government) who handled it. The simple rationale being, who better to deal with it than those who know the most about it.

Time has borne out the fact that those who handle it, and often regularly, in many many instances don't know (or care) how to PROPERLY manage and dispose of hazardous materials and hazardous wastes. This ignorance and/or callousness has led us to catastrophes such as the Love Canal (New York) where hundreds have been evacuated from their homes 'forever' and often with life-threatening illnesses. Times Beach (Missouri), where an entire town has been evacuated and fenced off presumably 'forever,' due to contamination. Seymour (Indiana) Recycling where thousands upon thousands of drums of hazardous waste were improperly managed until an environmental disaster occurred. The list goes on, and the issue facing us is, how long can we continue to allow this?

2.0 The Indiana Department of Environmental Management

The Legislature enacted into existence in 1985 (P.L. 143-1985, Sec. 96), the Indiana Department of Environmental Management (IDEM). A question might be asked, "why?" Environmental matters had, up until that time, been handled by personnel from the Indiana State Board of Health, and separate "boards" overseeing policy. There was, however, no cohesiveness in an overall environmental "management" sense. Additionally, federal regulations, having impact on the states, needed research, policy decision-making, investigation, and enforcement. Federal and state law(s), some in existence for a long time, would/could no longer be ignored and taken for granted.

2.1 The Office of Environmental Investigations

Included in the creation of the IDEM, is a specific criteria that there be "an office to conduct investigations" (IC 13-7-2-13(a)(5)). The Office of Environmental Investigations (OEI) is tasked with conducting 'criminal' investigations of state and federal environmental laws. Another question asked may be, "why criminal investigations? What's wrong with the traditional civil investigations and enforcement historically conducted?" First, there is nothing wrong with those 'traditional' civil efforts. There is a necessity for their continuance, and a place for their application. There is, however, cited specifically in Title 13 of Indiana's statutory law (IC 13-7-13-3 and IC 13-7-13-4) provisions that make certain violations Class D felonies or Class B misdemeanors.

Proper investigations, including application and understanding of 'criminal law,' and the criminal justice system is, rationally speaking, better done by competently trained and experienced police investigators. All investigators within the OEI are trained, experienced investigators.

2.2 What is being enforced?

As previously cited, Title 13 is included within the body of Indiana statutory law. Title 13 is simply, "the Environment." Primarily, Title 13 addresses air, water, and solid and hazardous waste. Additionally, there are subparts that deal with surface mining, interstate agreements, soil and water conservation, minerals, and legal actions.

Article 7 of Title 13 addresses "Environmental Management." Specifically, IC 13-7-4-1 (long overlooked) is "Acts Prohibited." From a law enforcement and prosecution perspective, it's a good place to start to understand and apply basic (enforcement) protection to our environment.

Title 13 addresses the 'general' perspective to our environment. Specific (technical) enforcement is accomplished through enforcement of the Indiana Administrative Code (IAC). The 1988 Indiana Legislature recodified the IAC. Title 326 addresses "air", Title 327 addresses "water", and Title 329 addresses "hazardous waste." There are other 'titles' in the code that may apply in some situations, but generally, 'criminal' enforcement will be from within these three. As per IC 13-7-13-3 violation(s) of "…any rule or standard adopted…" are criminal violations.

2.3 Investigative methodology and complexities

Traditional police investigative techniques are standard in environmental 'crimes.' However, there is added a dimension of knowledge, techniques ,and safety not generally associated with police investigations. First, the knowledge and understanding of environmental law and regulations cases only after study, training, and research by investigators. Next, special techniques surrounding a 'crime scene' that may be (or likely is) handling of evidence (including sampes of contaminants), that are dangerous to health and safety are realities.

Laboratory analysis of 'evidence' is NOT done through police laboratories who are accustomed to 'handling evidence' with very stringent consideration of chain of custody, etc. Contract laboratories must be made aware of their now 'heightened' role in this scenario. Clearly defined and articulated standards MUST be adhered to. Quality control/assurance of samples (evidence) is an absolute must.

Finally, the issue of personal safety cannot be understated. Working in a toxic atmosphere, collecting (or directing the collection of) evidence is critical. Some chemicals are so lethal that the mere inhalation can be fatal. For investigators and others involved in an investigation, understanding their role, capabilities, and limitations is NOT an area for doubt or confusion.

A brief mention of cost is necessary. Conducting environmental investigations can be, and usually is, very costly. Private contractors and laboratory work is very expensive. Local, state, and federal resources (and options) should be considered. Most county prosecutors budgets could not sustain a major environmental investigation. IDEM investigators are familiar with costs associated with these types of investigations.

Another issue that is traditional but offers some variations is access to 'sites.' Often times the 'crime scene' is a site on private property involving some implied responsibility of the property owner. The property owner may also be a victim (e.g., illegal dumping), but may incur some liabilities. The law in this area is very complex, and could affect access to a site. Development of probable cause early is an issue that cannot be overlooked in an investigation, since access permission may or may not be granted. While access is being 'debated', evidence could come up missing or gone. Proper 'control' of a site, sometimes even before entry, is very important.

3.0 Investigator - Prosecutor Perspective

A reasonably assumed premise is that environmental crimes investigation and enforcement is both relatively new and very complex. As with any comparable situation, early and effective communication between the prosecutor and the investigator is very important. The investigator should be reasonably able to advise the prosecutor (fairly early on) what he (or she) perceives the 'case' is about and where it will likely go. The investigator should be prepared to give 'timely' updates on the status of the investigation to the prosecutor. There should be discussion and research of issues and likely charges filed (depending on the complexity of the case), before the preparation of probable cause and obtaining arrest and/or search warrants.

4.0 Selecting a "Target"

Selecting a target or subject for criminal investigation is not always an easy task. Many factors must be considered during the pre-investigation assessment. First and foremost is the issue of "are there perceived violations of either state or federal environmental law?" If so, to what degree or magnitude? Another consideration is the statute of limitations. Since for environmental crimes, there is a five (5) year limitation to deal with, consideration of not only when did the crime occur, but how soon can it be filled must be assessed.

Another factor is the prior history of the potential target. Sometimes past noncompliance issues (civil) become relevant. Another consideration is the knowledge and effort to comply with environmental standards by the potential target. Sometimes, obvious blatant disregard could be a factor in assessing a 'situation.'

Interction and discussion among 'regulators (civil) and investigators (criminal)' is important. These types of investigations are generally too complex for an investigator to proceed without input from the regulatory community. Discussion of the issues, and a proper evaluation of individual, municipal, state and/or federal government concerns and priorities, before reaching any conclusions or recommendations, should occur. Many times these investigations will proceed in a 'team' approach, for best results.

Lastly is the acceptance of the case by the prosecutor. Investigators are charged to ensure the information they bring before a prosecutor meets the 'standardss' necessary for the furtherance of a criminal investigation. Since the criminal justice system is already overburdened, presentation and prosecution of environmental crimes must be judicious, yet aggressive.

5.0 A Closing Analogy

Visualize the 'Scales of Justice." On one side is a traditionally perceived 'criminal', a burglar. On the other side is an environmental criminal. One forced entry into your home and stole your television while you were gone, a property crime for which you will either get your TV back or replaced by your insurance. The other, however, dumped a chemical waste that got into your drinking water, and you didn't know it. The waste likely may be harmful to you and your family's health. If the latter 'act' was done intentionally, knowingly, recklessly, or negligently, I submit to you, which act is really criminal?

Historically, the burglar goes to jail, and the environmental criminal goes uninvestigated and unprosecuted. People are dying TODAY in our state and in our country. It's time!!