Environmental Enforcement
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Transcript of Environmental Enforcement
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Environmental EnforcementEnvironmental EnforcementPresented at the UHLC
March 10, 2010
Roger A. HasemanAssistant District AttorneyHarris County, Texas
OverviewOverview
Historical PerspectiveTypes of CasesInvestigative AgenciesE.C.R.P.Annual StatsS.E.P.sInitiativesTraining & Education
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Historical PerspectiveHistorical Perspective
Began in the late 1970sThe Pollution DivisionOne person assigned to this Division as
well as other duties
Received most, if not all, cases from the Harris County Pollution Control Division (HCPCD)
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Historical PerspectiveHistorical Perspective
Responsible for the prosecution of two seminal cases:
American Plant Food Corp. v. State (Water Pollution)
Exxon Co. U.S.A. v. State (Air Pollution)
Still make case law with every trial today.4
Historical PerspectiveHistorical Perspective
1991 – SB2Created a multitude of new offenses, both
felonies and misdemeanorsHealth & Safety CodeWater Code
Basic framework we still use today.
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Types of Cases We ProsecuteTypes of Cases We Prosecute
Illegal Dumping – Strict LiabilityWater Pollution – Strict Liability Used Oil Act ViolationsAir PollutionHazardous Waste Violations
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Special Situation CasesSpecial Situation Cases
Parks and Wildlife Code Violations– Sewage discharges from boats– Industrial Waste discharges
(Fish houses/Seafood processors)– Prohibited Species cases
(Non-native Fish/Plant life)
2007 – 2008 (29 total cases)7
Special Situation CasesSpecial Situation Cases
Animal Cruelty Investigations– These were initially the responsibility of the
Pollution Division
2005 – Water Pollution cases involving horse stables and dog fighting operations
Environmental impact from animal feces discharges and runoff
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Who Investigates Who Investigates Environmental Crime?Environmental Crime?HCPCD – HCPHES
– (Merger with the Health Department)– 15 Investigators
HPD/EIU – 1993 – 6 Police Officers and 6 City Inspectors
HCEED – 1993 – 7 Constables + 2 Salvage Yard Detail
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Who Investigates Who Investigates Environmental Crime?Environmental Crime?Texas Parks & Wildlife Department
– 2 Game Wardens (Environmental Officers)Texas Commission on Environmental
Quality (TCEQ)– 2 Criminal Investigators
E.P.A. – ???County Attorney’s Office
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Environmental Circuit Rider Environmental Circuit Rider Project (ECRP)Project (ECRP)Project of the Houston-Galveston Area
Council of Governments (H-GAC)Reimbursable Contract with H-GAC to
assist the other 12 counties in the regionEnabled Environmental Crimes to obtain a
fourth prosecutor position
Idea conceived as a result of SB 1265
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SB 1265 – 2003 SB 1265 – 2003
Codified as Section 7.203, Water CodeCriminal Enforcement Review
Requires the TCEQ to first review offense reports submitted by peace officers before a prosecuting attorney may initiate criminal environmental charges against a defendant holding a TCEQ permit
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SB 1265 – 2003 SB 1265 – 2003
The TCEQ then has 45 days to evaluate the report, determine whether a violation exists, and whether administrative or civil remedies would be more appropriate than criminal charges.
If there is a determination that administrative or civil remedies are inadequate or inappropriate, then the criminal prosecution may proceed.
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SB 1265 – 2003 SB 1265 – 2003
In all other cases, the violation will be resolved through administrative or civil means, and a prosecuting attorney may not prosecute the alleged violation.
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Response to SB 1265Response to SB 1265
Harris County prosecuted 400 environmental cases in 2003
TCEQ prosecuted 20 total cases in the remaining 253 counties during same period
Businesses here complained to legislature about being prosecuted
Legislature decided to try to stop Harris County from prosecuting these cases (Rogue prosecutor)
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Response to SB 1265Response to SB 1265
Goal to work with H-GAC to provide training and prosecution, if necessary to the other 12 counties in the region
2004 – Prepared both civil and criminal manuals for prosecuting environmental violations
2005 – Went to every county in the region to provide training
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Response to SB 1265Response to SB 1265
2006 – 2009Provided assistance to all counties in the
regionActively prosecuted cases as a special
prosecutor in Fort Bend and Montgomery Counties
In 2008 – 2009, handled approximately 100 cases in those two counties
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Annual Stats – Five YearsAnnual Stats – Five Years
2005 – 383 Cases – $729,405.002006 – 546 Cases – $594,951.002007 – 420 Cases – $644,956.002008 – 492 Cases – $259,300.002009 – 481 Cases – $525,050.00
Avg. – 465 Cases/Year
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Annual Stats – Five YearsAnnual Stats – Five Years
Total Restitution – $446,541.92
Total Community Service Restitution $3,395,347.51
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Supplemental Environmental Supplemental Environmental Projects (S.E.P.s)Projects (S.E.P.s)Both the City of Houston and Harris
County have S.E.P. AccountsCorporations perform projects through
Pre-Trial Intervention AgreementsPenalties – Fines + S.E.P. ContributionsTotal S.E.P. Contributions – 2004-2009
$2,435,650.00
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S.E.P. Recipients S.E.P. Recipients
Buffalo Bayou Partnership – $895,000.00– Hike and Bike Trails– Mighty Tidy– Buffalo Bend Wetland Park– Educational Tour Boat– International Coffee Building
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S.E.P. RecipientsS.E.P. Recipients
Galveston Bay FoundationThe Children’s MuseumKeep Houston BeautifulHarris County – Ozone MonitorsCity of Houston – Hybrid Vehicles and
Park Projects
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Initiative – Back Log of CasesInitiative – Back Log of Cases
Beginning of 2009 – 215 CasesAs of March 1st – 139 Cases
We filed 424 new cases in 2009We handled 481 cases in 2009
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Other Initiatives for 2009—Other Initiatives for 2009—2010 2010 Apartment Complex Sewage casesPower/Pressure Washing CasesShip Channel Initiative – Boat Patrols
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Training & EducationTraining & Education
City of Houston Seminars (NEET)– Waste Transporter Seminar– Power/Pressure Washing Seminars– Apartment Complex Sewage Issues– Automotive Industry Seminar
HCPHES TrainingH-GAC Environmental Roundtables
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Training & EducationTraining & Education
TCEQ Basic Environmental CourseTELEA ConferenceSEEN Conferences
– Our office is an agency member representative for TDCAA
FLETC (Advanced Environmental Crimes Course – Two Weeks)
NDAA Courses
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ConclusionConclusion
No other county in Texas does what Harris County does
No other county in Texas has more than one prosecutor assigned to environmental
The vast majority of criminal environmental case law has come and continues to come from Harris County
Harris County is the leader in Texas on environmental crimes
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Miscellaneous ItemsMiscellaneous Items
Mens Rea (Culpability)
Intentional or Knowing Violations– “with respect to conduct” (Texas law)– Ahmad v. United States (Federal law)
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Public Welfare DoctrinePublic Welfare Doctrine
Strict Liability Offenses– Water Pollution (Chapter 7.147, Water Code)– Illegal Dumping (Chapter 365, H&S Code)
Criminal Negligence
Corporations – Probation???
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Water and “Water in the State”Water and “Water in the State”
means groundwater, … lakes, bays, ponds, … reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, … and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.
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Water in the StateWater in the State
Drainage ditches Watts v. State, 140 S.W.3d 860 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d)
Sanitary sewer linesMcGee v. State, 923 S.W.2d 627 (Tex.App.—Houston [1st Dist.] 1995, pet. ref’d)
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QUESTIONS???QUESTIONS???
Roger A. HasemanAssistant District AttorneyChief, Environmental Crimes DivisionHarris County, [email protected]