Mr. Chairman, I am pleased to have this opportunity to meet with you and the Members of this Committee to discuss how the Environment and Natural Resources Division -- working closely with our partners at the U.S. Attorneys' Offices, the EPA, other federal agencies, and the states -- protects the quality of our environment and the health of our communities. We are the Nation's environmental cops on the beat. Through tough and fair enforcement, our job is to ensure that all citizens can breathe clean air, drink pure water, and enjoy clean lakes and streams; that law-abiding businesses have a level economic playing field on which to compete; and that environmental bad actors know they will be punished. I am pleased to report that our environmental enforcement efforts are strong and effective due largely to cooperative relationships we have fostered with United States Attorneys, state attorneys general, state agencies, and local prosecutors and investigators throughout the country.
I would like first to say a few general words about the Environment Division. I will then discuss some of our enforcement goals; how we have worked to enhance cooperative efforts with our partners in the states; recent initiatives to make our enforcement program more effective; and the results we have achieved.
A. The Environment and Natural Resources Division
The Environment and Natural Resources Division is responsible for representing federal agencies in environmental and natural resources litigation before federal and state courts. We bring affirmative cases and defend challenges to agency actions. Together with our colleagues in the ninety-four U.S. Attorneys' Offices, we work closely with client agencies to enforce and defend the nation's environmental and natural resources laws.
The Division, once known as the Land and Natural Resources Division, was created in 1909. From the start, the Division represented federal agencies in matters related to federal lands, water issues, and Indian disputes. Over time, our responsibilities have grown to include defensive and affirmative litigation concerning the protection and use of the nation's natural resources and public lands; wildlife protection; Indian rights and claims; cleanup of hazardous waste sites; acquisition of private property for public purposes; defense of environmental challenges to government activities; and civil and criminal environmental law enforcement.
Our enforcement work has a long history. The Rivers and Harbors Act, for instance, dates back to 1899. Many of the statutes we enforce were adopted in the 1970s, and were adopted or amended on a bi-partisan basis, often under Republican administrations. Our mission is to enforce these laws -- and to represent the interests of the United States -- fairly and effectively. To succeed, we work closely with a wide variety of individuals and groups, including our client agencies, the U.S. Attorneys' Offices, and local and state governments.
B. Sections in the Environment and Natural Resources Division
The Environment and Natural Resources Division is divided into ten sections, each with its own expertise. Four sections have responsibility for affirmative environmental enforcement:
1. The Environmental Enforcement Section conducts affirmative civil litigation to control and abate pollution. This Section is responsible for judicial enforcement of most of the pollution abatement statutes and rules that regulate discharges into the Nation's air and water and that govern pesticide operations, hazardous waste, and drinking water. Finally, the Section brings natural resource damage actions on behalf of federal trustees (including the Departments of Agriculture, Commerce, Defense, Energy, and the Interior), and claims for contribution against private parties for contamination of public lands and the recovery of money spent to clean up certain oil spills on behalf of the Coast Guard.
Let me tell you about just one of the Section's notable recent victories, in which we completed a landmark enforcement action against General Motors Corporation. We alleged that GM had installed "defeat devices" in more than 470,000 Cadillacs since 1990 in violation of the Clean Air Act. These defeat devices overwhelm the car's catalytic converter and emissions control system, causing carbon monoxide emissions of up to three times the legal limit. We estimate that the Cadillacs have been responsible for the illegal emission of 100,000 tons of carbon monoxide, which can impair vision, learning ability, and work capacity. Carbon monoxide is especially threatening to people suffering from cardiovascular disease.
Working with the EPA and the U.S. Attorney's Office, the Justice Department achieved a $45 million settlement with GM. GM will recall and repair 470,000 Cadillacs, pay a fine, and spend $7 million to offset the pollution caused by its violations. And recognizing California's unique status under Section 209 of the Clean Air Act, the Department of Justice and EPA closely coordinated the negotiation and implementation of the General Motors settlement with the California Air Resources Board.
2. The Environmental Crimes Section plays two primary roles: First, its attorneys investigate and prosecute criminal violators of federal environmental statutes. Second, the Section acts as a resource for U.S. Attorneys, the FBI and the EPA, and state and local investigators and prosecutors. The Section provides highly trained and experienced prosecutors to assist in resource-demanding trials; offers advice and expertise to Assistant U.S. Attorneys and agents in their cases; provides training and policy development to improve the environmental criminal enforcement program; and works with U.S. Attorneys' Offices on coordinating committees and on task forces with our state and local law enforcement counterparts.
We bring environmental criminal cases for the same reasons the Department brings other criminal cases: to promote respect for the law, to achieve adequate deterrence, to provide just punishment, to ensure restitution for victims, and to remedy the harm caused by offenses. Our environmental crimes program is an essential part of our program to protect human health, the environment, and our natural resources. For example, in 1995 a federal grand jury in Ohio returned criminal indictments against a barge company, M/G Transport Services, Inc., and some of its employees, including a former vice president and two tow boat captains, charging Oil Pollution Act and Clean Water Act violations for illegal pollution into the Ohio River, and of conspiracy to violate the Oil Pollution Act. Following trial, in December 1995, an Ohio jury returned guilty verdicts in the case. In the year following this indictment and the resulting convictions, the number of unidentified, or "mystery," oil sheens on the Ohio River system reported to the National Response Center decreased significantly.
The Department's criminal enforcement program has long benefitted from close cooperation with and support of state and local authorities. For example, in 1994, Giacomo Catucci was convicted of the illegal disposal in Rhode Island of PCB's from an electrical transformer and failure to notify authorities of the release of that hazardous substance. The case, prosecuted by an Assistant U.S. Attorney, was investigated entirely by the Rhode Island Department of Environmental Management. The state continued its close support of the prosecution all the way through trial.
3. The Environmental Defense Section defends legal challenges to federal agencies' rule-makings, regulatory decisions, and permit actions under federal statutes that protect the public against pollution. The Section's clients include the EPA, the Department of the Interior, the Army Corps of Engineers, and the Coast Guard. Since federal agencies generally have the same obligations as private parties to comply with the environmental laws, the Section also represents agencies sued by states and citizens groups for violations of environmental laws. In addition, the Section has responsibility for affirmative enforcement of the wetlands laws.
4. The Wildlife and Marine Resources Section is responsible for both civil and criminal cases arising under the federal fish and wildlife conservation statutes. Litigation under these statutes can play out in any of three different contexts: defense of federal agencies whose programs are challenged as inconsistent with federal conservation statutes; civil enforcement, usually to enjoin persons from violating federal conservation statutes; and criminal prosecutions.
Each year, approximately $5 billion in illegal wildlife shipments is traded from country to country. The global illegal trade in wildlife is said to generate more profit than illegal arms sales. It constitutes a worldwide black market second in size only to the drug trade. The Wildlife Section, with local U.S. Attorneys' Offices, brings criminal prosecutions to stop international wildlife smuggling, interstate trafficking in protected species, and federal wildlife violations such as eagle poisonings and migratory bird sales.
Some of you may have read about Tony Silva, an internationally prominent writer and lecturer on the plight of endangered parrots in the wild. Last year, Mr. Silva pled guilty to a far-reaching conspiracy to smuggle into this country highly protected species of birds trapped in the wild in South America. The smuggling conspiracy lasted five years, and involved rare Hyacinth Macaws worth more than $1 million. These birds are so rare that they have the highest level of protection under the Convention on International Trade in Endangered Species (CITES). CITES, which regulates trade in species actually or potentially threatened with extinction, boasts 136 member nations. Through international cooperation, the treaty furthers member states' goal of protecting endangered species and reflects an international consensus that trade in wild fauna and flora must be done legally, sustainably, and without further detriment to wild populations. As a result of our effort to stop Mr. Silva's smuggling conspiracy, a federal court sentenced him to 82 months in prison. He is appealing the court's refusal to let him withdraw his guilty plea.
Silva was charged as part of Operation Renegade, a U.S. Fish and Wildlife Service probe of the illegal international smuggling of protected exotic birds or their eggs from South America, Africa, Australia and New Zealand. The operation has resulted in convictions of 37 people, over half of whom have been sentenced to prison terms, making it among the most successful wildlife law enforcement initiatives ever undertaken. In other recent cases, we have prosecuted smugglers who transported rare snakes and tortoises out of Madagascar by hiding them in airline passenger baggage; a black marketeer who tried to bring an entire tiger skeleton into the United States; and an individual who smuggled into the country hundreds of endangered tarantulas. In that case, the court received evidence that depletion of this species by international smuggling had impaired the search for a cure for Alzheimer's and Parkinson's diseases.
5. The Division's other sections work on a broad range of issues that reflect the diversity of our clients and of the federal environmental and natural resources laws:
The General Litigation Section defends agencies sued under statutes that govern management of National Forests and other public lands, and under the National Environmental Policy Act (NEPA). The Section also litigates claims filed by Indian tribes against the government and defends against takings claims in the Court of Federal Claims.
-- The Indian Resources Section litigates on behalf of Native Americans pursuant to the United States' trust responsibility.
-- The Land Acquisition Section handles the acquisition of property by the process of eminent domain for congressionally authorized public purposes.
-- The Appellate Section handles appeals in cases originating in the litigating sections, and assists the Solicitor General when the Division's cases reach the United States Supreme Court.
-- The Policy, Legislation, and Special Litigation Section provides counsel to the Assistant Attorney General, has responsibility for correspondence and Freedom of Information Act matters, and serves as the Division's ethics advisor and Alternative Dispute Resolution coordinator. The section also coordinates the Division's legislative and international work.
-- The Executive Office provides administrative support services for the Division.
C. The Division's Clients
Civil cases, and many of the criminal cases, litigated by the Environment Division are referred by other federal agencies either when those agencies request the Division to file an action, or when they have been sued. The Division's principal clients include the EPA and the Departments of Agriculture, Commerce, Defense, Energy, the Interior, and Transportation. However, we have represented virtually every federal agency and currently have more than 12,000 pending cases and matters.
II. Environmental Enforcement Goals and Accomplishments
A. Overall Goals
With that introduction to the Division's varied work, let me turn to the Justice Department's goals for its environmental enforcement program. We bring criminal prosecutions and civil enforcement actions to protect the environment, to remedy environmental harm, to punish wrongdoers, and to deter future violations. Our law enforcement efforts protect our lakes and streams, our drinking water, the air we breathe, our food supply, the land our children and grandchildren will inherit from us, and even the ozone layer that protects us from harmful ultraviolet rays. Without vigorous enforcement of our environmental laws, the health of our families, our communities, our environment, and our economy would all be compromised.
How does environmental enforcement protect the economy? First, clean air and clean water are essential ingredients for a healthy economy. Pollution decreases land values, can impose steep health care costs, and harms industries, such as fishing, tourism, and recreation, that depend on robust natural resources. Second, bad actors -- be they international chlorofluorocarbon (CFC) smugglers or companies that do not install required pollution control equipment -- put law-abiding businesses at a competitive disadvantage. For example, a national alliance of major chemical companies that have invested in CFC alternatives repeatedly has expressed strong support for the Department's efforts to stop the illegal import of this ozone-depleting refrigerant. One of this Division's jobs is to make sure that any company breaking the law is brought into compliance, that no competitor gets an unfair head start from illegal conduct, and that everyone is playing on a level economic field. A strong and effective compliance program is essential to even-handed application of the environmental laws and to fair and honest competition.
Environmental protection statutes promote and encourage voluntary environmental compliance, but it is a vigorous enforcement program that drives such compliance. While many people comply with the law for the good of the community, there are many people who would not send their tax checks to the IRS next April if tax violations carried no penalty. They comply with the tax laws in part because they may get caught, and sanctioned, if they do not. So, too, we cannot expect voluntary compliance with environmental laws unless those laws are enforced, and enforced vigorously. As William K. Reilly, the Administrator of EPA between 1989 and 1993, stated during his tenure at EPA, the "enforcement of environmental laws is absolutely essential" and "is at the very heart of the integrity and the commitment of our regulatory programs." See Reilly, "The Future of Environmental Law," 6 Yale J. on Reg. 351, 354 (1989).
Environmental violations have real victims. Polluting an underground drinking water supply can threaten thousands of people. An oil spill that damages an entire ecosystem -- such as the Exxon Valdez spill in Alaska -- may undermine the economic foundation of surrounding communities. The risk of harm can sometimes span the globe, as it does when criminals illegally smuggle chemicals that damage the protective stratospheric ozone layer. The harm from environmental violations may extend far into the future, affecting the health of generations yet unborn. Damage to natural resources can be permanent, as where a species is lost, a precious wetland is destroyed, or a drinking water aquifer or fishery is polluted beyond repair. This Division's job is to ensure that the laws Congress has enacted to prevent such harms are respected and obeyed.
B. Working to Foster Cooperation With State and Local Authorities
Cooperation with our colleagues in state and local law enforcement is critical to achieving our goals. As a former local prosecutor, Attorney General Reno is keenly aware of the importance of state and local law enforcement to the effective implementation of federal law. This Division works in partnership with the states and the subdivisions because we share a common mission with state attorneys general, state environmental agencies, and local authorities. Cooperative enforcement often maximizes the chances of success, maximizes resources, and avoids duplication and misunderstandings.
1. Goals of the Federal Relationship With State and Local Authorities
Our federal environmental laws seek to assure all people in our Nation a basic level of environmental protection. These laws are implemented through a working federalism that is critical to successful environmental compliance. The federal, state, and local governments all have important roles. States are primary implementers of our environmental laws, and may have more direct access to information concerning polluters and their impacts on the local environment. Local governments often are the most directly affected by environmental violations. The federal government has special expertise across the spectrum of environmental issues. We also have the depth to handle especially large cases, and the reach to address pollution that spills from one state into another. The national government has the unique perspective and responsibility to stop industry from pitting one state against another in a race to lower environmental protections for short-term economic advantage at long term cost to our environment, public health, and the economy. Finally, this Division can help to ensure that protections for all people are enforced if a state cuts its environmental budget or personnel.
Two elements are essential to an effective working federalism: strong state programs that include strong enforcement, and cooperation among federal, state, and local government. In a moment, I would like to tell you about steps this Division has taken to strengthen its relationships with our colleagues in state and local government. But first, let me illustrate the good results that those cooperative efforts have brought.
2. Recent Examples of Cooperative Federal-State-Local Relationship
Our working relationship with states generally has been a very cooperative one. It unquestionably has resulted in better environmental protection. A few examples:
a. Today, as we are speaking, the Environmental Enforcement Section and the State of Ohio are scheduled to commence trial of a Clean Air Act case against a lumber manufacturer in New Knoxville, Ohio. For more than a decade, Hoge Lumber Company has been operating a wood-fired boiler in violation of the state and federal emissions limits for particulates, which can lead to respiratory complications. The Ohio EPA unsuccessfully sought time and time again to get Hoge to install additional control devices that would halt its unlawful emissions. Last year, the State joined our federal action. Cooperating closely, we filed a joint trial brief, have coordinated on witnesses, and are proceeding at trial together.
b. In United States v. Marine Shale Processors Inc., lawyers from my Division and the Louisiana Department of Environmental Quality (LDEQ) shared the counsel table at trial. The defendant accepted hazardous waste, claimed to recycle it into "aggregate," and then sold it to the public. The company marketed incinerator ash for one dollar a ton; ash that was high in heavy metals (including lead) was used on roads, in driveways, and under a house in the community. After an LDEQ inspection revealed numerous environmental violations, the state referred the matter to EPA for enforcement.
As a result of our joint efforts with the state, a federal court enjoined Marine Shale from selling its ash to the public. The company will have to pay a large civil penalty. Marine Shale is now shut down, and the federal and state governments are working to ensure compliance with the environmental laws if and when the facility reopens.
c. Just two weeks ago, the State of California and the United States lodged a joint consent decree resolving claims against Pacific Gas & Electric Company ("PG&E"). The consent decree requires PG&E to support environmental enhancement projects to protect estuaries near Morro Bay and involving the state's Mussel Watch Program. We alleged in the complaint that PG&E had violated the Clean Water Act and its discharge permits by submitting and failing to correct incomplete and inaccurate reports. The PG&E reports purported to show that the cooling water system at PG&E's Diablo Canyon nuclear power plant complied with the Clean Water Act by employing available technology to minimize adverse environmental impacts. Information PG&E left out suggested otherwise. For example, up to ninety percent of the larval fish in the cooling water system perish. The State took the lead in investigating the facts. At the State's invitation, State and federal officials joined forces to prepare for litigation and settlement negotiations. Working together, we negotiated a precedent-setting settlement that protects the environment and demonstrates the importance of accurate self-reporting.
d. In United States v. ARCO Pipe Line Co., we worked closely with the States of Indiana and Ohio to resolve claims arising when an oil pipeline ruptured and discharged approximately 30,000 gallons of diesel fuel into an agricultural field in Dekalb County, Indiana. The oil flowed through a drainage ditch into Fish Creek, a tributary of the St. Joseph's River and, among other injuries, severely harmed fish populations. One species, the white cat's paw pearly mussel, is so rare that Fish Creek is the only place in the world where it is known to exist. Approximately seven miles of the Creek were impacted by the spill. Under the decree, defendants ARCO Pipe Line Company and NORCO Pipeline, Inc., will spend $2.5 million to improve the water quality in Fish Creek, to bring back fish, mussel and wildlife populations to pre-spill levels, to implement local education programs, and to protect the waterway from future harm.
e. In a case developed with the Commonwealth of Virginia through the Tidewater Environmental Crimes Task Force, George Madariaga last year pleaded guilty to knowingly discharging spent sandblast abrasives into the Elizabeth River. Madariaga's employees at the Virginia Dry Dock Company, acting under his direction, regularly discharged sandblast abrasives by, among other things, shoving the materials directly into the water. The company did not stop its unlawful conduct even after the Virginia Department of Environmental Quality (DEQ) penalized it. As part of his plea agreement, Madariaga agreed personally to pay the balance of the state's civil penalty, which the company still had owed to the DEQ.
As these examples illustrate, we have a good relationship with our partners in the states. Indeed, since the beginning of Fiscal Year 1996, we have entered into twenty-five settlements in which states were co-plaintiffs and in which we split penalties with the states. All told, states have collected almost $12 million dollars from our joint enforcement actions during that period.
3. Initiatives to Foster Cooperative Federal-State-Local Relationship
Federal-state-local cooperation stems partly from steps this Administration has taken to foster better communications with state and local officials, closer intergovernmental cooperation, and more efficient efforts. Let me describe a few of our other initiatives:
First, near the beginning of my tenure as Assistant Attorney General, I created a new position, the Counselor for State and Local Environmental Affairs. My Counselor works with state and local officials and attorneys in our Division to maximize environmental enforcement through cooperative efforts, and to act as liaison with our colleagues in the states and with state organizations.
Second, we have established a policy that our Environmental Enforcement Section will notify the state in advance of filing a suit in that state, absent exceptional circumstances, and will invite the state's participation or cooperation in the action. This policy encourages cooperation and information exchange with the state, and ensures that the states do not learn about our actions from reading the newspaper. Just a few days ago, we received a letter from a state Attorney General's office thanking us for sending these notices.
Third, we have developed particularly productive relationships with state and local law enforcement personnel through environmental crimes task forces and Law Enforcement Coordinating Committees (LECCs) across the country. The Environmental Crimes Section has worked closely with U.S. Attorneys' Offices to support these groups. For example, we have supported the Environmental Crime Task Force in the Eastern District of Missouri, which includes members from all federal, state and local law enforcement agencies that have responsibility for the detection, investigation, and prosecution of environmental crimes in that jurisdiction. That task force has been very successful in coordinating and prosecuting environmental crimes. Because the State of Missouri has only misdemeanor penalties for violations of state environmental law, most cases are brought in federal court. The Missouri Attorney General has designated two assistant attorneys general to handle cases in federal court through the U.S. Attorney's Office. Similar task forces are thriving in many other states.
Fourth, in 1994, then-Attorneys General Tom Udall of New Mexico and Deborah Poritz of New Jersey joined with a number of state environmental commissioners, tribal representatives, EPA Assistant Administrator Steve Herman, and me to establish a senior forum for the discussion of environmental enforcement and compliance issues. The forum first met in 1994, and has met as many as several times a year since then. We have been very pleased to join in this process, which facilitates coordination and discussion among policy makers in state and federal governments and allows us to share ideas as well as concerns. We participate in many other such cooperative efforts, and have met often with the National Association of Attorneys General and the Conference of Western Attorneys General. Indeed, when I leave this hearing, I will be heading to address a meeting of the National Association of Attorneys General.
Fifth, for a number of years, Department attorneys -- including those in this Division and in United States Attorneys' Offices -- have worked with state officials to train state and local prosecutors, investigators, and technical personnel in the development of environmental crimes cases. Much of that work occurs at the Federal Law Enforcement Training Center in Brunswick, Georgia. Department attorneys have helped to develop the basic curricula and regularly teach as faculty. Our attorneys also assist as faculty and otherwise for state and local training done by the National Association of Attorneys General, by the four regional state and local environmental enforcement organizations, and for a wide variety of other training efforts at the state and local level. Such instruction frequently is a weekly routine for our Crimes Section attorneys.
Finally, we have worked vigorously to improve and solidify our relationship with the ninety-four United States Attorneys' Offices around the country. These relationships are vitally important to us, and are critical to the optimal functioning of both the Division and the U.S. Attorneys' Offices. We work jointly with Assistant U.S. Attorneys on many of our cases. In other instances, the U.S. Attorneys' Offices take full responsibility for cases and call upon us only for our special expertise. In January 1997, I sent a letter to all U.S. Attorneys reaffirming our practice and re-extending our invitation to participate in any pending or future civil environmental enforcement cases in their districts. I encouraged those who had not previously taken advantage of this invitation, to act as lead counsel, co-lead, or as local counsel. I have received a number of letters from district offices expressing appreciation for this outreach effort.
a. Overfiling Myths and Reality
I have heard concerns expressed about "overfiling." Overfiling is both misunderstood as a concept and exaggerated as an occurrence. Overfiling happens where the federal government files an enforcement action after the state has brought an enforcement action for the same violations. There are reasons good reasons for us to bring these cases, which I will describe. And where there are misunderstandings or disagreements, we are committed to working to establish the best possible communications.
But let me first point out that overfiling does not happen often. We bring such cases only after a careful review by EPA and this Division. In the past twelve months, the Justice Department filed only two complaints in an environmental matter where the state previously had brought an enforcement action for the same violations. In the first case, against Westinghouse, the Commonwealth of Pennsylvania previously had entered into consent agreements with Westinghouse, but agreed with our enforcement action, joined as a plaintiff-intervener, and was a party to our consent decree. The second was the case of United States v. Smithfield Foods, Inc. (E.D. Va.), which I will be discussing.
Second, when we do overfile, often we do so at the invitation of the state. In 1995, the Environmental Council of the States (ECOS), released a report on overfiling within the prior three years. That report even included cases in which the federal government took administrative or civil enforcement action against a polluter for environmental violations broader in scope than those addressed by any prior state action. Even using that broad definition of overfiling, the ECOS report did not find widespread concern. More than half of the states that responded reported no overfiling within the previous three years. Further, the states reported that, in most cases of overfiling, the federal government had provided notice and engaged in extensive prior discussions with the states. Most states reported positive relationships with federal regional enforcement staff. Thus, overfiling hardly is the bugaboo some might claim.
We also must recognize the significant and appropriate role for federal enforcement. Our cases often assist the states. Indeed, state enforcers tell us that the possibility of federal enforcement enhances the negotiating posture of state environmental agencies as they seek to obtain compliance. The threat of federal enforcement is a powerful deterrent to violators. For example, one state reported in the ECOS survey that, "in more than one case, EPA's threat of overfiling has helped the [state] gain a favorable settlement." That threat, like most threats, is effective only because we can and will deliver as promised.
Some people have suggested that any federal enforcement in a delegated state constitutes overfiling. That is not accurate. As I have explained, federal enforcement serves essential functions and often is invited or welcomed by the states.
This Division also will vigorously defend against challenges by states that want to weaken environmental protections. We recently prevailed against challenges by Virginia and Missouri to EPA requirements for an effective Clean Air Act program in those states. Once again, it is our task to ensure that all people enjoy a basic level of environmental protection; that all businesses enjoy a level economic playing field; and that industry does not pit one state against another in a bidding war to attract industry by compromising environmental standards.
b. United States v. Smithfield Foods, Inc.
As I noted, this Division has filed only two civil judicial enforcement actions in the past twelve months for violations that previously were the subject of a state enforcement action. In one case, the state agreed with our action. The other case, brought against Smithfield Foods, Inc., is still pending. The following information is all based on the public record.
The Smithfield case demonstrates the important role the federal government plays when a state has been unable to bring a recalcitrant company into full compliance with the law. Subsidiaries of Smithfield Foods, Inc., operate two wastewater treatment plants in Smithfield, Virginia. These plants treat wastewater generated during hog-slaughtering and meat-processing operations, and collectively discharge approximately three million gallons of effluent per day into the Pagan River. The Pagan is part of the James River estuary, which connects to the Chesapeake Bay. The companies' discharges are subject to the terms and conditions of a water permit issued by the Virginia Department of Environmental Quality.
From October 1991 through the present, Smithfield Foods, Inc. and its subsidiaries committed at least five thousand violations of its discharge permit. Over and over again, the companies violated effluent discharge limitations, including limitations on fecal coliform, phosphorous and nitrogen. The River has been closed to shellfish harvesting due to fecal coliform contamination, and the companies' discharges have contributed to that contamination. Similarly, the companies' excessive phosphorous and nitrogen discharges, which at times accounted for 80% of the phosphorous in the Pagan River, contributed to the nutrient loading that has decreased the health and productivity of Chesapeake Bay. The companies' violations were serious enough that the United States filed both a criminal and a civil case.
On September 24, 1996, the United States charged the former head operator of the Smithfield companies' two wastewater treatment plants with twenty-three crimes. Eight of the charges including illegal discharge of fecal coliform into the Pagan River, false statements, falsification of reports, and destroying records were for offenses committed at the companies' plants. On October 22, 1996, the operator pleaded guilty, without a plea agreement, to all twenty-three counts. On January 16, 1997, he was sentenced to 30 months imprisonment. He is presently incarcerated.
The federal government also filed a civil case, against the companies rather than the individual operator. That is the overfiling case. This federal action was necessary because, despite the seriousness of Smithfield's violations, the Commonwealth was taking no action to assess penalties against the companies. Rather, in the face of threats by the Smithfield Companies to leave the Commonwealth of Virginia if a phosphorus limit was imposed on their facilities, the Commonwealth of Virginia entered into a series of agreements allowing the Smithfield Companies to discharge uncontrolled amounts of phosphorus into the Pagan River for five years in return for the Smithfield Companies' agreement to hook up to a publicly-funded sewer line when it was constructed and to dismiss the Companies' challenge to the phosphorus limit. In fact, in May 1996, the state Water Control Board specifically directed the Department of Environmental Quality to enforce the consent agreements but to take no penalty action. Recognizing that the state had not succeeded in halting Smithfield's violations of the law, EPA referred the matter to this Division for enforcement. Just last week, the district court ruled for the United States, finding the company liable for effluent limitation violations, and thereby resolving many of the issues in this case.
When the case was referred to the Department of Justice on August 27, 1996, EPA had notified Virginia of the referral. EPA regional officials held several conference calls with state officials, and invited the Commonwealth to join the federal case. EPA provided the Commonwealth with information on Smithfield's violations. As the court later said, "[t]he Commonwealth declined the EPA's invitation to join the federal action. Although the Commonwealth never mentioned its plan to file its own enforcement action to EPA, on August 30, 1996, the Commonwealth filed an action against Smithfield." For the first, time, the Commonwealth sought penalties, although in amounts far lower than sought by EPA.
Given our efforts to develop a cooperative relationship with the state, we were surprised by Virginia's unilateral action, which might have undercut our enforcement action. When we filed our complaint on December 16, 1996, the Smithfield companies argued that our action was barred by the Commonwealth's recent suit and/or consent orders. The court's recent decision rejected that defense. In a thorough, 75-page opinion, the district court held that Virginia's action did not bar ours, in part because Virginia law does not authorize the imposition of administrative penalties and because Virginia had failed to provide adequate procedures for public participation.
C. Environmental Crimes Bill
One very important initiative of this Administration that will benefit state, local and tribal governments is the "Environmental Crimes and Enforcement Act of 1997," which has been introduced in the House as H.R. 277, and which we hope soon will be introduced with bipartisan support in the Senate. This bill will enhance environmental criminal enforcement under a wide range of statutes. It was developed to reflect the needs of and is designed to support law enforcement officials throughout the country.
The legislation strengthens federal, state, local, and tribal partnerships by authorizing courts to order convicted criminals to reimburse States, localities, and tribes for their costs in assisting federal environmental prosecutions. The bill also provides for increased punishments when police officers, firefighters, other state and local officials, or anyone else suffers death or serious injury as a result of an environmental crime, and extends the statute of limitations where a criminal has taken steps to cover up or to conceal an environmental crime. The bill adds an "attempt" provision to environmental statutes, similar to those found in more than 170 other federal criminal statutes, so that we may prosecute the criminal even when we stop a crime in progress. This provision will remove a major obstacle to environmental investigations by allowing law enforcement personnel to use environmentally benign substitutes for hazardous materials in undercover operations. Finally, the bill will clarify the authority of the courts to provide for restitution in environmental crimes cases, and to issue orders to ensure that those charged with environmental crimes do not hide or dispose of assets needed to pay restitution.
D. Some Success Stories
Now I would like to offer a few additional examples that show why our cases are important; how they address complex and resource-intensive enforcement needs; how they have a real, direct impact improving the environment; and how they deter future violations.
1. Multi-State, Multi-Facility Enforcement
Many of our cases are extremely complex, involving multiple facilities in several states. We recently settled an enforcement action against Georgia-Pacific Corporation for Clean Air Act violations at nineteen wood product facilities in Alabama, Arkansas, Florida, Georgia, Mississippi, North Carolina, South Carolina and Virginia. Under the settlement, Georgia-Pacific will take steps that will remove 10 million pounds (5,000 tons) of volatile organic compounds ("VOCs") from the atmosphere annually -- an estimated 90 percent reduction at many facilities. VOCs, a precursor to ground-level ozone, can migrate in the atmosphere for hundreds of miles and are a particular problem in the southeast United States, where these facilities are located. The United States worked in close cooperation with each of the state environmental agencies in order to bring about this complex settlement.
2. Comprehensive Injunctive Relief and Environmental Enhancement
Many of our recent cases show the effectiveness of federal enforcement in securing, in addition to penalties, comprehensive relief to protect and enhance the environment when it is harmed by unlawful pollution.
a. In United States v. Jefferson County, Alabama, (N.D. Ala.), the United States sued Jefferson County, Alabama, and the Jefferson County Commission for annually discharging 2.2 billion gallons of raw and partially treated sewage into the Cahaba and Black Warrior Rivers. The Cahaba is the source of one fourth of the drinking water for the state, and the Black Warrior runs through downtown Birmingham. The case was settled by a consent decree that requires the County to cease its illegal discharges, rehabilitate its treatment plants and collection system, pay a $750,000 penalty, and spend $30 million for the acquisition of riparian lands to help restore water quality in the rivers.
b. Last January, the Sherwin Williams Company and LTV Steel agreed to settle separate actions for serious violations of federal public health and environmental protections in the southside of Chicago. We alleged that Sherwin Williams had failed properly to control emissions that impair breathing and had discharged high levels of organic solvents that created a risk of fire or explosion. We alleged that LTV Steel had, for years, emitted unlawful levels of coke oven gas. Those gases are highly toxic and can lead to heart attacks, asthma, and cancer. Under the consent decree, Sherwin Williams will clean up and restore an old and abandoned industrial site identified by the City for commercial redevelopment, restore wetlands and protect habitat near Indian Creek and Lake Calumet, install pollution abatement equipment, and pay a penalty. In the second settlement, LTV Steel will undertake environmental enhancements to reduce its air emissions below the federal requirements and will pay a penalty.
c. In another significant action, the United States sued the Tenneco Oil Company on behalf of the Sac and Fox Nation of Oklahoma to obtain a fresh water supply, as well as compensatory and punitive damages. Our complaint alleges that Tenneco's oil production on Sac and Fox lands had destroyed the Sac and Fox Nation's groundwater supply. We have reached a settlement in principle with Tenneco, under which the company will fund construction of water wells to supply water in tribal areas; purchase 120 acres of land to be placed in trust for the tribe; and make a cash payment for purposes including cleaning, restoration, and reforestation of a pecan grove.
3. Environmental Crimes Have Real Victims
Environmental crimes have real victims, as our recent prosecution of one particularly egregious case demonstrates. Last fall, the State of Mississippi requested EPA's assistance in the investigation of widespread pesticide misuse along the state's gulf coast. EPA set up a task force that included federal agents, environmental and health agencies in Mississippi, Louisiana, and Alabama, and local health officials, as well as Justice Department attorneys. The investigation identified two Mississippi residents, Dock Eatman, Jr., and Paul Walls, Sr., who were operating unlicensed exterminating businesses and using the highly toxic pesticides methyl parathion and permethrin to treat homes, day care centers, motels, and restaurants. Methyl parathion and permethrin are restricted by EPA for agricultural use in uninhabited fields, and exposure to methyl parathion causes serious illnesses. To protect people from methyl parathion poisoning, homes and businesses contaminated by Eatman and Walls were evacuated or closed. By May 16, 1997, EPA had relocated more than 1500 people from 399 homes along the Mississippi Gulf coast. The cost to evacuate and clean up contaminated homes and businesses is expected to exceed $70 million of which $60 million has come from the Superfund. We prosecuted Eatman and Walls under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). At trial, we showed that both defendants had been trained in the legal and safe use of restricted-use pesticides and had been warned repeatedly that their application of pesticides to homes and businesses was illegal. Numerous individuals whose homes had been treated by the defendants described illnesses they and their families suffered; some of the victims had been hospitalized. On March 13, 1997, a jury in Biloxi found Dock Eatman Jr., guilty on 21 counts of pesticide misuse. On May 2, 1997, a jury in Hattiesburg found Paul Walls, Sr., guilty on 48 FIFRA counts. Sentencing is scheduled for July 7, 1997.
As I mentioned, we recently have been targeting the illegal importation of ozone-depleting CFCs. CFCs are used primarily as refrigerants, solvents, and propellants. Unfortunately, once in the stratosphere, CFCs destroy the ozone layer that protects us from ultra-violet radiation; that can cause increased skin cancer, retard growth in plants and animals, and even disrupt the human immune system. In January 1996, the United States imposed a ban on most CFC importation, although existing stockpiles can legally be used. After the phase-out began, a black-market in illegally-imported CFCs developed in the United States. Our nationwide federal offensive has resulted in significant jail terms and criminal fines for the smugglers. In the past two years, more than two million pounds of CFCs have been seized, with a street value of more than $18 million dollars.
In another case, we assisted the U.S. Attorney in prosecuting Consolidated Edison when an explosion in a Con Ed steam manhole in New York City released 200 pounds of asbestos into a crowded city neighborhood. Con Ed quickly learned of the explosion and the asbestos release. To protect the public, our environmental laws required Con Ed to report the release immediately. Con Ed did not report it for four days, during which time many people were exposed, while Con Ed falsely assured everyone, including its own employees working on repairs, that no asbestos had been released. The corporation and an assistant vice president were convicted.
4. Protecting Children's Health
Protecting children from environmental health risks is a high priority for the Clinton Administration. Some of this Division's largest and most successful enforcement cases have addressed the health and safety of children. As the President stated in his recent Executive Order concerning Protection of Children from Environmental Health Risks and Safety Risks, a growing body of scientific knowledge demonstrates that children may suffer disproportionately from environmental health risks. These risks arise because children's neurological, immunological, digestive and other bodily systems are still developing; they eat more food, drink more fluids, and breathe more air in proportion to their body weight than adults; and they are less able to protect themselves from environmental hazards. Executive Order 13045 directs federal agencies to improve research to protect children and to ensure that new safeguards consider special risks to children.
In many of the Environment Division's Superfund cases involving mining wastes, such as Bunker Hill in Idaho, Sharon Steel in Utah, Leadville/Cal Gulch in Colorado, the ABEX Site in Portsmouth, Virginia, and NL Industries in Illinois, young children are subject to disproportionate exposure and risk. In these cases, lead and other heavy metals hazardous to young children had been left in mine waste and are easily accessible to children, who may live and play on the waste piles. As a result of these cases, the companies that benefitted from the mining operations are required to assist in removing the toxic soils from the yards and playgrounds where the children live and play in the old mining towns of the Silver Valley of
Idaho, Midvale, Utah, Leadville and Aspen, Colorado.
Enforcement efforts under the Safe Drinking Water Act, Clean Air Act and other environmental statutes also protect children's health. After working in close cooperation with the state, we recently entered a consent decree in United States v. Rio Bravo Farms, which involved the Cuna del Valle (Cradle of the Valley) "colonia" in El Paso County, Texas, near the Rio Grande River. Colonias are rural settlements of generally substandard housing along the U.S.-Mexican border, which frequently lack basic infrastructure, such as potable water, sanitary waste disposal systems, electricity, and paved roads. The United States alleged that Rio Bravo's concentration of low income residents at the colonia created an imminent and substantial endangerment because the residents used shallow water wells to obtain water for household consumption, but the residents also had no choice but to dispose of fecal material at the colonia in a manner that could contaminate the well water with disease-causing bacteria and viruses found in human feces. Many colonia residents are new families with young children. Children, the elderly and others with weakened immune systems are particularly vulnerable to the enteric diseases that are caused by the consumption of water contaminated with bacteria and viruses associated with human feces. Under the consent decree, the defendants have constructed and will maintain a temporary water station at the Cuna del Valle colonia to provide potable water to residents until the El Paso County Lower Valley Water District Authority has extended water service lines through the colonia in late 1997, and residents are able to obtain potable water from the local public water authority. When this occurs, the defendants will pay any costs associated with connecting the residents to the water lines.
We also bring criminal cases to punish and deter violations that harm children. The prosecution in United States v. William Recht Co. (M.D. Fla.) involved two nine-year old boys who died after playing in a dumpster in which the defendants had illegally disposed of toluene wastes. Two Recht employees were convicted of two counts of illegal treatment, storage, and disposal of hazardous waste under RCRA and were sentenced to 27 months in prison. The corporation entered a guilty plea to the charge of violating RCRA by knowingly endangering the lives of others.
E. Alternative Dispute Resolution
Although one of our primary responsibilities is to litigate cases to protect public health and the environment, we seek to avoid litigation where possible. In April 1995, Attorney General Reno issued an order on Alternative Dispute Resolution (ADR) to promote the use of ADR in appropriate cases. Pursuant to that order, the Environment Division issued a policy concerning criteria to be used in identifying cases appropriate for ADR and concerning ADR training for all attorneys. The Division ADR policy calls upon our attorneys to use ADR techniques in their cases whenever ADR may be an effective way to reach a consensual result that is beneficial to the United States.
We have used ADR with particular success in multiple party Superfund litigation. In those cases, mediation on allocation issues, such as allocation of the costs incurred by the government for cleanup of a Superfund site among various parties that are jointly and severally liable for costs, avoids protracted litigation and may resolve those allocation issues without waiting for further litigation. Two good examples of this are United States v. Allied Signal, et al. (D. N.J.) and United States v. American Cyanamid et al., (S.D.W.VA.), both Superfund cost recovery cases. Mediation in those cases also resolved contribution litigation filed against the United States as a defendant.
ADR also is useful in cases or disputes that involve more than one governmental body or sovereign (e.g., the federal government, a state government, and an Indian Tribe), such as water resource cases. ADR may provide an efficient and cost-effective solution to such disputes and may resolve the whole dispute -- rather than just the portion presented in litigation. For example, mediation in Wisconsin v. Illinois, a Supreme Court original action, led to an agreement to resolve a 90-year water allocation dispute involving eight states and the United States, and will avoid years of litigation that could have cost the taxpayers millions of dollars.
From our experience in the Environment Division, we are learning that ADR can help to resolve cases or to narrow issues, which in turn may lead to settlement. Where appropriate, we hope to foster and develop alternatives to the traditional adversarial techniques used to resolve civil legal disputes involving the United States.
This Division's job is to protect our Nation's environment, to protect our people's health, and to ensure a level playing field through firm, but fair enforcement. I am proud to say that the attorneys in our Division -- working in close cooperation with our colleagues in our client agencies, the U.S. Attorneys' Offices, and in state and local government -- are doing a great job and getting visible results.