Environmental Enforcement

1. Environmental Enforcement Presented at the UHLC March 10, 2010 Roger A. Haseman Assistant District Attorney Harris County, Texas

2. Overview • Historical Perspective • Types of Cases • Investigative Agencies • E.C.R.P. • Annual Stats • S.E.P.s • Initiatives • Training & Education

3. Historical Perspective • Began in the late 1970s • The Pollution Division • One person assigned to this Division as well as other duties • Received most, if not all, cases from the Harris County Pollution Control Division (HCPCD)

4. Historical 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.

5. Historical Perspective • 1991 – SB2 • Created a multitude of new offenses, both felonies and misdemeanors • Health & Safety Code • Water Code • Basic framework we still use today.

6. Types of Cases We Prosecute • Illegal Dumping – Strict Liability • Water Pollution – Strict Liability • Used Oil Act Violations • Air Pollution • Hazardous Waste Violations

7. Special 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)

8. Special 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

9. Who Investigates 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

10. Who Investigates 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

11. Environmental Circuit Rider 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 region • Enabled Environmental Crimes to obtain a fourth prosecutor position • Idea conceived as a result of SB 1265

12. SB 1265 – 2003 • Codified as Section 7.203, Water Code • Criminal 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

13. 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.

14. 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.

15. Response 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)

16. Response 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

17. Response to SB 1265 • 2006 – 2009 • Provided assistance to all counties in the region • Actively prosecuted cases as a special prosecutor in Fort Bend and Montgomery Counties • In 2008 – 2009, handled approximately 100 cases in those two counties

18. Annual Stats – Five Years • 2005 – 383 Cases – $729,405.00 • 2006 – 546 Cases – $594,951.00 • 2007 – 420 Cases – $644,956.00 • 2008 – 492 Cases – $259,300.00 • 2009 – 481 Cases – $525,050.00 Avg. – 465 Cases/Year

19. Annual Stats – Five Years • Total Restitution – $446,541.92 • Total Community Service Restitution $3,395,347.51

20. Supplemental Environmental Projects (S.E.P.s) • Both the City of Houston and Harris County have S.E.P. Accounts • Corporations perform projects through Pre-Trial Intervention Agreements • Penalties – Fines + S.E.P. Contributions • Total S.E.P. Contributions – 2004-2009 $2,435,650.00

21. 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

22. S.E.P. Recipients • Galveston Bay Foundation • The Children’s Museum • Keep Houston Beautiful • Harris County – Ozone Monitors • City of Houston – Hybrid Vehicles and Park Projects

23. Initiative – Back Log of Cases • Beginning of 2009 – 215 Cases • As of March 1st – 139 Cases • We filed 424 new cases in 2009 • We handled 481 cases in 2009

24. Other Initiatives for 2009—2010 • Apartment Complex Sewage cases • Power/Pressure Washing Cases • Ship Channel Initiative – Boat Patrols

25. Training & Education • City of Houston Seminars (NEET) • Waste Transporter Seminar • Power/Pressure Washing Seminars • Apartment Complex Sewage Issues • Automotive Industry Seminar • HCPHES Training • H-GAC Environmental Roundtables

26. Training & Education • TCEQ Basic Environmental Course • TELEA Conference • SEEN Conferences • Our office is an agency member representative for TDCAA • FLETC (Advanced Environmental Crimes Course – Two Weeks) • NDAA Courses

27. Conclusion • 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

28. Miscellaneous Items • Mens Rea (Culpability) • Intentional or Knowing Violations • “with respect to conduct” (Texas law) • Ahmad v. United States (Federal law)

29. Public Welfare Doctrine • Strict Liability Offenses • Water Pollution (Chapter 7.147, Water Code) • Illegal Dumping (Chapter 365, H&S Code) • Criminal Negligence • Corporations – Probation???

30. 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.

31. Water in the State • Drainage ditches Watts v. State, 140 S.W.3d 860 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d) • Sanitary sewer lines McGee v. State, 923 S.W.2d 627 (Tex.App.—Houston [1st Dist.] 1995, pet. ref’d)

32. QUESTIONS??? Roger A. Haseman Assistant District Attorney Chief, Environmental Crimes Division Harris County, Texas 713-755-5834 haseman_roger@dao.hctx.net