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U.S. Department of Justice to the National Criminal Justice Reference SeNlce (NCJRS). Further reproduction outside of the NCJRS sY$iem requires permission of the ..-.owner. U.S. Department of Justice Office of Justice Programs Natiollal/llstilllte of Justice

Prosecuting EnvironlDental • CrilDe LosAngeles County

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Prosecuting EnvironlTIental Crillle: Los Angeles County by Theodore M. Hammett and Joel Epstein The public recognizes the severity of environmental crimes. More than a decade ago, a Bureau of Justice Statis­ tics survey found that Americans be­ lieved environmental crimes to be more serious than a number of "tradi­ Environmental crime is a serious prob­ tional" crimes such as burglary or bank robbery. I More recently, a 1991 lem for the United States, even though the survey revealed that 84 percent of Americans believed that damaging the immediate consequences of an offense may environment is a serious crime, and 75 not be obvious or severe. Environmental percent believed that corporate offi­ cials should be held personaIIy respon­ crimes do have victims. The cumulative sible for environmental offenses costs in environmentc:d damage and the long­ committed by their finns.2 But despite increased public concern, pollution range toll in illness, injury, and death rnay still threatens public health and jeopar- be considerable. dizes the ecological balance. • The EnvironlnentaI Regulation Paradox Over the past 20 years environmental laws covering hazardous waste, toxic riminal prosecution of environ­ gies. This Program Focus examines one substances, and air and water pollution mental offenders by local authori­ such strategy-the Los Angeles County have become more complex and strin­ ties has emerged as an important C Environmental Crimes Strike Force. This gent. But paradoxically, the very laws new strategy for combating env ironmental coordinated approach to investigation and crimes, Law enforcement and prosecu­ prosecution of environmental crime com­ and regulations designed to protect the torial agencies generally believe that suc­ bines the resources of two groups­ environment may have contributed in cessful criminal prosecution--even just regulatory and law enforcement agencies. several ways to increasing the inci­ the threat of prosecution-is the best way Although these agencies initially had dif­ dence of environmental violations. to punish violators and deter others from fering perspectives on the problem, they committing similar offenses. have been turned into a potent force in the First, because regulated businesses growing struggle against this type of have found it increasingly expensive In contrast, regulatory agencies tend to offense. Many aspects of this pioneering to comply with the new statutes, more focus on achieving compliance with envi­ program may be relevant to jurisdictions ronmental regulations and remedying en­ and more are avoiding these costs, wishing to develop environmental crime vironmental damage. As a result, they even if it means violating the law. units and could help them to develop simi­ emphasize obtaining the cooperation of Although there are still numerous in­ larly aggressive approaches to environ­ the regulated community, as much as is stances of "midnight dumping" (ran­ mental crime. possible. If enforcement action is neces­ domly dumping hazardous materials sary, they generally favoradministrativeor or waste by the roadside or in vacant civil procedures. Michael J. Russell lots), increasing numbers of businesses The National Institute of Justice supports Acting Director are consciously and systematically the search for new law enforcement strate- National Institute of Justice violating environmental laws to save • money and increase profit margins.]

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Second, environmental offenders and relationships fostered by the Strike Origins and their defense counsel are becoming Force, member regulatory agencies, more sophisticated in their methods. previously reluctant to refer matters Organization For example, a large number of firms for criminal prosecution, have them­ The Strike Force was first conceived have learned to shield their involve­ selves become strong advocates of under then Los Angeles City Attomey ment in illegal activities through the criminal enforcement. Ira Reiner in the early 1980's. When use of intermediaries and dummy cor­ porations, and many environmental defense attorneys are former prosecu­ tors who know the laws and are adept Exhibit 1. Los Angeles County Environmental Crimes Strike Force at using procedural techniques to pro­ tect their clients. County of Los Angeles City of Pomona Such actions show that regulation 1. Los Angek!s County District 12. Fire Department, Fire Prevention Attorney's Office Environmental alone is not always enough to protect Bureau. Crimes/OSHA Division. the public and the environment. The stigma of criminal indictment and the 2. Hazardous Materials Control City of Santa Monica threat of criminal penalties, including Program of the Los Angeles County Fire Department (formerly in Los 13, Industrial Waste SeCtion. .carceration, are increasingly viewed Angeles County Department of as necessary deterrents to environmen­ Health Services). tal criminals. City of Signal Hill 3. Los Angeles County Department 14. Police Department Hazardous Passage of criminal penalties for envi­ of Public Works. Materials Unit. ronmental offenses has made local prosecutors equal partners with the City of Los Angeles Regional Agencies regulatory agencies that had been pri­ 4. City Attorney's Office, Environ­ 15. Los Angeles County Sanitation marily responsible for enforcement. Districts. And in a handful of jurisdictions, mental Protection Section. prosecutors, investigators, and envi­ 5. City Fire Department, Under­ 16. South Coast Air Quality Man­ ronmental regulators have forged ground Tank Unit. agement District, Enforcement Division. innovative and effective strategies for 6. Port of Los Angeles Police. identifying and punishing environmen­ 7. Los Angeles Police Department. tal offenders. One of the first local State of California 8. City Sanitation Enforcement programs to create a team approach to Division, Industrial Waste 17. California Highway Patrol, environmental crime prosecution was Environmental Crimes Unit. Operations. " the Los Angeles (LA) County Envi­ 18. California State Department of ronmental Crimes Strike Force. Fish and Game, Wildlife Protection. City of Long Beach Under the leadership of the Office of 19. California State Department of Health Services, Toxic Substances the District Attorney (DA), the Strike 9. Department of Health and Human Services, Hazardous Materials Control Division and Toxic Sub­ Force has sent a clear message to pol­ Division. stances Control Program. luters that their acts will no longer be tolerated and that, unlike much admin- 10. Long Beach Police Department. ~trative and civil enforcement, crimi­ 11. City Prosecutor. _al prosecution really hurts. As a result of the personal and institutional

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Reiner was elected district attorney in Attorney's Office, the Hazardous Ma­ The "Eyes and Ears" 1984, he took the Strike Force concept terials Control Program (HMCP) of of the Community with him to the DA's Office. Then the LA County Fire Department, the California Highway Patrol (CHP), and Former District Attorney Reiner's consisting of five key agencies, it was commitment to environmental pros­ known as the Hazardous Waste Strike the Los Angeles Police Department (LAPD). ecution marked him as a pioneer. Per­ Force. In 1989 it was renamed the ceived as somewhat risky at first, Los Angeles County Environmental The Strike Force is now led by the environmental prosecution was a non- Crimes Strike Force to reflect the Environmental Crimes/OSHA (Occu- traditional area for local prosecutorial group's concern with all aspects of the pational Safety and Health Adminis- activity, in part because of the chal- environment.4 tration) Division of the Los Angeles lenges posed by environmental cases. The Los Angeles County Environmen­ County District Attorney's Office At first glance, many environmental tal Crimes Strike Force now includes (exhibit 2). Michael Delaney is head offenses may not seem to be crimes at permanent representatives from almost deputy of this division (at the time of all. The frequent absence of "smoking 20 State and local law enforcement this research, David Guthman was gun" evidence often requires that pros- and regulatory agencies (exhibit 1). head deputy). The district attorney ecutors rely on expert witness testi- Four of the five original agencies fOlm continues to provide financial and mony and circumstantial evidence to its core: the LA County District logistical support to the Strike Force demonstrate the severity of the envi- r-______e_f~_o_r_t. ______ro_n_m __ e_n_ta_l_o_f_D_e_n_se __ a_n_d_l_in_k __ tl_le_d_e_- __~~

Exhibit 2. Los Angeles County District Attorney's Office Partial Organizational Chart

District Attorney

Organized Crime Anti-Terrorism Division

Bureau of Branch Bureau of Bureau of Bureau of Special Bureau of Family and Area Operations Central Operations Investigations Operations (Director) Support Operations (General Crimes) (General Crimes)

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Int~ragency Tensions: fendant to the crime. Thus, the Strike Formal Versus Informal Methods of Operating Force's emphasis on coordination and The policy of the LA Courtty Strike Force contentious Ci\ses. They say that the proc­ use of all available resources has been has been to rely on infoffilulleadership and ess of hammering out fomlal agreements vital to the success of its prosecutions. interagency cooperation rather than fomlal would in itself help to resolve internal designation of one agency as the "lead" tensions. The Strike Force approach allows agency. However, some members of the Certain types of cases may be pa11icularly members to concurrently assess health SlrikeForce disagree with this policy. Their divisive for the Strike Force, but propo­ risks, mobilize regulatory agency in­ thinking is that some cases would move nents of the current LA approach believe volvement, and obtain evidence for more efficiently if one agency were asked that designating a lead agency could dis­ to take charge. criminal prosecution. One deputy dis­ ruI't the cooperation that is the key to trict attomey in the Environmental For example, an asbestos case could create Strike Force operations .. If formal agree­ Crimes/OSHA Division identified problems for the group because it is likely ments existed, they say defendants could three elements essential to the Strike to involve both ail" pollution and hazardous use "motions for production" as a dilatory Force approach: waste disposal, both of which are addressed tactic at the discovery phase of a prosecu­ by different Strike Force agencies. Critics tion, Creation of such agreements could • A law enforcement component to of the Strike Force's style argue that for~ also be counterproductive. They would conduct criminal investigations. malizing roles ancl relationships through necessarily be drafted by committee, 1.1 memorandums of understanding or simi lar process that might threaten rather than • A technical component with a documentS would make for smoother enhance personal and interagency rela­ capacity to conduct health risk assess­ Strike Force operations on such potentially tionships within the Strike Force. ments and collect samples at the scene of alleged violations .

• A laboratory component to conduct analyses of samples, maintain the chain of custody of evidence. and provide expert testimony at trial,

The Environmental Crimes/OSHA Division head deputy encourages every public agency with an interest in criminal enforcement to participate in the Strike Force. He believes that even if an agency never generates a case, its demonstrated interest in the work of the Strike Force raises envi­ ronmental consciousness and multi~ plies the number of "eyes and ears" in the community. Many Strike Force investigations begin with tips from employees of businesses or other citizens...... "" <' 1'. - ;ai,,,,, . " .. ." ~

Los Angeles Coullly is still plagued hy "midnight dumping"-ha;ardous materials alld waste • ahal/dolled ill \'(I('a/ll 101.1' or by tlze side ofthe road. • • ~ ~. ..'...._ ,",. '., • r ..' • 1 : .' • ~. : "~' ..... • • ~.. ... :

Program Focus 5 PROGRAM FOCUS

Commitment and • Intent of the violator. Finally, the county sheriff's depart­ ment provided aerial photographs of Cooperation • Amount and toxicity of the sub­ the site. All four agencies worked The Strike Force has always relied on stances involved. smoothly together on the investigation. the commitment of participants and on In this case charges were filed and • Environmental record of the indi­ informal interagency cooperation, convictions obtained. vidual or firm. rather than a formalized structure, to enforce group decisions. In the early Prosecution at the National and Procedures for sharing fines and crimi­ International Levels. In some investi­ days, the Strike Force depended on nal penalties in hazardous waste cases peer pressure to motivate follow­ gations, international as well as among participating agencies are de­ interjurisdictional coordination may be through. If an agency failed to live up fined by statute in California.s Being to its commitments, it would draw a required. Today it is not unusual for able to 'count on realizing revenues environmental criminals to transport critical eye from other members. To from successful prosecutions helps to this day, the Strike Force does not hazardous waste across State or inter­ reassure agencies that might otherwise national borders for disposal in places have memorandums of understanding be reluctant to involve themselves in or other written agreements. with less stringent environmental en­ the investigatory process. forcement. Another Strike Force case reveals the lengths to which criminals. In many jurisdictions across the coun­ A Potent Weapon try, regulatory agencies must decide will go to evade strict environmental The ability of the Strike Force to on their own whether a reported vio­ enforcement and the multijurisdiction- coordinate all aspects of enforce­ lation requires evidence gathering al efforts needed to apprehend them. ment-from detection of a suspected for criminal prosecution or simply environmental violation to conviction foIlowup inspection and administrative In May 1990 Raymond Franco and of the offender-makes it a potent action. However, the LA County David Torres became the first defend­ weapon against environmental crime. Strike Force facilitates quick and effi­ ants named in felony indictments According to former District Attorney cient decisionmaking in such circum­ under Federal environmental law for Reiner, "The success of the approach stances. For example, if a new the disposal of hazardous waste across is ultimately validated in court with investigation is referred to the Strike international borders. The two men the company fined and responsible Force for surveiIlance, Sanitation Dis­ were involved in a scheme to transport corporate officials jailed for their trict staff may be dispatched to collect hazardous waste from southern Cali­ acts. "6 samples and have them analyzed. If fornia for illegal disposal in Tijuana, Mexico. In what has been hailed as a the analysis is positive, a deputy pros­ Prosecutio1l at the Local Level. An ecutor can draft a search warrant, and model Strike Force operation, Federal, example of the Strike Force at work State, county, local, and Mexican gov­ within a few days the illegal discharge began when the Hazardous Materials of pollutants can be stopped and evi­ ernment officials cooperated in a long, Control Program conducted a routine complex inquiry. Investigation and dence gathered for prosecution of the inspection of an equipment rental firm. violator. One participating agency, prosecution of the case required the Underground storage tanks were dis­ cooperation of the Federal Bureau of the Hazardous Materials Control Pro­ covered on the property, and an inves­ gram, uses the following criteria to Investigation, the Environmental tigation was initiated. The Department Protection Agency, the Department decide whether an incident should be of Public Works (DPW) was called in handled administratively or referred of Justice, the U.S. Customs Service, to search for buried waste with a back­ the State Department, Los Angeles to the District Attorney's Office for hoe. The County Sanitation Districts prosecution: and Orange County officials, and the joined the investigation when it was 7 Government of Mexico. • determined that sewer connections and • Seriousness of the violation. sewer discharges were involved.

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At the time of the Franco indictment, work on specific cases. The goal was Strike Force prosecutions. But other former District Attorney Reiner re­ to maintain both the intimacy and the agencies-including the Huzardous marked, "We have to be as diligent in effectiveness of the smaJl weekly Muterials Control Program, the Los stopping the flow of toxics south of meetings. Angeles City Sanitation District, the the border as we are diligent about Los Angeles County Department of [stopping] the flow of drugs coming Environmental Crimes/OSHA Divi­ Public Works, the Los Angeles nnrth. In both cases it comes back to sion prosecutors believe that the large County Sanitation Districts, and the haunt US."K The case received con­ monthly meetings serve as a clearing­ South Coast Air Quality Management siderable attention in the press and house for slu\ring information and District (AQMD)-play important represents an important example of cultivating professional contacts. Par­ roles as well. interjurisdictional cooperation in the ticipating agencies use the collective fight against environmental crime. It resources of the group to identify envi­ Environmental Crimes/ also provided the impetus for en­ ronmental violations and compile "en­ OSHA Division hanced Federal and State multi agency vironmental rap sheets" on suspects. Eight full-time criminal investigators efforts to crack down on the illegal In tum, members can call on the con­ are assigned to the Environmental disposal of American hazardous waste siderable investigative and prosecu­ Crimes/OSHA DivisIon of the District in Mexico. torial r~sources of the Strike Force that Attorney's Office. Prosecutors in this can be rapidly mobilized against a unit believe that environmental crimes ee Los Angeles County district attor­ violator. However, some Strike Force are crimes of violence against the en­ ney feels that his office's active par­ members think that the dual meeting vironment and ultimately against the ticipation in the Environmental format has not worked well. Critics public, which must be punished. Be­ Protection Agency-funded Western believe participants spend too much cause these prosecutors thoroughly States Hazardous Waste Association time talking about minor cases, which understand the legal requirements for helps to enhance muItijurisdictional should be referred to the DA' s general obtaining a conviction, other agencies cooperation. crimes division, and discussing gen­ in the Strike Force naturally turn to the eraL issues, which are not particularly DA's Office for leadership. Interagency Relationships valuableY 'When the Strike Force was small, The Los Angeles County DA employs representative_ held weekly meetings Agency representatives generally a vertical prosecution model in envi­ to discuss prespecified cases and agree, though, that the key to the ronmental cases. When a new case assign specific tasks for the upcoming Strike Force's effectiveness has been comes into the unit, an Environmental week. At subsequent meetings, agen­ the development of close, long­ Crimes/OSHA Division attorney is cies were expected to bring the Strike standing relationships. Established assigned on the same day the case is Force up to date on progress with professional relationships mean that received. Barring a rare emergency assigned tasks. Soon after his appoint­ members know whom to call to get requiring reassignment, the assigned ment as head deputy of the Environ­ help on a case and that they them­ prosecutor stays with the case all the mental Crimes/OSHA Division in selves expect to be called for informa­ way through adjudication and final t 988, David Guthman decided that the tion and assistance. appeal. large number of agencies involved made weekly meetings unwieldy. He The Role of I<::ey Civil Versus Criminal Prosecution. instituted monthly meetings of the Agencies Although the DA's Office has both entire Strike Force to discuss genera) civil and criminal jurisdiction, deputy issues and more frequent-sometimes The LA County District Attorney's prosecutors use civil proceedings only Anost daily-meetings of small Office plays perhaps the most promi­ when criminal remedies are unavail­ ~oups of agency representatives to nent role of any member agency in able. Environmental Crimes/OSHA

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Obstacles to Prosecution

Prosecutors who wish to expand their role • Some judges are not well versed in to bargain away the deterrent value of in environmental crime prosecution will environmental laws or sensitive to the seri­ a criminal proceeding. most likely have to overcome some rather ousness of environmental crimes. They fOimidable attitudinal obstacles and mis­ may also believe that environmental cases City Versus County Versus State conceptions. The exp~riences of the LA are more appropriately handled by civil or Jurisdiction. Jurisdiction over envi­ Strike Force may help prosecutors in other administrative means than by criminal ronmental matters in Los Angeles jurisdictions charta path through this com­ prosecution. In California, judges' more County is complex. City attorneys plex legal territory. positive attitudes toward environmental prosecutions may have been influenced by have jurisdiction over criminal misde­ • Some prosecutors feel unprepared to several factors, including the high visibility meanors committed within the Los tackle environmental cases, which are and potential political impact ofsome cases, Angeles city limits and in eight other perceived as hopelessly complicated and the LA district attorney's commitment to cities in Los Angeles County. How­ impossible to win. The Environmental prosecute environmental cases, and the po­ ever, the county district attorney has Crimes/OSHA Division addressed this tential for reelection challenges or recall felony indictment authority throughout obstacle by offering special training in this petitions that may result when a judge nontraditional area and by hiring attorneys the county. The county DA's author­ ignores issues of public concern. who expressed a serious commitment to ity extends to misdemeanors as well working on environmental prosecutions. • Individual juries may be reluctant to outside these nine cities. convict a community'S business leaders • Many corporate defendants regard civil and significant employers if the alleged This complicated division between the penalties and one-time cleanup costs as environmental damage does not have an county and its municipalities often • part of the cost of doing busi.ness. The LA immediate deleterious effect. The LA Strike requires that criminal investIgation Strike Force addressed this obstacle by Force seeks to raise public consciousness findings be shared across jlll'lisdictional instituting a policy of using civil proceed­ by emphasizing the serious consequences ings only when criminal remedies are not lines. For example, in many cases of the offenses it investigates and available and by refusing to accept defense what begins as a suspected misde- prosecutes. attorneys' requests for a civil settlement in meanor may turn out to merit a felony exchange for a more serious criminal indictment. Therefore, the various charge. prosecutorial authorities must stay in close contact.

The county district attorney's relation­ ship with the California Attorney Gen­ Division attorneys emphasize that Moreover, in many cases the fines and eral is considerably more limited than criminal prosecution is more effective penalties obtainable through criminal with city attorneys because the State as a deterrent than administrative prosecution are as large or larger than Attorney General has no original or civil proceedings. Former head the available civil remedies. criminal jurisdiction. His office may deputy Guthman adds that if the de­ prosecute cases declined by the DA sired outcome is to obtain cleanup or Prosecutors in Los Angeles County or from which the DA has recused remediation of an environmental prob­ have crafted criminal penalties that himself. lem, the prosecutor can use the threat make cleanup of a site 01' remediation of a prison sentence to motivate a of an environmental problem a condi­ Hazardous Materials defendant to act-a strategy not avail­ tion of probation. Although defense Control Program (HMCP) able in civil proceedings. attorneys frequently propose a civil Because of its mandate to regulate settlement to avoid a criminal case generators of hazardous waste in Los Los Angeles deputy DA's also note against their clients, the policy of the Angeles County, HMCP has been the that criminal prosecution in the county DA's Office is to tum down such of­ regulatory agency most heavily in- • is generally faster than the civil route. fers. By doing so, prosecutors refuse volved in the Environmental Crimes

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Strike Force.1O Unlib other regulatory often not clear or fully implementable scholarship fund for students from the agencies, which focus on compliance in practice. Ambiguity occurs when high school serving the evacuated through administrative and civil proce­ cases involve both generation of haz­ area. dures, HMCP is not reluctant to pursue ardous waste and its transportation, criminal prosecution for the pUl/ish­ storage, and disposal-as they often PCB's and Asbestos. This case in­ ment of offenders. HMCP's pemlanent do-and the various aspects of the volved close coordination of the Strike Force representative Bill Jones investigation are not easily separable. sheriff's department and HMCP. After has been involved since the very The following cases illustrate why HMCP conducted an initial investig,l­ beginning. HMCP can become involved in all Hon, mUltiple search warrants were stages of an environmental action. obtained for the property of the de­ Each month HMCP responds to 130 fendant, whose two companies were to 140 incidents (about 1,500 per year) Chlorille Toxic Cloud. This case, suspected of unlawful disposal of involving hazardous materials or involving the manufacture of chlorine PCB's and asbestos. The sheriff's hazardous waste. In 1990 HMCP tablets for swimming pools, originated department provided a helicopter for investigative section referred 360 when HMCP responded to an emer­ aerial photography of the site. Suc­ criminal complaints for prosecution. gency involving toxic clouds. In fact cessful indictment and conviction of Its investigators may conduct both the the problem started long before, dur­ this offender hinged on the coordi­ criminal and the technical aspects of ing the manufacturing process, when nated efforts of the Strike Force.t3 an investigation. They also make their chlorine tablets broke and pieces fell own detennination as to whether to the floor. Company employees Corrosives ill a Pit. This case began criminal investigation of a complaint swept them up with sawdust and with a tip that a company had been • dumping degreasing solvents and cor­ is warranted. grease and stored the waste on the premises in barrels and deteriorating rosives into a pit on its property for 15 In 1990 HMCP referred 53 incidents cardboard containers. Because the or 20 years. A search warrant was for prosecution. This represented al­ containers were in poor condition, obtained, and samples taken from the most double the number of cases (28) moisture got into the mixture, causing I site revealed the presence of hazardous referred in 1989. Moreover, in 1990 it to combust. The resulting fire cre­ I wuste. In addition, aerial photography the agency participated in the execu .. ated toxic clouds requiring some showed dead vegetation surrounding tion of 18 felony search warrants 28,000 residents to evacuate the area. the pit. The company was convicted of and was involved in hazardous waste South Coast Air Quality Management illegal disposal of hazardous waste and prosecutions that netted $2.5 million District investigators joined HMCP in failure to comply with manifesting in fines. The agency's aggressive the investigationP procedures. 14 support of criminal prosecution has led to some "turf" battles with the Although the incident involved dis­ Re-Use of C01ztamilzated COlltainers. LA County DA's Office over re­ posal of hazardous waste into the air, This case involved a refuse transfer sponsibility for followup criminal the Strike Force decided to prosecute facility that accepted asbestos. The investigations. I I the company under a California haz.­ containers used by the company to ardous waste Jaw intended to address coliect asbestos were not supposed to HMCP's authority covers hazardous land disposal. The prosecutor relied on be opened once the materials were waste generators within Los Angeles the creative theory of "disposal by collected. Because of the volume of County, but the California Department emission" to persuade the court of the work, however, the facility was regu­ of Health Services has responsibility defendants' culpability. Company larly re-using the containers after for regulating the State's transporta­ executives received 6-month prison employees had dumped the asbestos­ tiOIl, storage, alld disposal facilities. temlS and were fined $659,000, of contaminated waste elsewhere at the • Simple in principle, the distinction is which $259,000 was to be used as a facility. HMCP gathered evidence of

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the practice by taking samples of the Until recently, HMCP investigators the matter through administrative pro­ dumped material and photographs of routinely searched, without a warrant, cedures. On the other hand, if the the transfer facility. The defendant the premises of firms suspected of agency believes the discharge is part was fined $250,000. 15 Recently a new environmental offenses. However, a of a pattern of deliberate illegal action has been filed against the com­ State court put an end to this practice activity, the case is referred for crimi­ pany and certain of its officers. when it ruled that such searches vio­ nal prosecution. lated the fourth amendment prohibi­ Dumpillg Waste From Paillt Prod­ tion against unreasonable search and The City Sanitation District monitors IIcts. This case grew out of an HMCP seizure. In a decision potentially af­ many sewer discharges by LA busi­ investigation of a suspect who rented fecting all regulatory agencies, the nesses during graveyard shifts. Investi­ Ryder trucks, loaded them "'lith haz­ court ruled that the fourth amend­ gators typically "bracket" the target ardous waste from paint products, and ment's search and seizure provisions company by monitoring water quality then abandoned the trucks. The inves­ do apply to health officers. Now both upstream and downstream of the tigation was simplified by the fact that health officers must obtain either the suspect facility. This technique makes the suspect rented the trucks in his party's consent or a standard search it possible to identify pollutants being own name. He was convicted and sen­ warrant before conducting a search. discharged by the bracketed firm. tenced to a 32-month prison term. The This decision seemingly removes the DA also sought indictments against advantage previously held by health On a regular basis, roughly half of the businesses that hired the suspect and other regulatory agencies over law City Sanitation District night crew's • because of evidence that these compa­ enforcement agencies in criminal time is devoted to enforcement and IS nies knew-or should have known­ investigations. I? Strike Force work. When possible, that he planned to dispose of the City Sanitation District investigators hazardous wastes illegally.16 Los Angeles City also use the so-called "grab sample" Sanitation District method of collection. This method Unlicellsed Transporters Stillg. This involves collecting the entire dis- The Los Angeles City Sanitation Dis­ case involved a "sting" operation of an charge sample within a IS-minute trict is responsible for investigating unlicensed transporter who offered period. The agency has found that illegal discharges into the city's sew­ businesses cheap-and illegal--dis­ combining the bracketing and grab ers. Monitoring of a company's sewer posal of their hazardous waste. The sample methods is most likely to gen- discharges may be triggered by a tip transporter came to the attention of the erate samples and laboratory analyses from a disgruntled employee or con­ Strike Force after a series of emer­ that support the prosecutor's case. cerned citizen or may be routine, gency incidents to which HMCP re­ based on a pattern of prior problems 01' sponded. Using an abandoned business On its own the City Sanitation District notices of violation. The businesses location, HMCP and DA investigators does not conduct criminal investiga­ that most commonly violate city sewer concocted some marginally hazardous tions. Instead, the agency notifies the laws appear to be electroplaters and waste and then contacted the suspect, Los Angeles County District Attor­ metal finishers. who came out and offered his services. ney's Office and the Los Angeles Police Department of any suspected After the suspect's bid was accepted, The City Sanitation District decides criminal activities fol' followup. investigators surreptitiously video­ how to proceed after determining taped him loading the waste and haul­ whether an incident seems to be a one­ Los Angeles County ing it away. The suspect's truck was time or accidental discharge or part of followed, and he was apprehended a deliberate pattern of illegal activity. Department of Public Works preparing to mix the waste with other If the agency determines that a dis­ The Los Angeles County Department waste for illegal disposal. He was later charge is a one-time or accidental of Public Works (DPW) is responsible • indicted and convicted. incident, the agency generally hancHes for two aspects of hazardous waste control:

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Toxic Tickets In the future regulatory agencies may • Regulating industrial waste through Los Angeles County be able to expand their criminal en­ sewer and water treatment facilities. Sanitation Districts forcement activities in new directions. The agency's jurisdiction for waste The Los Angeles County Sanitation For example, the "toxic ticket" is a local covers all of the unincorporated areas Districts are independent agencies that innovation that should be soon in place. in Los Angeles County plus 40 of the are not part of county government. The toxic ticket will enable health offic­ 88 cities. They are responsible for monitoring ers to issue the equivalent of a traffic industrial discharges into sewers in ticket for minor hazardous waste and • Overseeing the removal, upgrading, oth~renvironmental violations. During most of Los Angeles County. exclu­ and replacement of underground stor­ sprmg 1993, under a State pilot pro­ sive of the city of Los Angeles. age tanks. The agency's jurisdiction gmm, eight California counties will The County Sanitation Districts also for storage tanks covers all of the un­ begin using toxic tickets to charge vio­ operate a small number of sanitary incorporated areas in Los Allgeles lators with lesser environmental landfills. County plus 79 of the county's 88 offenses. cities. The County Sanitation Districts have authority to undertake their own crimi­ DPW operates a small number of nal enforcement of misdemeanors. water treatment plants of its own and Nickel Contamination. In another However, if they uncover evidence of shares joint authority over numerous case, an informant called HMCP to a felony, the districts notify the Los other sewer operations with Los report an alleged illegal discharge into Angeles County District Attorney's Angeles City and County Sanitation a sewer. County Sanitation District OFfice. and Strike Force activity is Districts. investigators were asked to take • triggered. In 1990 the County Sanita­ samples that revealed a felony-level tion Districts referred cases to the ~ co.mputerized program triggers rou­ 17 concentration of soluble nickel. A tllle IIlspections, but the department Los Angeles County district attorney search not only confirmed that the also acts on complaints from indi­ for criminal prosecution. All but one suspected company was discharging vidual citizens. In addition, DPW re­ were prosecuted. the soluble nickel into the sewer. but sponds to suspect activity reported by also found that the firm hud been dis­ ~etection of levels of discharge violat­ its own divisions, such as those con­ posing of the same waste into the mg State hazardous waste regulations cerned with roads and flood control. ground. Investigators also discovered a ~s usually based on observation by memorandum to the company's presi~ Il1spectors or the monitoring of sewers. At any given time, DPW staff are typi­ dent stating that legal disposal of this The County Sanitation Districts often cally involved in 10 to 1:'5 intensive material was becoming prohibitively work closely with HMCP, the Califor­ investigations. Nineteen staff inspec­ e.xpensive and urging the company to nia Highway Patrol, and the City Sani­ tors handle a caseload of approxi­ fmd a cheaper method of disposal. The tation District. mately 1,000 open notices of violation. government's strong case prompted Although the primary goal of the Illegal Sewer Discharge. In one case the company to plead guilty and pay a agency is to obtain compliance, DPW 19 the County Sanitation Districts were $500,000 fine. staff believe that unrepentant "bad able to obtain samples that revealed a guys" should be criminally prosecuted. Creative Pe1lalties. In U:J early case, radiator shop was both pumping haz­ As a result, they do not hesitate to brought by the city attorney's Strike ardous waste into a sewer and Ship­ refer cases to the DA's Ortice. In addi­ Force before it changed its name and ping it to an unlicensed disposul tion. DPW regularly participates in moved to the County DA's Office, n fucility. As part of a joint operation, ~trike Force investigations by provid­ number of agencies, including the Los the CHP followed u truck from the IIlg buckhoes und other heavy equip­ Angeles County Sanitation District5, company to the disposal facility and ment to excavate sites. investigated the discharge of wastes arrested the transporter. • through mUltiple sewer connections . . '. .' . . .' '. '. .' .o. .. '." r ~ • .;. ...'. -. .' • . : Program Focus.•'­ 11 ---=~_PROGRAM FOCUS •

The case, against a plating finn, was agement District must monitor the are often involved in activities that one of the first in which a "creative activity. cross city and county lines. penalty" was used. As part of its sen­ tence, the defendant company was Role of Other The CHP's Hazardous Materials In­ required to place a notice in the Wall vestigation Unit has a proactive en­ Street JOl/rnal admitting that it had Law Enforcement forcement strategy of identifying and violated the law. 20 "Toxic tickets" (see Agencies apprehending violators before they box on page 11) may become another "successfully" dispose of hazardous To ensure that all criminal and scien­ creative punishment. wastes. Proactive enforcement means tific aspects of an investigation are identifying likely violators and catch­ covered, prosecuting attorneys from South Coast Air Quality ing them in the act of transporting the Environmental Crimes/OSHA hazardous waste for illegal disposal. Management District Division are often teamed with investi­ Stopping illegal dumping before the Tn mest parts of the country, Federal gators from other law enforcement and waste hits the ground, enters the sewer agencies take the lead in air pollution investigative agencies. Among them system, or contaminates some other cases. However, be,::ause of southern are the California Highway Patrol's sensitive environment saves taxpayers California's severe smog problem, Los Hazardous Materials Investigation significant cleanup costs and spares Angeles County has undertaken crimi­ Unit, the Los Angeles Police Depart­ the environment possibly severe, nal enforcement of air pollution laws. ment, and the Los Angeles County irreversible hann. With a staff of 14 investigators plus an Sheriff's Department. air pollution prosecutor, the South, Coast Air Quality Management DIs­ The Frallco Case. The 1990 indict­ California Highway Patrol ment of Raymond Franco and David • trict monitors air pollution levels in The California Highway Patrol's Haz­ LA County. Torres for conspiracy, illegal transpor­ ardous Materials Investigation Unit tation, illegal disposal, and illegal has been a key contributor to numer­ AQMD refers all criminal cases to the export (discussed on page 6) demon­ ous Strike Force cases. The CHP Los Angeles County DA's Office, strates the important role the CHP Unit's Southern Division, based in Los reserving civil and administrative mat­ plays in the Los Angeles Strike Force. Angeles, consists of one sergeunt and ters for its own prosecuting attorney. As part of its criminal investigation, two investigators. This group has in­ In each case AQMD's chief prosecutor the CHP conducted surveillance of vestigated more than 300 cases since makes the decision as to whether to Franco's California plant as well as his 1985, including 42 in 1990 and 73 in proceed civilly or criminally. Cases Mexic,m-registered trucks. The break 1989. declined by the DA may be sent back in the investigation came when CHP officers were staking out the plant. to AQMD or to another regulatory California law prohibits the unlicensed They observed Franco and others load­ agency for civil action. transport of hazardous waste over ing and concealing 55-gallon drums on California's highways and the delivery Most of the Strike Force incidents in the Mexican-registered trucks. Subse­ of hazardous waste to unauthorized which AQMD has been involved have quently, the trucks, driven by Mexican storage or disposal facilities. Although been asbestos cases, and many of these nationals, including David Torres, the focus of CHP investigations is on cases began with AQMD air pollution were followed as they headed toward illegal transportation, the unit is also monitoring activity. For example, in the Mexicall border. One of the trucks involved in Strike Force cases with Los Angeles County, a pern1it is re­ was stopped just short of the border, disposal as well as transportation quired for any demolition that risk~ and the drher was. arrested. Labora­ elements. With jurisdiction over releasing "fugitive dust" into the mr. If tory analyses C)f samples taken from the State's highways, the CHP be­ asbestos or any other hazardous mate­ drums found on the seized truck comes involved because of cross­ rial is involved, the Air Quality Man- showed the presence of hazardous jurisdictional issues. As one CHP waste. officer commented, "the bad guys" • " . . . . .' . ~: . . ':..' ~. . 12 National Institute of Justice : ': ' • ~.".:' " .'. ~' • < ~ ~ ~ ", . ~ ".' .. • :.. , Q,' .' PROGRAM FOCUS

On the basis of the CHP's work, Fed­ Sanitation District were also involved eral officials joined the team. After in this case. In November 1989 the obtaining permission from the Mexi­ defendants were found guilty, fined can Government to conduct a search $25,000, and placed on probation for 3 of a warehouse owned by Torres in years.21 Tijuana, the FBI discovered additional incriminating evidence: drums of Laboratory highly volatile hazardous waste that Resources Franco had contracted to transport and dispose of for another California Most Strike Force laboratory work company. is done by the laboratory of the L08 Angeles County Sanitation Districts. LA County Sheriff's Although primarily a water quality Department and LA Police laboratory, it agreed to conduct other Department work for the Strike Force and commit­ ted one full-time technician to analyze Over the years investigators from sev­ materials for Strike Force cases. eral other municipal and county law ~nforcement agencies have been active Other available laboratory resources 10 the LA County Strike Force. At • include the city of Los Angeles labora­ The Los Allgeles COl/lilY Sallitation Districts' first the Los Angeles County Sheriff's tory (in cases developed by the City lahoratory has committed olle jul/·time technician to Department was heavily involved in Sanitation District), the California work 011 Strike Forct! cases. Strike Force me/llbers are pleased with rhe quality ojscn'ice prOl'ided. many aspects of Strike Force cases, Department of Health Services labora­ though it has reduced its primary role tory, and the Air Quality Management to providing helicopters for aerial pho­ District laboratory (for air quality against environmental offenders. By tography of specific sites. cases). In addition, the Strike Force adding indictment and prison sen­ turns to private laboratories if the pub­ tences to the range of enforcement The Los Angeles Police Department lic laboratories are backlogged or un­ actions, in effect "upping the ante," (LAPD) has established an environ­ able to provide the services needed. prosecutors send a message that envi­ mental crimes unit as well as a hazard­ According to Strike Force members ronmental violations are no longer a ous materials response unit. Both units cost of doing business that can be have been involved periodically in laboratory resources are sufficient, ~nd service is timely. There have been passed along to consumers. Strike Force cases, as have police very few, if any, problems with slow departments from other cities in the The prosecutions descrit--:d in this response time or the loss of samples. county. Program Focus demonstrate the largely untapped potential of coordi­ Cyanide in the Sewers. This case Upping the Ante nated mUltiagency action and criminal involved a company's systematic Both the American public and the prosecution in response to environ­ discharge of cyanide into Los Angeles Nation's environment have suffered mental crime. In fact, the LA Strike sewers during early morning hours and will continue to suffer serious Force has been remarkably successful: when inspectors were not on duty. harm from the acts of polluters. Inno­ LAPD brought in a surveillance van vative initiatives such as the Los An­ • About one-third of all matters and the suspects were photographed geles County Environmental Crimes referred to the Environmental Crimes/ ~eaving the company's building carry- Strike Force have significantly ad­ OSHA Division were formally investi­ ~ng hoses used to discharge wastes vanced the use of criminal sanctions gated, and approximately one-third of •mto the sewer. HMCP and the City

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Exhibit 3. Los Angeles County District Attorney, Environmental drug kingpin's arguments against a Crimes/OSHA Division: Disposition of Cases, 1987-1992 campaign to drive drug dealers out of a community. Criminal Defendants Total Days Average Total Year Cases With Jail Jail Time Sentence I Fines A Possible Model for Filed Sentence Other Jurisdictions As the number of local jurisdictions 1987 53 5 357 71 days $1,200,000 developing criminal environmental 1988 45 6 630 105 days 1,400,000 enforcement programs of their own 1989 50 7 1,170 169 days 1,500,000 increases, the experience gained by Los Angeles County could be useful. 1990 72 5 690 139 days 3,916,000 However, the LA Strike Force is 1991 38 13 3,043 234 days 1,718,395 unusual because of the number of 1992* 23 5 1,940 388 days 789,415 agencies involved, the aggressive pos­ ture of many of its members, and the *January through June. amount of financial and political back­ ing it receives. Therefore, the Strike those investigations resulted in crimi­ lated prosecutors, investigators, and Force model of Los Angeles County • nal charges. regulatory agency representatives to may need to be modified to fit other contribute their knowledge and ideas jurisdictions. • In 1990 the Division filed criminal freely. Their combined actions have charges against 107 defendants in helped to increase local corporate For example, some jurisdictions may 72 criminal cases (many of these accountability. find the informality of the LA Strike defendants were charged in multiple­ Force to be effective in the initial defendant cases). Of those, 80 defend­ No One Is Above the Law phase of an environmental enforce­ ants (75 percent) were convicted; the Some members of the business com­ ment program, but less so over time. majority were fined and not incarcer­ munity, however, have complained In such instances, formal memoran­ ated (exhibit 3). that LA's aggressive program of envi­ dums of understanding in which the ronmental enforcement has driven responsibilities of member agencies • As of 1991, more than 250 criminal some companies-and employers­ are clearly defined may help prevent convictions had been won for viola­ out of the county, but former head territorial battles from developing tions of environmental laws. deputy Guthman disagrees. In fact, in among participants competing for the Guthman's view the effectiveness of lead agency position. The environmen­ • As of April 1991, the Environ­ a particular enforcement strategy is tal prosecution program in Alameda mental Crimes/OSHA Division had closely related to the furor it creates in County, California, has adopted such approximately 600 open matters 22 the target population. an interagency agreement. (referrals), 150 open formal investiga­ tions, and 1,300 closed cases. Guthman emphasizes that the opinions Other jurisdictions may decide that the of business are-and should be­ primary purpose of an environmental The Strike Force experience shifted irrelevant to a prosecutor's decision crimes task force is to provide inter­ the focus of regulators from the about whether to pursue a particular agency training and foster interagency sole pursuit of administrative and indictment. In a similar vein, the Envi­ relationships, which could be accom­ civil proceedings to a greater emphasis ronmental Crimes/OSHA Division plished through temporary arrange- on criminal enforcement of environ­ former head deputy wonders if law ments. Then, after training has been .. mental violations. A climate of enforcement would be swayed by a provided and relationships have been _ cooperation and shared purpose stimu-

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established, relevant staff could work For further information about the Los 5. California Health & Safety Code informaBy as needed on specific cases Angeles County Environmental § 25192. without formal meetings with the Crimes Strike Force, contact the fol­ 6. Reiner, Ira. "Fighting Toxic Crime: A larger group. This approach was lowing: Michael Delaney. Esq., Head New Approach." Prosecutor's Brief adopted in central Florida by the Envi­ Deputy, Environmental Crimes/OSHA (1986): 1. ronmental Protection Forum estab­ Division, Los Angeles County District lished by the State attomey.23 Attorney's Office, Hall of Records, 7. United States v. Franco alld Torres. U.S. District Court, Central District, Cali­ 320 West Temple Street, Room 345, fornia. No. 90-3520-TlH. Support and leadership from the top of Los Angeles, CA 90012, (213) 974- the prosecutorial agency can be ex­ 5901; William Jones, Chief, Investiga­ 8. Statement made by fonner Los Angeles tremely helpful in the establishment tive Section Enforcement/Site Miti­ County District Attorney Ira Reiner at a and growth of an environmental en­ gation Units, Hazardous Materials news conference at the U.S. District Court forcement team. With commitment for the County of Los Angeles on May 10, Control Program, Los Angeles County 1990. from the top, member regulatory agen­ Fire Department, 5825 Rickenbacker cies, traditionally reluctant to refer Road, City of Commerce, CA 90040, 9. A few members believe that the in­ matters for criminal prosecution, can (213) 890-4063; or Sgt. Lance creased size may have reduced the collec­ become strong advocates of criminal Erickson, California Highway Patrol, tive spirit and foclIs of the smaller group. enforcement. Los Angeles County In addition, several agency representatives Southern Division, Investigation Unit, feel that if they talk freely about open • benefited from the pioneering efforts 437 North Vermont Avenue, Los cases, they risk having their investigations of its district attorney, and with a spirit Angeles, CA 90004, (213) 664-0695. "blown," and some believe that the Strike of working for the public good, repre­ Force no longer prioritizes cases or moves sentatives from city, county, and State Notes them along as quickly as it once did. In its agencies created a foundation of per­ 1. Celebrezze, A.J., et al. "Criminal En­ early years, the Strike Fmce focused on forcement of State Environmental Laws: major "impact cases." Today, according to sonal and institutional relationships. some members, the group is inundated They continue to build on their suc­ The Ohio Solution." Harvard Environmen­ tal Law Review 14 (1990):217, 218. See with all kinds of cases. some of which may cessfulmultiagency approach to com­ also Bureau of Justice Statistics "The Se­ not be worhl the attention of the Strike bating environmental crime. verity of Crime" Bulletin. Washington, Force. These critics feel that many of the D.C.: U.S. Department of Justice, 1984. minor or simple cases should be referred to About This Study the DA's general crimes division. 2. Arthur D. Little, Inc. "Environmental Damage Rated as Most Serious Among 10. Until the fall of 1991 when it moved TI:;s Program Focus was written by to the County Fire Department, the Haz­ Theodore M. Hammett, vice president, Business Crimes: Corporate Executives Should Be Held Liable, Survey Shows." ardous Materials Control Program was and Joel Epstein, analyst, at Abt Asso­ Press release, July 1991. located in the Los Angeles County Depart­ ciates Inc. The report is based on a ment of Health Services. Strike Force larger study offive district attorneys' 3. DeCicco, J., and E. Bonanno. "A Com­ representative Bill Jones reports that the parative Analysis of the Criminal Environ­ move to the Fire Department had no effect offices that have made the prosecution on HMCP's day-to-day operations. of environmental crimes a priority. mental Laws of the 50 States: The Need for Statutory Unifonnity as a Catalyst for The authors conducted site visits dur­ Effective Enforcement of Existing and II. When a case is referred to the DA's ing which they interviewed prosecu­ Proposed Laws." Florida State University Office, a District Attorney's Office investi­ tors, investigators, regulatory agency JOl/l'/lal of Lalld Use alld Envirollmelltal gator usually works as a team with the Law 5:1 (Summer 1989). HMCP investigator, with the fonner pay­ staff, and other key actors. Their find­ ing particular attention to the case's crimi­ ings will be published in Local Pros­ 4. Despite the name change, the majority nal investigative aspects and the latter to the technical and scientitic requirements. ecution of Environmental Crime, an of Strike Force cases still deal with ill~gal • NIJ Issues and Practices report. transportation and disposal of hazardous Although this system usually works quite waste . well, some conflicts have arisen when

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HMCP's investigators wished to tal:e the 18. Technical issues are complicated, and 23. O'Brien, Michael A. "The Environ­ lead in a criminal investigation, but the the sampling and monitoring of sewer mental Protection Forum," FBI Law DA's Office (or another law enforcement discharges must follow the instructions En/orcement Bulletin (April 1991): 9-12. agency) believed that HMCP should be contained in Environmental Protection limited to a technical support role. HMCP Agency (EPA) Publication SW846. investigators do not have peace officer Cover photo courtesy of the Hazardous status, although they would like to be so 19. People v. Transducers, Inc. Superior Materials Control Program of the County designated. Court, #BAOI3480. of Los Angeles. Pictured are Strike Force workers responding to a report of a leaking 12. People v. Orow Orol/p, J. Lange, alld 20. People a/the State a/California v. underground storage tank. With protective Leslie Wilde. Superior Court, #A979956. Precision Specialty Metals, Inc., Plessy clothing and heavy excavation equipment, Precision Metals, IIlC., C. Edwin Brady, et the team searches for buried waste. 13. People 'I. Califomia Indl/strial Sal­ al. Municipal Court, #31271386. vage, Industrial Movers, alld Stanley Opinions or points of view expressed in Steves. Municipal Court, #A790399. 21. People v. All-American Plating and this document are those of the authors and Joe Panti/at. Superior Court, #A990862. do not necessarily reflect the official 14. People v. Valve Services. Superior position or policies of the U.S. Depart­ Court, #BA009280. 22. Copies of Alameda County's inter­ ment of Justice. agency agreement, "Guidance Document 15. People v. National Environmental on Hazardous Materials Incident Investiga­ The National Institllfe of Justice is a compo­ Corporation. Superior Court, #BA036604. tion," may be obtained from Gilbert A. nent of the Office of Justice Programs, which Jensen, Esq., Consumer and Environmen­ also in elude:; the Bureau of Justice Assist­ 16. People v. Boyce Campbell. Superior tal Protection Division, Alameda County alice, Bureau of Justice Statistics, Office of Court, #BA025490. District Attorney's Office, Oakland, CA Juvenile Justice and Delinquency Preven­ 94612. tion, and the Office for Victims of Crime. 17. Los Angeles Chemical v. Superior COl/rt. 226 Cal. App. 3d 703 (December 1990). NCJ 141868 August 1993

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16 National Institute of Justice *U.S. GOVERNMENT PRINTING OFFICE: 1993- 342-496/84299