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

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Environmental EnforcementEnvironmental EnforcementPresented at the UHLC

March 10, 2010

Roger A. HasemanAssistant District AttorneyHarris County, Texas

OverviewOverview

Historical PerspectiveTypes of CasesInvestigative AgenciesE.C.R.P.Annual StatsS.E.P.sInitiativesTraining & Education

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Historical PerspectiveHistorical Perspective

Began in the late 1970sThe Pollution DivisionOne person assigned to this Division as

well as other duties

Received most, if not all, cases from the Harris County Pollution Control Division (HCPCD)

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Historical PerspectiveHistorical Perspective

Responsible for the prosecution of two seminal cases:

American Plant Food Corp. v. State (Water Pollution)

Exxon Co. U.S.A. v. State (Air Pollution)

Still make case law with every trial today.4

Historical PerspectiveHistorical Perspective

1991 – SB2Created a multitude of new offenses, both

felonies and misdemeanorsHealth & Safety CodeWater Code

Basic framework we still use today.

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Types of Cases We ProsecuteTypes of Cases We Prosecute

Illegal Dumping – Strict LiabilityWater Pollution – Strict Liability Used Oil Act ViolationsAir PollutionHazardous Waste Violations

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Special Situation CasesSpecial Situation Cases

Parks and Wildlife Code Violations– Sewage discharges from boats– Industrial Waste discharges

(Fish houses/Seafood processors)– Prohibited Species cases

(Non-native Fish/Plant life)

2007 – 2008 (29 total cases)7

Special Situation CasesSpecial Situation Cases

Animal Cruelty Investigations– These were initially the responsibility of the

Pollution Division

2005 – Water Pollution cases involving horse stables and dog fighting operations

Environmental impact from animal feces discharges and runoff

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Who Investigates Who Investigates Environmental Crime?Environmental Crime?HCPCD – HCPHES

– (Merger with the Health Department)– 15 Investigators

HPD/EIU – 1993 – 6 Police Officers and 6 City Inspectors

HCEED – 1993 – 7 Constables + 2 Salvage Yard Detail

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Who Investigates Who Investigates Environmental Crime?Environmental Crime?Texas Parks & Wildlife Department

– 2 Game Wardens (Environmental Officers)Texas Commission on Environmental

Quality (TCEQ)– 2 Criminal Investigators

E.P.A. – ???County Attorney’s Office

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Environmental Circuit Rider Environmental Circuit Rider Project (ECRP)Project (ECRP)Project of the Houston-Galveston Area

Council of Governments (H-GAC)Reimbursable Contract with H-GAC to

assist the other 12 counties in the regionEnabled Environmental Crimes to obtain a

fourth prosecutor position

Idea conceived as a result of SB 1265

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SB 1265 – 2003 SB 1265 – 2003

Codified as Section 7.203, Water CodeCriminal Enforcement Review

Requires the TCEQ to first review offense reports submitted by peace officers before a prosecuting attorney may initiate criminal environmental charges against a defendant holding a TCEQ permit

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SB 1265 – 2003 SB 1265 – 2003

The TCEQ then has 45 days to evaluate the report, determine whether a violation exists, and whether administrative or civil remedies would be more appropriate than criminal charges.

If there is a determination that administrative or civil remedies are inadequate or inappropriate, then the criminal prosecution may proceed.

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SB 1265 – 2003 SB 1265 – 2003

In all other cases, the violation will be resolved through administrative or civil means, and a prosecuting attorney may not prosecute the alleged violation.

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Response to SB 1265Response to SB 1265

Harris County prosecuted 400 environmental cases in 2003

TCEQ prosecuted 20 total cases in the remaining 253 counties during same period

Businesses here complained to legislature about being prosecuted

Legislature decided to try to stop Harris County from prosecuting these cases (Rogue prosecutor)

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Response to SB 1265Response to SB 1265

Goal to work with H-GAC to provide training and prosecution, if necessary to the other 12 counties in the region

2004 – Prepared both civil and criminal manuals for prosecuting environmental violations

2005 – Went to every county in the region to provide training

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Response to SB 1265Response to SB 1265

2006 – 2009Provided assistance to all counties in the

regionActively prosecuted cases as a special

prosecutor in Fort Bend and Montgomery Counties

In 2008 – 2009, handled approximately 100 cases in those two counties

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Annual Stats – Five YearsAnnual Stats – Five Years

2005 – 383 Cases – $729,405.002006 – 546 Cases – $594,951.002007 – 420 Cases – $644,956.002008 – 492 Cases – $259,300.002009 – 481 Cases – $525,050.00

Avg. – 465 Cases/Year

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Annual Stats – Five YearsAnnual Stats – Five Years

Total Restitution – $446,541.92

Total Community Service Restitution $3,395,347.51

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Supplemental Environmental Supplemental Environmental Projects (S.E.P.s)Projects (S.E.P.s)Both the City of Houston and Harris

County have S.E.P. AccountsCorporations perform projects through

Pre-Trial Intervention AgreementsPenalties – Fines + S.E.P. ContributionsTotal S.E.P. Contributions – 2004-2009

$2,435,650.00

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S.E.P. Recipients S.E.P. Recipients

Buffalo Bayou Partnership – $895,000.00– Hike and Bike Trails– Mighty Tidy– Buffalo Bend Wetland Park– Educational Tour Boat– International Coffee Building

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S.E.P. RecipientsS.E.P. Recipients

Galveston Bay FoundationThe Children’s MuseumKeep Houston BeautifulHarris County – Ozone MonitorsCity of Houston – Hybrid Vehicles and

Park Projects

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Initiative – Back Log of CasesInitiative – Back Log of Cases

Beginning of 2009 – 215 CasesAs of March 1st – 139 Cases

We filed 424 new cases in 2009We handled 481 cases in 2009

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Other Initiatives for 2009—Other Initiatives for 2009—2010 2010 Apartment Complex Sewage casesPower/Pressure Washing CasesShip Channel Initiative – Boat Patrols

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Training & EducationTraining & Education

City of Houston Seminars (NEET)– Waste Transporter Seminar– Power/Pressure Washing Seminars– Apartment Complex Sewage Issues– Automotive Industry Seminar

HCPHES TrainingH-GAC Environmental Roundtables

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Training & EducationTraining & Education

TCEQ Basic Environmental CourseTELEA ConferenceSEEN Conferences

– Our office is an agency member representative for TDCAA

FLETC (Advanced Environmental Crimes Course – Two Weeks)

NDAA Courses

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ConclusionConclusion

No other county in Texas does what Harris County does

No other county in Texas has more than one prosecutor assigned to environmental

The vast majority of criminal environmental case law has come and continues to come from Harris County

Harris County is the leader in Texas on environmental crimes

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Miscellaneous ItemsMiscellaneous Items

Mens Rea (Culpability)

Intentional or Knowing Violations– “with respect to conduct” (Texas law)– Ahmad v. United States (Federal law)

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Public Welfare DoctrinePublic Welfare Doctrine

Strict Liability Offenses– Water Pollution (Chapter 7.147, Water Code)– Illegal Dumping (Chapter 365, H&S Code)

Criminal Negligence

Corporations – Probation???

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Water and “Water in the State”Water and “Water in the State”

means groundwater, … lakes, bays, ponds, … reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, … and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.

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Water in the StateWater in the State

Drainage ditches Watts v. State, 140 S.W.3d 860 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d)

Sanitary sewer linesMcGee v. State, 923 S.W.2d 627 (Tex.App.—Houston [1st Dist.] 1995, pet. ref’d)

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QUESTIONS???QUESTIONS???

Roger A. HasemanAssistant District AttorneyChief, Environmental Crimes DivisionHarris County, [email protected]