Criminal Enforcement of AIR POLLUTION Laws in Texas ALEXANDER FORREST Assistant District Attorney Harris County, Texas

What has the HCDAO Mostly Enforced (historically)? OUTDOOR BURNING: Outdoor Burning, or Open Burning, is the combustion of any type of material in an open fire or in an outdoor container without providing for the control of combustion or the control of emissions from the combustion.

Is Burning Something in your Chimney “Outdoor Burning”? NO. It’s not “outdoors” It’s not “an open fire”

Does that Mean You Can Burn Anything You Want in Your Chimney? NO. There are other rules outside of the outdoor burning statute that limit what emissions you may introduce into the environment. More on this later…

Why Don’t We Want People Engaging in Outdoor Burning of Waste?

Fire Hazard

Health and Safety

Is it Necessary? Balancing the Interests… We already have city / county / local services provided for removing your waste? Why Burn it?

IS IT NECESSARY? Practical Alternatives to Burning Recycling Composting Mechanical Chipping or Mulching Logging Land filling Trench burning (ACIs) Rotting

Balancing The Interests… The law recognizes you have a right to BBQ in your backyard, or burn for “recreational purposes.” The law does not prohibit this activity, as you will see shortly. This is just one example of an exception to the prohibition.

Environmental Criminal Laws in Texas are Codified in Chapter 7 of the Texas Water Code and in Chapters 365 and 382 of the Health & Safety Code. NOTE: Outdoor Burning is NOT in the WATER CODE, nor in the Health and Safety Code! So how is it criminal?

Section 7.177. Violations of Clean Air Act ELEMENTS (1) intentionally (conscious objective) or knowingly (aware of the nature of his conduct), with respect to conduct, violates:   (2) an order, permit, or exemption issued or A RULE adopted under Chapter 382, Health & Safety Code.

The “Enabling Provision” of Chapter 382 of The Health and Safety Code is §382.018(a) “…the commission by rule may control and prohibit the outdoor burning of waste and combustible material and may include requirements concerning the particular method to be used to control or abate the emission of air contaminants from that burning.” Where is this RULE? Title 30, Chapter 111 of the TAC

TCEQ Regulations Volume 30, TAC CHAPTER 111. CONTROL OF AIR EMISSIONS FROM VISIBLE EMISSIONS AND PARTICULATE MATTER. SUBCHAPTER B. OUTDOOR BURNING

Air Quality Outdoor Burning Rule 111.201 (Title 30, TAC)

TCEQ Regulations Volume 30, TAC, Section / Rule 111. 201 TCEQ Regulations Volume 30, TAC, Section / Rule 111.201. General Prohibition (Outdoor Burning). No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by this subchapter or by orders or permits of the commission.

Summary of the Rule Authorization to burn can ONLY be given by the TCEQ. Exceptions allowed – specific conditions must be met when burning is allowed. Special authorization if a situation does not fit an exception.

Rule 111. DO I QUALIFY FOR AN EXCEPTION? RULE 111.205 TAC EXCEPTION FOR FIRE TRAINING.   RULE 111.207 TAC EXCEPTION FOR FIRES USED FOR RECREATION, CEREMONY, COOKING, AND WARMTH.

RULE 111.209. EXCEPTION FOR DISPOSAL FIRES. (1) Domestic waste burning (when collection of domestic waste is not provided or authorized by the local government entity having jurisdiction) (2) Diseased animal carcass burning (3) Veterinarians—Animal Remains (4) On-site burning of trees, brush, and plant growth (5) Crop residue burning (6) Brush, trees, and plant growth— for Safety (City or County Govt.)

RULE 111.211 TAC EXCEPTION FOR PRESCRIBED BURN. (1) Prescribed burning for forest, range and wildland/wildlife management purposes (2) Coastal salt-marsh management burning   RULE 111.213 TAC EXCEPTION FOR HYDROCARBON BURNING.

RULE 111.215. EXECUTIVE DIRECTOR APPROVAL OF OTHERWISE PROHIBITED OUTDOOR BURNING.   RULE 111.219. GENERAL REQUIREMENTS FOR ALLOWABLE OUTDOOR BURNING.   (YOU CAN’T CREATE A NUISSANCE) RULE 111.221. RESPONSIBILITY FOR CONSEQUENCES OF OUTDOOR BURNING.

Materials Not Allowed to be Burned Electrical insulation Treated lumber Plastics Non-wood construction/demolition debris Heavy oils Asphalt materials Potentially explosive materials Chemical wastes Items containing natural or synthetic rubber

PUNISHMENT RANGE – CLASS B MISDEMEANOR (TWC: Section 7.177.) (1) Individual - a fine not less than $1,000 nor more than $50,000 - confinement not to exceed 180 days - both fine and confinement   (2) Other than an Individual - a fine not less than $1,000 nor more than $100,000

Are you BORED yet? Are you wondering, why is Houston, Texas, the largest hub for the petrochemical industry mostly prosecuting people for outdoor burning?

Other than bovine flatulence, the most significant acts of air pollution are happening by PERMISSION (by TCEQ permit), or by the RECKLESS ACTS of a corporations that either go undetected and unreported, or where open and obvious, are difficult to charge and / or prosecute due to the requirement of mens rea.

Chapter 7 of the Texas Water Code Invokes Recklessness as a Means of Proving Criminal Conduct with Respect to Air Pollution with a SINGLE section.

Sec. 7. 182. RECKLESS EMISSION OF AIR CONTAMINANT AND ENDANGERMENT Sec. 7.182. RECKLESS EMISSION OF AIR CONTAMINANT AND ENDANGERMENT. (a) A person commits an offense if the person recklessly, with respect to the person's conduct, emits an air contaminant that places another person in imminent danger of death or serious bodily injury, unless the emission is made in strict compliance with Chapter 382, Health and Safety Code, or a permit, variance, or order issued or a rule adopted by the commission. (b) An offense under this section is punishable for an individual under Section 7.187(1)(D) or Section 7.187(2)(F) or both. (c) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(E).

Even where a REASONABLE PERSON would find the conduct RECKLESS, it may not be RECKLESS as a “matter of law.”

RECKLESSNESS AS A MATTER OF LAW TEXAS PENAL CODE - PENAL § 6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

DON’T BE FOOLED – RECKLESSNESS IS NOT BASED ON A REASONABLE PERSON STANDARD ASESSING THE RISK: Whether your risk is “substantial and unjustifiable” is based on a reasonable person standard. THE DISREGARD OF THE RISK: The “disregard” of the risk is based on a “subjective standard” – the defendant must “consciously disregard” the risk.

Unlike Civil Law, the Prosecution has NO RIGHT TO PRETRIAL DISCOVERY FROM THE DEFENDANT once charges are filed. While we have the power of a grand jury subpoena pre-indictment, we still have to have probable cause to use it.

Even where we have facts that border on recklessness, case law is limiting…

Williams v. State, 275 S.W.3d 742 (Tex.Crim.App. 2007) “[a]t the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct [.]”19 As has often been noted, “[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be,” do not suffice to constitute either culpable negligence or criminal recklessness.20  Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it.21Such a “devil may care” or “not giving *752 a damn” attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of criminal negligence, which assesses blame for the failure to foresee the risk that an objectively reasonable person would have foreseen.22 “Those who are subjectively aware of a significant danger to life and choose, without justification, to engage in actions (or in some cases inactions) that threaten to bring about that danger have made a calculated decision to gamble with other people's lives.”23 This combination of an awareness of the magnitude of the risk24 *753 and the conscious disregard for consequences is crucial. “It is callous disregard of risk, and not awareness vel non of risk, however, which is critical.”25 And, of course, determining whether an act or omission involves a substantial and unjustifiable risk “requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.”

You can’t get into a person’s subjective state of mind, unless they either speak to you at the scene, or you get them to take the stand at trial. With corporations, there is often a large barrier between the HIGH MANAGERIAL AGENTS and the PEOPLE WORKING THE SITE. Unlike Colonel Jessup in “A Few Good Men,” Corporations and their High Managerial Agents aren’t at the scene of the crime, and they almost always assert their 5th Amendment Rights. https://www.youtube.com/watch?v=UOLix3zrnbg