1. 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 2

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) 3

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. 4

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. 5

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

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) 7

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 8

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 9

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 10

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 11

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 12

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. 13

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. 14

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) 15

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 16

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 17

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 18

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

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 20

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 21

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 22

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

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

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 25

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 26

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 27

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

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??? 29

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. 30

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

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