PREMIUM LEGAL RESOURCES
ASK A LAWYER
by Theodore M. Hammett and Joel Epstein
Environmental crime is a serious problem for the United States, even though
the immediate consequences of an offense may not be obvious or severe.
Environmental crimes do have victims. The cumulative costs in environmental
damage and the long-range toll in illness, injury, and death may be
The public recognizes the severity of environmental crimes. More than a
decade ago, a Bureau of Justice Statistics survey found that Americans
believed environmental crimes to be more serious than a number of
"traditional" crimes such as burglary or bank robbery.1 More recently, a
1991 survey revealed that 84 percent of Americans believed that damaging
the environment is a serious crime, and 75 percent believed that corporate
officials should be held personally responsible for environmental offenses
committed by their firms.2 But despite increased public concern, pollution
still threatens public health and jeopardizes the ecological balance.
The Environmental Regulation Paradox
Over the past 20 years environmental laws covering hazardous waste, toxic
substances, and air and water pollution have become more complex and
stringent. But paradoxically, the very laws and regulations designed to
protect the environment may have contributed in several ways to increasing
the incidence of environmental violations.
First, because regulated businesses have found it increasingly expensive to
comply with the new statutes, more and more are avoiding these costs, even
if it means violating the law. Although there are still numerous instances
of "midnight dumping" (randomly dumping hazardous materials or waste by the
roadside or in vacant lots), increasing numbers of businesses are
consciously and systematically violating environmental laws to save money
and increase profit margins.3
Second, environmental offenders and their defense counsel are becoming more
sophisticated in their methods. For example, a large number of firms have
learned to shield their involvement in illegal activities through the use
of intermediaries and dummy corporations, and many environmental defense
attorneys are former prosecutors who know the laws and are adept at using
procedural techniques to protect their clients.
Such actions show that regulation alone is not always enough to protect the
public and the environment. The stigma of criminal indictment and the
threat of criminal penalties, including incarceration, are increasingly
viewed as necessary deterrents to environmental criminals.
Passage of criminal penalties for environmental offenses has made local
prosecutors equal partners with the regulatory agencies that had been
primarily responsible for enforcement. And in a handful of jurisdictions,
prosecutors, investigators, and environmental regulators have forged
innovative and effective strategies for identifying and punishing
environmental offenders. One of the first local programs to create a team
approach to environmental crime prosecution was the Los Angeles (LA) County
Environmental Crimes Strike Force.
Under the leadership of the Office of the District Attorney (DA), the
Strike Force has sent a clear message to polluters that their acts will no
longer be tolerated and that, unlike much administrative and civil
enforcement, criminal prosecution really hurts. As a result of the personal
and institutional relationships fostered by the Strike Force, member
regulatory agencies, previously reluctant to refer matters for criminal
prosecution, have themselves become strong advocates of criminal
Origins and Organization
The Strike Force was first conceived under then Los Angeles City Attorney
Ira Reiner in the early 1980's. When Reiner was elected district attorney
in 1984, he took the Strike Force concept with him to the DA's Office. Then
consisting of five key agencies, it was known as the Hazardous Waste Strike
Force. In 1989 it was renamed the Los Angeles County Environmental Crimes
Strike Force to reflect the group's concern with all aspects of the
The Los Angeles County Environmental Crimes Strike Force now includes
permanent representatives from almost 20 State and local law enforcement
and regulatory agencies (exhibit 1). Four of the five original agencies
form its core: the LA County District Attorney's Office, the Hazardous
Materials Control Program (HMCP) of the LA County Fire Department, the
California Highway Patrol (CHP), and the Los Angeles Police Department
The Strike Force is now led by the Environmental Crimes/OSHA (Occupational
Safety and Health Administration) Division of the Los Angeles County
District Attorney's Office (exhibit 2). Michael Delaney is head deputy of
this division (at the time of this research, David Guthman was head
deputy). The district attorney continues to provide financial and
logistical support to the Strike Force effort.
The "Eyes and Ears" of the Community
Former District Attorney Reiner's commitment to environmental prosecution
marked him as a pioneer. Perceived as somewhat risky at first,
environmental prosecution was a nontraditional area for local prosecutorial
activity, in part because of the challenges posed by environmental cases.
At first glance, many environmental offenses may not seem to be crimes at
all. The frequent absence of "smoking gun" evidence often requires that
prosecutors rely on expert witness testimony and circumstantial evidence to
demonstrate the severity of the environmental offense and link the de-
fendant to the crime. Thus, the Strike Force's emphasis on coordination and
use of all available resources has been vital to the success of its
The Strike Force approach allows members to concurrently assess health
risks, mobilize regulatory agency involvement, and obtain evidence for
criminal prosecution. One deputy district attorney in the Environmental
Crimes/OSHA Division identified three elements essential to the Strike
o A law enforcement component to conduct criminal investigations.
o A technical component with a capacity to conduct health risk assessments
and collect samples at the scene of alleged violations.
o 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
environmental consciousness and multiplies the number of "eyes and ears" in
the community. Many Strike Force investigations begin with tips from
employees of businesses or other citizens.
Commitment and Cooperation
The Strike Force has always relied on the commitment of participants and on
informal interagency cooperation, rather than a formalized structure, to
enforce group decisions. In the early days, the Strike Force depended on
peer pressure to motivate follow- through. If an agency failed to live up
to its commitments, it would draw a critical eye from other members. To
this day, the Strike Force does not have memorandums of understanding or
other written agreements.
In many jurisdictions across the country, regulatory agencies must decide
on their own whether a reported vio-lation requires evidence gathering for
criminal prosecution or simply followup inspection and administrative
action. However, the LA County Strike Force facilitates quick and efficient
decisionmaking in such circumstances. For example, if a new investigation
is referred to the Strike Force for surveillance, Sanitation District staff
may be dispatched to collect samples and have them analyzed. If the
analysis is positive, a deputy prosecutor can draft a search warrant, and
within a few days the illegal discharge of pollutants can be stopped and
evidence gathered for prosecution of the violator. One participating
agency, the Hazardous Materials Control Program, uses the following
criteria to decide whether an incident should be handled administratively
or referred to the District Attorney's Office for prosecution:
o Seriousness of the violation.
o Intent of the violator.
o Amount and toxicity of the substances involved.
o Environmental record of the individual or firm.
Procedures for sharing fines and criminal penalties in hazardous waste
cases among participating agencies are defined by statute in California.5
Being able to count on realizing revenues from successful prosecutions
helps to reassure agencies that might otherwise be reluctant to involve
themselves in the investigatory process.
A Potent Weapon
The ability of the Strike Force to coordinate all aspects of
enforcement, from detection of a suspected environmental violation to
conviction of the offender, makes it a potent weapon against environmental
crime. According to former District Attorney Reiner, "The success of the
approach is ultimately validated in court with the company fined and
responsible corporate officials jailed for their acts."6
Prosecution at the Local Level. An example of the Strike Force at work
began when the Hazardous Materials Control Program conducted a routine
inspection of an equipment rental firm. Underground storage tanks were
discovered on the property, and an investigation was initiated. The
Department of Public Works (DPW) was called in to search for buried waste
with a backhoe. The County Sanitation Districts joined the investigation
when it was determined that sewer connections and sewer discharges were
involved. Finally, the county sheriff's department provided aerial
photographs of the site. All four agencies worked smoothly together on the
investigation. In this case charges were filed and convictions obtained.
Prosecution at the National and International Levels. In some
investigations, international as well as interjurisdictional coordination
may be required. Today it is not unusual for environmental criminals to
transport hazardous waste across State or international borders for
disposal in places with less stringent environmental enforcement. Another
Strike Force case reveals the lengths to which criminals will go to evade
strict environmental enforcement and the multijurisdiction-al efforts
needed to apprehend them.
In May 1990 Raymond Franco and David Torres became the first defend-ants
named in felony indictments under Federal environmental law for the
disposal of hazardous waste across international borders. The two men were
involved in a scheme to transport hazardous waste from southern California
for illegal disposal in Tijuana, Mexico. In what has been hailed as a model
Strike Force operation, Federal, State, county, local, and Mexican
government officials cooperated in a long, complex inquiry. Investigation
and prosecution of the case required the cooperation of the Federal Bureau
of Investigation, the Environmental Protection Agency, the Department of
Justice, the U.S. Customs Service, the State Department, Los Angeles and
Orange County officials, and the Government of Mexico.7
At the time of the Franco indictment, former District Attorney Reiner
remarked, "We have to be as diligent in stopping the flow of toxics south
of the border as we are diligent about [stopping] the flow of drugs coming
north. In both cases it comes back to haunt us."8 The case received con-
siderable attention in the press and represents an important example of
interjurisdictional cooperation in the fight against environmental crime.
It also provided the impetus for enhanced Federal and State multiagency
efforts to crack down on the illegal disposal of American hazardous waste
The Los Angeles County district attorney feels that his office's active
participation in the Environmental Protection Agency-funded Western States
Hazardous Waste Association helps to enhance multijurisdictional
When the Strike Force was small, representatives held weekly meetings to
discuss prespecified cases and assign specific tasks for the upcoming week.
At subsequent meetings, agencies were expected to bring the Strike Force up
to date on progress with assigned tasks. Soon after his appointment as head
deputy of the Environmental Crimes/OSHA Division in 1988, David Guthman
decided that the large number of agencies involved made weekly meetings
unwieldy. He instituted monthly meetings of the entire Strike Force to
discuss general issues and more frequent, sometimes almost daily, meetings of
small groups of agency representatives to work on specific cases. The goal
was to maintain both the intimacy and the effectiveness of the small weekly
Environmental Crimes/OSHA Division prosecutors believe that the large
monthly meetings serve as a clearinghouse for sharing information and
cultivating professional contacts. Participating agencies use the
collective resources of the group to identify environmental violations and
compile "environmental rap sheets" on suspects. In turn, members can call
on the considerable investigative and prosecu-torial resources of the
Strike Force that can be rapidly mobilized against a violator. However,
some Strike Force members think that the dual meeting format has not worked
well. Critics believe participants spend too much time talking about minor
cases, which should be referred to the DA's general crimes division, and
discussing general issues, which are not particularly valuable.9
Agency representatives generally agree, though, that the key to the Strike
Force's effectiveness has been the development of close, long-standing
relationships. Established professional relationships mean that members
know whom to call to get help on a case and that they themselves expect to
be called for information and assistance.
The Role of Key Agencies
The LA County District Attorney's Office plays perhaps the most prominent
role of any member agency in Strike Force prosecutions. But other
agencies, including the Hazardous Materials Control Program, the Los Angeles
City Sanitation District, the Los Angeles County Department of Public
Works, the Los Angeles County Sanitation Districts, and the South Coast Air
Quality Management District (AQMD), play important roles as well.
Environmental Crimes/OSHA Division
Eight full-time criminal investigators are assigned to the Environmental
Crimes/OSHA Division of the District Attorney's Office. Prosecutors in this
unit believe that environmental crimes are crimes of violence against the
environment and ultimately against the public, which must be punished.
Because these prosecutors thoroughly understand the legal requirements for
obtaining a conviction, other agencies in the Strike Force naturally turn
to the DA's Office for leadership.
The Los Angeles County DA employs a vertical prosecution model in
environmental cases. When a new case comes into the unit, an Environmental
Crimes/OSHA Division attorney is assigned on the same day the case is
received. Barring a rare emergency requiring reassignment, the assigned
prosecutor stays with the case all the way through adjudication and final
Civil Versus Criminal Prosecution. Although the DA's Office has both civil
and criminal jurisdiction, deputy prosecutors use civil proceedings only
when criminal remedies are unavailable. Environmental Crimes/OSHA Division
attorneys emphasize that criminal prosecution is more effective as a
deterrent than administrative or civil proceedings. Former head deputy
Guthman adds that if the desired outcome is to obtain cleanup or
remediation of an environmental problem, the prosecutor can use the threat
of a prison sentence to motivate a defendant to act, a strategy not
available in civil proceedings.
Los Angeles deputy DA's also note that criminal prosecution in the county
is generally faster than the civil route. Moreover, in many cases the fines
and penalties obtainable through criminal prosecution are as large or
larger than the available civil remedies.
Prosecutors in Los Angeles County have crafted criminal penalties that make
cleanup of a site or remediation of an environmental problem a condition of
probation. Although defense attorneys frequently propose a civil settlement
to avoid a criminal case against their clients, the policy of the DA's
Office is to turn down such offers. By doing so, prosecutors refuse to
bargain away the deterrent value of a criminal proceeding.
City Versus County Versus State Jurisdiction. Jurisdiction over
environmental matters in Los Angeles County is complex. City attorneys have
jurisdiction over criminal misdemeanors committed within the Los Angeles
city limits and in eight other cities in Los Angeles County. However, the
county district attorney has felony indictment authority throughout the
county. The county DA's authority extends to misdemeanors as well outside
these nine cities.
This complicated division between the county and its municipalities often
requires that criminal investigation findings be shared across
jurisdictional lines. For example, in many cases what begins as a suspected
misdemeanor may turn out to merit a felony indictment. Therefore, the
various prosecutorial authorities must stay in close contact.
The county district attorney's relationship with the California Attorney
General is considerably more limited than with city attorneys because the
State Attorney General has no original criminal jurisdiction. His office
may prosecute cases declined by the DA or from which the DA has recused
Hazardous Materials Control Program (HMCP)
Because of its mandate to regulate generators of hazardous waste in Los
Angeles County, HMCP has been the regulatory agency most heavily involved
in the Environmental Crimes Strike Force.10 Unlike other regulatory
agencies, which focus on compliance through administrative and civil
procedures, HMCP is not reluctant to pursue criminal prosecution for the
punishment of offenders. HMCP's permanent Strike Force representative Bill
Jones has been involved since the very beginning.
Each month HMCP responds to 130 to 140 incidents (about 1,500 per
year)involving hazardous materials or hazardous waste. In 1990 HMCP
investigative section referred 360 criminal complaints for prosecution. Its
investigators may conduct both the criminal and the technical aspects of an
investigation. They also make their own determination as to whether
criminal investigation of a complaint is warranted.
In 1990 HMCP referred 53 incidents for prosecution. This represented almost
double the number of cases (28) referred in 1989. Moreover, in 1990 the
agency participated in the execution of 18 felony search warrants and was
involved in hazardous waste prosecutions that netted $2.5 million in fines.
The agency's aggressive support of criminal prosecution has led to some
"turf" battles with the LA County DA's Office over re-sponsibility for
followup criminal investigations.11
HMCP's authority covers hazardous waste generators within Los Angeles
County, but the California Department of Health Services has responsibility
for regulating the State's transportation, storage, and disposal
facilities. Simple in principle, the distinction is often not clear or
fully implementable in practice. Ambiguity occurs when cases involve both
generation of hazardous waste and its transportation, storage, and
disposal, as they often do, and the various aspects of the investigation are
not easily separable. The following cases illustrate why HMCP can become
involved in all stages of an environmental action.
Chlorine Toxic Cloud. This case, involving the manufacture of chlorine
tablets for swimming pools, originated when HMCP responded to an emergency
involving toxic clouds. In fact the problem started long before, during the
manufacturing process, when chlorine tablets broke and pieces fell to the
floor. Company employees swept them up with sawdust and grease and stored
the waste on the premises in barrels and deteriorating cardboard
containers. Because the containers were in poor condition, moisture got
into the mixture, causing it to combust. The resulting fire created toxic
clouds requiring some 28,000 residents to evacuate the area. South Coast
Air Quality Management District investigators joined HMCP in the
Although the incident involved disposal of hazardous waste into the air,
the Strike Force decided to prosecute the company under a California
hazardous waste law intended to address land disposal. The prosecutor
relied on the creative theory of "disposal by emission" to persuade the
court of the defendants' culpability. Company executives received 6-month
prison terms and were fined $659,000, of which $259,000 was to be used as a
scholarship fund for students from the high school serving the evacuated
PCB's and Asbestos. This case involved close coordination of the sheriff's
department and HMCP. After HMCP conducted an initial investigation,
multiple search warrants were obtained for the property of the de-fendant,
whose two companies were suspected of unlawful disposal of PCB's and
asbestos. The sheriff's department provided a helicopter for aerial
photography of the site. Successful indictment and conviction of this
offender hinged on the coordinated efforts of the Strike Force.13
Corrosives in a Pit. This case began with a tip that a company had been
dumping degreasing solvents and corrosives into a pit on its property for
15 or 20 years. A search warrant was obtained, and samples taken from the
site revealed the presence of hazardous waste. In addition, aerial
photography showed dead vegetation surrounding the pit. The company was
convicted of illegal disposal of hazardous waste and failure to comply with
Re-Use of Contaminated Containers. This case involved a refuse transfer
facility that accepted asbestos. The containers used by the company to
collect asbestos were not supposed to be opened once the materials were
collected. Because of the volume of work, however, the facility was
regularly re-using the containers after employees had dumped the asbestos-
contaminated waste elsewhere at the facility. HMCP gathered evidence of the
practice by taking samples of the dumped material and photographs of the
transfer facility. The defendant was fined $250,000.15 Recently a new
action has been filed against the company and certain of its officers.
Dumping Waste From Paint Products. This case grew out of an HMCP
investigation of a suspect who rented Ryder trucks, loaded them with
hazardous waste from paint products, and then abandoned the trucks. The
investigation was simplified by the fact that the suspect rented the trucks
in his own name. He was convicted and sentenced to a 32-month prison term.
The DA also sought indictments against businesses that hired the suspect
because of evidence that these companies knew, or should have known, that he
planned to dispose of the hazardous wastes illegally.16
Unlicensed Transporters Sting. This case involved a "sting" operation of an
unlicensed transporter who offered businesses cheap, and illegal, disposal of
their hazardous waste. The transporter came to the attention of the Strike
Force after a series of emergency incidents to which HMCP responded. Using
an abandoned business location, HMCP and DA investigators concocted some
marginally hazardous waste and then contacted the suspect, who came out and
offered his services. After the suspect's bid was accepted, investigators
surreptitiously videotaped him loading the waste and hauling it away. The
suspect's truck was followed, and he was apprehended preparing to mix the
waste with other waste for illegal disposal. He was later indicted and
Until recently, HMCP investigators routinely searched, without a warrant,
the premises of firms suspected of environmental offenses. However, a State
court put an end to this practice when it ruled that such searches violated
the fourth amendment prohibition against unreasonable search and seizure.
In a decision potentially affecting all regulatory agencies, the court
ruled that the fourth amend-ment's search and seizure provisions do apply
to health officers. Now health officers must obtain either the party's
consent or a standard search warrant before conducting a search. This
decision seemingly removes the advantage previously held by health and
other regulatory agencies over law enforcement agencies in criminal
Los Angeles City Sanitation District
The Los Angeles City Sanitation District is responsible for investigating
illegal discharges into the city's sewers. Monitoring of a company's sewer
discharges may be triggered by a tip from a disgruntled employee or
concerned citizen or may be routine, based on a pattern of prior problems
or notices of violation. The businesses that most commonly violate city
sewer laws appear to be electroplaters and metal finishers.
The City Sanitation District decides how to proceed after determining
whether an incident seems to be a one-time or accidental discharge or part
of a deliberate pattern of illegal activity. If the agency determines that
a discharge is a one-time or accidental incident, the agency generally
handles the matter through administrative procedures. On the other hand, if
the agency believes the discharge is part of a pattern of deliberate
illegal activity, the case is referred for criminal prosecution.
The City Sanitation District monitors many sewer discharges by LA
businesses during graveyard shifts. Investigators typically "bracket" the
target company by monitoring water quality both upstream and downstream of
the suspect facility. This technique makes it possible to identify
pollutants being discharged by the bracketed firm.
On a regular basis, roughly half of the City Sanitation District night
crew's time is devoted to enforcement and Strike Force work.18 When
possible, City Sanitation District investigators also use the so-called
"grab sample" method of collection. This method involves collecting the
entire discharge sample within a 15-minute period. The agency has found
that combining the bracketing and grab sample methods is most likely to
generate samples and laboratory analyses that support the prosecutor's
On its own the City Sanitation District does not conduct criminal
investigations. Instead, the agency notifies the Los Angeles County
District Attor-ney's Office and the Los Angeles Police Department of any
suspected criminal activities for followup.
Los Angeles County Department of Public Works
The Los Angeles County Department of Public Works (DPW) is responsible for
two aspects of hazardous waste control:
o Regulating industrial waste through sewer and water treatment facilities.
The agency's jurisdiction for waste covers all of the unincorporated areas
in Los Angeles County plus 40 of the 88 cities.
o Overseeing the removal, upgrading, and replacement of underground storage
tanks. The agency's jurisdiction for storage tanks covers all of the
unincorporated areas in Los Angeles County plus 79 of the county's 88
DPW operates a small number of water treatment plants of its own and shares
joint authority over numerous other sewer operations with Los Angeles City
and County Sanitation Districts.
A computerized program triggers routine inspections, but the department
also acts on complaints from individual citizens. In addition, DPW responds
to suspect activity reported by its own divisions, such as those concerned
with roads and flood control.
At any given time, DPW staff are typically involved in 10 to 15 intensive
investigations. Nineteen staff inspectors handle a caseload of
approximately 1,000 open notices of violation. Although the primary goal of
the agency is to obtain compliance, DPW staff believe that unrepentant "bad
guys" should be criminally prosecuted. As a result, they do not hesitate to
refer cases to the DA's Office. In addition, DPW regularly participates in
Strike Force investigations by providing backhoes and other heavy equipment
to excavate sites.
Los Angeles County Sanitation Districts
The Los Angeles County Sanitation Districts are independent agencies that
are not part of county government. They are responsible for monitoring
industrial discharges into sewers in most of Los Angeles County, exclusive
of the city of Los Angeles. The County Sanitation Districts also operate a
small number of sanitary landfills.
The County Sanitation Districts have authority to undertake their own
criminal enforcement of misdemeanors. However, if they uncover evidence of
a felony, the districts notify the Los Angeles County District Attorney's
Office, and Strike Force activity is triggered. In 1990 the County
Sanitation Districts referred 17 cases to the Los Angeles County district
attorney for criminal prosecution. All but one were prosecuted.
Detection of levels of discharge violating State hazardous waste
regulations is usually based on observation by inspectors or the monitoring
of sewers. The County Sanitation Districts often work closely with HMCP,
the California Highway Patrol, and the City Sanitation District.
Illegal Sewer Discharge. In one case the County Sanitation Districts were
able to obtain samples that revealed a radiator shop was both pumping
hazardous waste into a sewer and shipping it to an unlicensed disposal
facility. As part of a joint operation, the CHP followed a truck from the
company to the disposal facility and arrested the transporter.
Nickel Contamination. In another case, an informant called HMCP to report
an alleged illegal discharge into a sewer. County Sanitation District
investigators were asked to take samples that revealed a felony-level
concentration of soluble nickel. A search not only confirmed that the
suspected company was discharging the soluble nickel into the sewer, but
also found that the firm had been disposing of the same waste into the
ground. Investigators also discovered a memorandum to the company's
president stating that legal disposal of this material was becoming
prohibitively expensive and urging the company to find a cheaper method of
disposal. The government's strong case prompted the company to plead guilty
and pay a $500,000 fine.19
Creative Penalties. In an early case, brought by the city attorney's Strike
Force before it changed its name and moved to the County DA's Office, a
number of agencies, including the Los Angeles County Sanitation Districts,
investigated the discharge of wastes through multiple sewer connections.
The case, against a plating firm, was one of the first in which a "creative
penalty" was used. As part of its sentence, the defendant company was
required to place a notice in the Wall Street Journal admitting that it had
violated the law.20 "Toxic tickets" (see box on page 11) may become another
South Coast Air Quality Management District
In most parts of the country, Federal agencies take the lead in air
pollution cases. However, because of southern California's severe smog
problem, Los Angeles County has undertaken criminal enforcement of air
pollution laws. With a staff of 14 investigators plus an air pollution
prosecutor, the South Coast Air Quality Management District monitors air
pollution levels in LA County.
AQMD refers all criminal cases to the Los Angeles County DA's Office,
reserving civil and administrative matters for its own prosecuting
attorney. In each case AQMD's chief prosecutor makes the decision as to
whether to proceed civilly or criminally. Cases declined by the DA may be
sent back to AQMD or to another regulatory agency for civil action.
Most of the Strike Force incidents in which AQMD has been involved have
been asbestos cases, and many of these cases began with AQMD air pollution
monitoring activity. For example, in Los Angeles County, a permit is
required for any demolition that risks releasing "fugitive dust" into the
air. If asbestos or any other hazardous material is involved, the Air
Quality Management District must monitor the activity.
Role of Other Law Enforcement Agencies
To ensure that all criminal and scientific aspects of an investigation are
covered, prosecuting attorneys from the Environmental Crimes/OSHA Division
are often teamed with investigators from other law enforcement and
investigative agencies. Among them are the California Highway Patrol's
Hazardous Materials Investigation Unit, the Los Angeles Police Department,
and the Los Angeles County Sheriff's Department.
California Highway Patrol
The California Highway Patrol's Hazardous Materials Investigation Unit has
been a key contributor to numerous Strike Force cases. The CHP Unit's
Southern Division, based in Los Angeles, consists of one sergeant and two
investigators. This group has investigated more than 300 cases since 1985,
including 42 in 1990 and 73 in 1989.
California law prohibits the unlicensed transport of hazardous waste over
California's highways and the delivery of hazardous waste to unauthorized
storage or disposal facilities. Although the focus of CHP investigations is
on illegal transportation, the unit is also involved in Strike Force cases
with disposal as well as transportation elements. With jurisdiction over
the State's highways, the CHPbecomes involved because of cross-
jurisdictional issues. As one CHP officer commented, "the bad guys" are
often involved in activities that cross city and county lines.
The CHP's Hazardous Materials Investigation Unit has a proactive
enforcement strategy of identifying and apprehending violators before they
"successfully" dispose of hazardous wastes. Proactive enforcement means
identifying likely violators and catching them in the act of transporting
hazardous waste for illegal disposal. Stopping illegal dumping before the
waste hits the ground, enters the sewer system, or contaminates some other
sensitive environment saves taxpayers significant cleanup costs and spares
the environment possibly severe, irreversible harm.
The Franco Case. The 1990 indictment of Raymond Franco and David Torres for
conspiracy, illegal transportation, illegal disposal, and illegal export
(discussed on page 6) demonstrates the important role the CHP plays in the
Los Angeles Strike Force. As part of its criminal investigation, the CHP
conducted surveillance of Franco's California plant as well as his Mexican-
registered trucks. The break in the investigation came when CHP officers
were staking out the plant. They observed Franco and others loading and
concealing 55-gallon drums on the Mexican-registered trucks. Subsequently,
the trucks, driven by Mexican nationals, including David Torres, were
followed as they headed toward the Mexican border. One of the trucks was
stopped just short of the border, and the driver was arrested. Laboratory
analyses of samples taken from drums found on the seized truck showed the
presence of hazardous waste.
On the basis of the CHP's work, Federal officials joined the team. After
obtaining permission from the Mexican Government to conduct a search of a
warehouse owned by Torres in Tijuana, the FBI discovered additional
incriminating evidence: drums of highly volatile hazardous waste that
Franco had contracted to transport and dispose of for another California
LA County Sheriff's Department and LA Police Department
Over the years investigators from several other municipal and county law
enforcement agencies have been active in the LA County Strike Force. At
first the Los Angeles County Sheriff's Department was heavily involved in
many aspects of Strike Force cases, though it has reduced its primary role
to providing helicopters for aerial photography of specific sites.
The Los Angeles Police Department (LAPD) has established an environmental
crimes unit as well as a hazardous materials response unit. Both units have
been involved periodically in Strike Force cases, as have police
departments from other cities in the county.
Cyanide in the Sewers. This case involved a company's systematic discharge
of cyanide into Los Angeles sewers during early morning hours when
inspectors were not on duty. LAPD brought in a surveillance van and the
suspects were photographed leaving the company's building carrying hoses
used to discharge wastes into the sewer. HMCP and the City Sanitation
District were also involved in this case. In November 1989 the defendants
were found guilty, fined $25,000, and placed on probation for 3 years.21
Most Strike Force laboratory work is done by the laboratory of the Los
Angeles County Sanitation Districts. Although primarily a water quality
laboratory, it agreed to conduct other work for the Strike Force and
committed one full-time technician to analyze materials for Strike Force
Other available laboratory resources include the city of Los Angeles
laboratory (in cases developed by the City Sanitation District), the
California Department of Health Services laboratory, and the Air Quality
Management District laboratory (for air quality cases). In addition, the
Strike Force turns to private laboratories if the public laboratories are
backlogged or unable to provide the services needed. According to Strike
Force members, laboratory resources are sufficient, and service is timely.
There have been very few, if any, problems with slow response time or the
loss of samples.
Upping the Ante
Both the American public and the Nation's environment have suffered and
will continue to suffer serious harm from the acts of polluters. Innovative
initiatives such as the Los Angeles County Environmental Crimes Strike
Force have significantly advanced the use of criminal sanctions against
environmental offenders. By adding indictment and prison sentences to the
range of enforcement actions, in effect "upping the ante," prosecutors send
a message that environmental violations are no longer a cost of doing
business that can be passed along to consumers.
The prosecutions described in this Program Focus demonstrate the largely
untapped potential of coordinated multiagency action and criminal
prosecution in response to environmental crime. In fact, the LA Strike
Force has been remarkably successful:
o About one-third of all matters referred to the Environmental Crimes/OSHA
Division were formally investigated, and approximately one-third of those
investigations resulted in criminal charges.
o In 1990 the Division filed criminal charges against 107 defendants in 72
criminal cases (many of these defendants were charged in multiple-defendant
cases). Of those, 80 defend-ants (75 percent) were convicted; the majority
were fined and not incarcerated (exhibit 3).
o As of 1991, more than 250 criminal convictions had been won for
violations of environmental laws.
As of April 1991, the Environ-mental Crimes/OSHA Division had
approximately 600 open matters (referrals), 150 open formal investigations,
and 1,300 closed cases.
The Strike Force experience shifted the focus of regulators from the sole
pursuit of administrative and civil proceedings to a greater emphasis on
criminal enforcement of environmental violations. A climate of cooperation
and shared purpose stimulated prosecutors, investigators, and regulatory
agency representatives to contribute their knowledge and ideas freely.
Their combined actions have helped to increase local corporate
No One Is Above the Law
Some members of the business community, however, have complained that LA's
aggressive program of environmental enforcement has driven some
companies, and employers, out of the county, but former head deputy Guthman
disagrees. In fact, in Guthman's view the effectiveness of a particular
enforcement strategy is closely related to the furor it creates in the
Guthman emphasizes that the opinions of business are, and should
be, irrelevant to a prosecutor's decision about whether to pursue a
particular indictment. In a similar vein, the Environmental Crimes/OSHA
Division former head deputy wonders if law enforcement would be swayed by a
drug kingpin's arguments against a campaign to drive drug dealers out of a
A Possible Model for Other Jurisdictions
As the number of local jurisdictions developing criminal environmental
enforcement programs of their own increases, the experience gained by Los
Angeles County could be useful. However, the LA Strike Force is unusual
because of the number of agencies involved, the aggressive posture of many
of its members, and the amount of financial and political backing it
receives. Therefore, the Strike Force model of Los Angeles County may need
to be modified to fit other jurisdictions.
For example, some jurisdictions may find the informality of the LA Strike
Force to be effective in the initial phase of an environmental enforcement
program, but less so over time. In such instances, formal memorandums of
understanding in which the responsibilities of member agencies are clearly
defined may help prevent territorial battles from developing among
participants competing for the lead agency position. The environmental
prosecution program in Alameda County, California, has adopted such an
Other jurisdictions may decide that the primary purpose of an environmental
crimes task force is to provide interagency training and foster interagency
relationships, which could be accomplished through temporary arrangements.
Then, after training has been provided and relationships have been
established, relevant staff could work informally as needed on specific
cases without formal meetings with the larger group. This approach was
adopted in central Florida by the Environmental Protection Forum
established by the State attorney.23
Support and leadership from the top of the prosecutorial agency can be
extremely helpful in the establishment and growth of an environmental
enforcement team. With commitment from the top, member regulatory agencies,
traditionally reluctant to refer matters for criminal prosecution, can
become strong advocates of criminal enforcement. Los Angeles County
benefited from the pioneering efforts of its district attorney, and with a
spirit of working for the public good, representatives from city, county,
and State agencies created a foundation of personal and institutional
relationships. They continue to build on their successful multiagency
approach to combating environmental crime.
1.Celebrezze, A.J., et al. "Criminal Enforcement of State Environmental
Laws: The Ohio Solution." Harvard Environmental Law Review 14 (1990):217,
218. See also Bureau of Justice Statistics "The Severity of Crime"
Bulletin. Washington, D.C.: U.S. Department of Justice, 1984.
2.Arthur D. Little, Inc. "Environmental Damage Rated as Most Serious Among
Business Crimes: Corporate Executives Should Be Held Liable, Survey Shows."
Press release, July 1991.
3.DeCicco, J., and E. Bonanno. "A Comparative Analysis of the Criminal
Environmental Laws of the 50 States: The Need for Statutory Uniformity as a
Catalyst for Effective Enforcement of Existing and Proposed Laws." Florida
State University Journal of Land Use and Environmental Law 5:1 (Summer
4.Despite the name change, the majority of Strike Force cases still deal
with illegal transportation and disposal of hazardous waste.
5. California Health & Safety Code sec 25192.
6. Reiner, Ira. "Fighting Toxic Crime: A New Approach." Prosecutor's Brief
7. United States v. Franco and Torres. U.S. District Court, Central
District, California, No. 90, 3520, TJH.
8. Statement made by former Los Angeles County District Attorney Ira Reiner
at a news conference at the U.S. District Court for the County of Los
Angeles on May 10, 1990.
9. A few members believe that the increased size may have reduced the
collective spirit and focus of the smaller group. In addition, several
agency representatives feel that if they talk freely about open cases, they
risk having their investigations "blown," and some believe that the Strike
Force no longer prioritizes cases or moves them along as quickly as it once
did. In its early years, the Strike Force focused on major "impact cases."
Today, according to some members, the group is inundated with all kinds of
cases, some of which may not be worth the attention of the Strike Force.
These critics feel that many of the minor or simple cases should be
referred to the DA's general crimes division.
10. Until the fall of 1991 when it moved to the County Fire Department, the
Hazardous Materials Control Program was located in the Los Angeles County
Department of Health Services. Strike Force representative Bill Jones
reports that the move to the Fire Department had no effect on HMCP's day-
11. When a case is referred to the DA's Office, a District Attorney's
Office investigator usually works as a team with the HMCP investigator,
with the former paying particular attention to the case's criminal
investigative aspects and the latter to the technical and scientific
requirements. Although this system usually works quite well, some conflicts
have arisen when HMCP's investigators wished to take the lead in a criminal
investigation, but the DA's Office (or another law enforcement agency)
believed that HMCP should be limited to a technical support role. HMCP
investigators do not have peace officer status, although they would like to
be so designated.
12. People v. Grow Group, J. Lange, and Leslie Wilde. Superior Court,
13. People v. California Industrial Salvage, Industrial Movers, and Stanley
Steves. Municipal Court, #A790399.
14. People v. Valve Services. Superior Court, #BA009280.
15. People v. National Environmental Corporation. Superior Court,
16. People v. Boyce Campbell. Superior Court, #BA025490.
17. Los Angeles Chemical v. Superior Court. 226 Cal. App. 3d 703 (December
18. Technical issues are complicated, and the sampling and monitoring of
sewer discharges must follow the instructions contained in Environmental
Protection Agency (EPA) Publication SW846.
19. People v. Transducers, Inc. Superior Court, #BA013480.
20.People of the State of California v. Precision Specialty Metals, Inc.,
Plessy Precision Metals, Inc., C. Edwin Brady, et al. Municipal Court,
21. People v. All-American Plating and Joe Pantilat. Superior Court,
22. Copies of Alameda County's interagency agreement, "Guidance Document on
Hazardous Materials Incident Investigation," may be obtained from Gilbert
A. Jensen, Esq., Consumer and Environmental Protection Division, Alameda
County District Attorney's Office, Oakland, CA 94612.
23. O'Brien, Michael A. "The Environmental Protection Forum," FBI Law
Enforcement Bulletin (April 1991): 9, 12.
This Program Focus was written by Theodore M. Hammett, vice president, and
Joel Epstein, analyst, at ABT Associates Inc.
For further information about the Los Angeles County Environmental Crimes
Strike Force, contact: Michael Delaney, Esq., Head Deputy, Environmental
Crimes/OSHA Division, Los Angeles County District Attorney's Office, Hall
of Records, 320 West Temple Street, Room 345, Los Angeles, CA 90012, (213)
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.