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#350 - Dietrich's Law, 11-Aug-1993

Under federal law, the U.S. Environmental Protection Agency (EPA) may
investigate but cannot prosecute violations of environmental law.
Prosecution is handled by state attorneys, by a U.S. Attorney or, most
often, by the Environmental Crimes Section (ECS) of the U.S. Department
of Justice (DOJ).

In 1990, rumors and occasional press reports were circulating about
sweetheart deals between ECS and major polluters. At EPA headquarters,
disquieting reports were coming in from EPA field criminal
investigation agents, indicating that DOJ was dropping criminal cases
against executives of Fortune 500 companies.

Richard Emory, Acting Director of EPA's Criminal Enforcement Counsel
Division, warned his superiors about the situation and was promptly
ordered to investigate. What he found was shocking, even by the
standards of the Reagan-Bush years. He documented at least 20 cases of
sweetheart settlements by DOJ. Here are a few examples reported by
Congressional investigators:

Congressman Dingell, heading the House Subcommittee on Oversight and
Investigations, said:[1]

"Disturbing trends emerge from these cases. First, there seems to be a
disinclination to prosecute the responsible corporate officers of large
corporations. In the case of Weyerhauser... the DOJ overruled both the
EPA and the U.S. Attorney, and no individuals were charged even though
the investigation showed that a Weyerhauser [paper] mill... had
KNOWINGLY dumped toxic... waste... into a stream for at least a
decade." [Emphasis added.]

Dingell went on to point out that, in contrast, a small businessman
with a plant near the Weyerhauser mill was convicted of felony charges
for illegally burying ten drums of dried paint.

Dingell says further: "Another closely related trend that we are
finding is the tendency to settle criminal cases by only having a
corporation pay a monetary fine. By substituting fines for individual
accountability, environmental crime becomes just another cost of doing
business and the whole purpose of the criminal law, which is to
establish individual responsibility, is undermined."

He cites the example of PureGro, a subsidiary of the giant Unocal
company. Corporate officials had KNOWINGLY allowed toxic waste to be
dumped in an open field, poisoning farm animals and perhaps causing the
death of one person. When caught, the company was willing to plead
guilty to a corporate felony and pay a substantial fine, but the state
attorney's office rejected the offer in order to pursue criminal
charges against responsible corporate officials. DOJ took over the case
and allowed the company to plead guilty to one misdemeanor and to pay a
$15,000 fine.

Case after case showed that corporate officials, who had knowingly
allowed illegal dumping and other mismanagement of toxic wastes, and
who could have been sent to prison as a result, were let off the hook
by DOJ. Additional corporations named by Dingell and by a second
Congressional report[2] were Chemical Waste Management, United
Technologies, U.S. Sugar, Hawaiian Western Steel, and the Thermex
Energy Corp. The most notorious case, however, and the one that
received the most publicity, was the Rocky Flats nuclear weapons plant
in Colorado, run by Rockwell International for the U.S. Department of
Energy. This plant is extensively contaminated with plutonium and toxic
wastes and will cost more than one billion dollars to clean up.

A third Congressional report, from Representative Wolpe, Chairman of
the House Subcommittee on Investigations and Oversight,[3] points out
that, "Rockwell officials responsible for the facility knowingly
violated the law over prolonged periods of time and aggressively
resisted all efforts to force them to comply with environmental
standards."

Among the violations mentioned in the report, which Rockwell officials
were aware of, were: the burning of plutonium-laced hazardous waste in
an illegal unlicensed incinerator for at least ten years as part of a
phoney "plutonium recovery" scheme; illegal unlicensed storage of mixed
toxic and so-called low-level nuclear waste which leaked into nearby
public waters; and false certification that the company was in
compliance with government environmental standards.

Representative Wolpe's report goes on: "Although the prosecution
collected significant evidence of criminal wrongdoing on the part of
high-level Rockwell officials, they did not indict them on either
felony or misdemeanor charges. In fact, before they had even directed
their investigators to finally compile the evidence that had been
collected against individuals, and before they had formally reviewed
that evidence, the prosecutors had established a 'bottom line' for
settlement purposes that there would be 'no individual felony
indictments.'"

However, Rockwell's notoriety is not due to the nature of its
violations. Indeed, there are even worse among the 20 cases that
Richard Emory initially investigated. Rocky Flats/Rockwell hit the
front pages because the grand jury hearing the case rebelled and
refused to go along with the DOJ cover-up. A Colorado reporter
following the story wrote:4

"[The prosecutor] refused to subpoena a witness jurors wanted to
question. They directed witnesses not to answer questions posed by the
jurors. They refused to help the jurors draft an indictment they wanted
to issue. They told the jurors it would be 'inadvisable' for them to
continue to meet. They refused to help the jurors draft a report....
There's a legal term for this pattern of conduct: obstruction of
justice."

Finally, the jurors drew up their own indictment, which the prosecutor
refused to sign. The grand jury then drew up its own report, which it
released to the public. At that point the FBI began investigating the
grand jury, thus placing the federal government in the absurd position
of preparing to prosecute grand jurors for pointing out the
government's failure to prosecute criminals.[5] The FBI investigation
continues today.

The head of the Environmental Crimes Section of the Department of
Justice was Neil Cartusciello. His name, and that of Criselda Ortiz,
one of the supervisory lawyers working under him, appear frequently in
the Congressional reports as two of the principal perpetrators of these
sweetheart settlements. These reports show that, typically, when a case
would be prepared against a big name polluter by a U.S. Attorney or a
state attorney general which included criminal charges against
individual corporate officials, Cartusciello or Ortiz would arrange to
take over the prosecution and regardless of how much evidence had been
amassed it would always be, in their view, insufficient.

By early 1992, reports of these goings-on had also reached Congressman
Dingell (who is known as "the junk yard dog" of the House of
Representatives), and his staff started investigating. EPA gave Richard
Emory the task of responding to the Committee's inquiries. The
Committee staff did not know about the internal investigation that
Emory had been conducting and Emory didn't particularly want to tell
them, knowing the potential for embarrassment to the Bush
administration. Nevertheless, when the direct question was put to him,
he felt he had no choice but to tell the truth, thus providing Dingell
with the material that served as the basis of the three Congressional
reports and several Congressional hearings.

As a reward for telling the truth, instead of lying and covering up (as
ambitious bureaucrats are expected to do when the administration's
reputation is at stake, especially during a presidential election year)
Emory was removed from the position he had held for a year and a half
and was ordered to stop all work connected with these "problem cases".
In spite of numerous citations for efficiency and excellent performance
over the years, he was treated like a pariah and reassigned to a
meaningless low-level job.

Meanwhile, Rep. Dingell held hearings in September, 1992. Dingell tried
to follow up on Emory's revelations by questioning the DOJ officials,
but DOJ stonewalled him. It became a campaign issue when then-Sen.
Albert Gore claimed that, "George Bush and Dan Quayle are protecting
their rich friends who own the smoke stacks and pollute our
environment."[6] However, despite Al Gore's brave words, the
stonewalling did not end with the election of Bill Clinton. Only when a
Congressional panel voted to authorize subpoenas did Clinton's Attorney
General, Janet Reno, decide in June 1993 to conduct a 12-week internal
investigation of the Environmental Crimes Section. Meanwhile the FBI
continues its investigation of the Rocky Flats grand jury, while
neither President Clinton nor Janet Reno has responded to the Rocky
Flats grand jury's request for an investigation into the government's
actions.[7]

Meanwhile, Neil Cartusciello and Criselda Ortiz are still in their
jobs. The man who removed Richard Emory, his boss, Earl Devaney, a
retired bodyguard for Dan Quayle, is still in place. It didn't take a
12-week internal investigation to remove Dick Emory, the only person
punished in this whole scandal, who is now spending more money than he
can afford in legal fees to try to restore his reputation.

An EPA whistleblower once formulated "Dietrich's Law,"[8] which says,
"No one in EPA ever gets sent to jail, or loses his job, or suffers any
career setback for failing to do what the law requires, and the
corollary, many people ruin their careers in EPA by trying to do what
the law requires."

--William Sanjour

=====

[1] John Dingell, "The Department of Justice Undercutting the
Environmental Protection Agency's Criminal Enforcement Program,"
memorandum to the Subcommittee on Oversight and Investigations, Sept.
9, 1992. See also Dingell's opening statement to the subcommittee Sept.
10, 1992.

[2] Jonathan Turley, CRIMINAL ENVIRONMENTAL PROSECUTION BY THE UNITED
STATES DEPARTMENT OF JUSTICE [prepared for Rep. Charles E. Schumer,
Subcommittee on Criminal Justice, House Committee on the Judiciary].
Washington, DC: National Law Center, George Washington University, Oct.
19, 1992.

[3] Howard Wolpe, THE PROSECUTION OF ENVIRONMENTAL CRIMES AT THE
DEPARTMENT OF ENERGY'S ROCKY FLATS FACILITY (Washington, D.C.:
Subcommittee on Oversight and Investigations, House Committee on
Science and Technology, Jan. 4, 1993.

[4] Byron Abas, "Dingell's Justice Probe is Justified," WALL STREET
JOURNAL (July 22, 1993), pg. A15.

[5] Jonathan Turley "Free the Rocky Flats 23," WASHINGTON POST Aug. 11,
1993, pg. A19.

[6] Michael Isikoff, "Reno Probes Environmental Crime Unit," WASHINGTON
POST (June 16, 1993), pg. A12.

[7] Abas, cited above in note 4.

[8] William Sanjour, WHY THE EPA IS LIKE IT IS AND WHAT CAN BE DONE
ABOUT IT (Annapolis, Md.: Environmental Research Foundation, 1992).

Descriptor terms: misfeasance; malfeasance; epa; doj; environmental
crime; lawsuits; investigations; richard emory; whistle blowers; john
dingell; weyerhaueser; puregro; unocal; cwmi; united technologies; us
sugar; hawaiian western steel; thermex energy; golden, co; plutonium;
doe; rockwell international; howard wolpe; fbi; neil cartusciello;
criselda ortiz; coverups; al gore; janet reno; earl devaney; dietrich's
law; gary dietrich; william sanjour;