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April 1991
ENVIRONMENTAL CRIMES: INVESTIGATIVE BASICS
By
Martin Wright
Deputy Assistant Director
Office of Criminal Investigations
Environmental Protection Agency
and
William Imfeld
Assistant Special Agent
Albany, New York, FBI Field Office
Chemical wastes have been dumped into America's environment
for over 350 years, dating back to Pilgrim settlements in
Massachusetts and the manufacture of saltpeter and alum. By the
late 1930s, the chemical industry in the United States was
producing over 170 million pounds of synthetic-organic chemicals
annually. This figure skyrocketed to an estimated 2 trillion
pounds annually by the late 1980s, a direct result of the
"chemical revolution" that has transformed America since World
War II. (1)
While the chemical revolution benefits all of us by
creating new products to enhance our living standards, it also
has a significant downside. It has created over 80 million
pounds of hazardous waste, and alarmingly, if early 1980s
estimates of only 10 percent proper disposal are accurate,
America faces an enormous silent enemy. (2)
BRIEF HISTORY
Pollution laws existed at both the State and Federal levels
by 1899; however, more than 60 years passed before there were
criminal sanctions for illegal disposal of hazardous wastes. In
the late 1970s and early 1980s, the Resource Conservation and
Recovery Act and "superfund" legislation finally allowed
prosecutors to seek stiff criminal sanctions for the illegal
disposal of hazardous wastes. As a result, tremendous progress
has been made in the effort to enforce environmental laws.
Approximately 614 indictments or informations have been filed,
over $31 million in criminal fines have been imposed, and 474
corporations or individuals have been convicted. In addition,
these cases have set precedents in the field of environmental
law.
Because of the general public's heightened awareness and
concern, environmental crimes are gaining the attention of law
enforcement personnel, and many States already have established
active environmental crime investigative units. However, in
order to investigate these crimes successfully, it is necessary
to develop an investigative plan.
INVESTIGATIVE PLAN
A typical environmental crime investigation may begin with
a complaint from a former disgruntled employee, who says that a
certain company, in order to avoid the high costs of legal
disposal, buried over 300, 55-gallon drums of hazardous waste in
the back part of the company's property. If the allegation is
determined to be credible, several critical steps should be
taken. Investigators should:
* Identify which hazardous waste is involved
* Identify who is responsible for the illegal waste
disposal
* Document the investigation in order to prove criminal
intent
Investigators can learn important information about the
companies in question by checking a variety of sources.
Investigators should familiarize themselves with these sources.
SOURCES OF INFORMATION
As soon as a case is opened, investigators should learn as
much as possible about the suspect company. They should
determine both what the company is authorized and not authorized
to do. They should also determine what documentation the
company is required to maintain so they will know what should be
reviewed or inspected when investigators confront the company.
And, it is important to anticipate what hazardous materials may
be involved by reviewing documents on past operations and
violations.
Much of the information investigators need is available
from State, local, and regulatory agencies. For example, States
maintain lists of authorized hazardous waste generators and
transporters, as well as treatment and storage/disposal
facilities. Fire departments sometimes have information
concerning on-site inspections or unusual occurrences at the
company's facilities. Health departments may have complaints of
contamination in nearby areas. In addition, licensing agencies
have information about business operations, company officers and
owners, and annual reports. And, reports filed with the
Securities and Exchange Commission may reveal principal
products, legal proceedings, financial data, directors/officers,
and other significant information.
Informants are another good source of information. They
may be able to pinpoint specific details about illegal
activities, such as when and where these activities occurred,
and what efforts were made to conceal the illegal acts.
Once investigators learn as much as possible about the
suspect company, they should decide how the investigation should
proceed, what investigative techniques should be used, and the
legality of those techniques.
THE INVESTIGATION
There are several effective investigative techniques to use
during hazardous waste investigations, including:
* Stationary, moving, and aerial surveillance to document
ongoing criminal activity
* Long-range photography and closed-circuit television to
document probable cause
* Tracing the origins of drum and barrel markings to
manufacturers and purchasers
* Remote monitoring devices to gather evidence
* Consensual monitoring of informants and cooperating
witnesses to obtain first-hand incriminating statements
* Grand juries, which may result in unexpected evidence
through compelled cooperation
Throughout the investigation, it is important for
investigators to keep detailed notes on what they see, hear,
taste, smell, and feel. Since exposure to hazardous materials
causes physiological symptoms, investigators should let their
senses help them in the investigation. It is also a good idea
for investigators to take photographs to provide clear evidence
of what they see.
While gathering evidence to substantiate criminal
violations, it is also important to note any precautions the
company has taken to prevent waste from escaping, such as
fences, settling ponds, warning signs, and monitoring devices.
If the company uses these precautions as a defense during
prosecution, investigators should be ready to explain why they
did not work.
SUPPORT TEAM
Another important step in hazardous waste investigations is
to assemble a technical team to assist in the investigation.
This team of experts offers technical and legal advice to the
case investigators.
As the investigation progresses, it is important to build
an investigative support team to ensure proper preparation and
execution of a site sampling plan, proper evidence collection
and chain of custody, and proper analyses, storage, and disposal
of samples. For example, from the onset of the investigation,
the prosecutor should be available not only to recognize and
interpret legal nuances but also to evaluate the potential for
prosecution. Also, as the need arises, investigators should add
other specialists to the team, including:
* Technical specialists, such as engineers, chemists, and
geologists, who can give guidance on what to sample and
how to sample properly
* Equipment operators for digging equipment, barrel
handling devices, remote sensing and sampling devices,
and a variety of hand-operated equipment necessary for
unearthing buried evidence
* Health and safety specialists who can give advice
regarding the dangers of possible exposure to hazardous
substances and advice on what equipment and methods to
use in order to maximize the protection of search
personnel
* Regulatory agency personnel to evaluate documentary and
physical evidence to determine whether the continued
operation of the company would jeopardize the public's
health
* Other investigative personnel to photograph the site,
maintain the search logs, identify and interview persons
present at the facility, prepare sketches and field
notes, and prepare chain-of-custody forms and receipts
In addition, there is a need for security and safety backup
personnel. This should include police to assist in crowd
control, fire department and emergency medical personnel in the
event of an accident or possible explosion or fire during the
search, and HAZMAT (hazardous material) personnel to assist in
decontamination and confinement, if there is some exposure to
hazardous substances.
During the preliminary investigation, investigators should
attempt to answer as many questions as possible without
intruding on the company's property. However, in order to
obtain answers to all of the questions, company officials must
be confronted, and this action may require a search warrant.
SEARCH WARRANTS
Search warrants allow investigators to go onto private
property to investigate further illegal hazardous waste activity
and to obtain samples of hazardous waste. However, before a
search warrant can be issued, probable cause that a crime has
been committed and that evidence exists in the place to be
searched must be shown. Investigators should document their
case through information they have developed during the
investigation, as well as other supporting exhibits, such as
maps, photographs, manifests, citizen complaints, and off-site
monitoring results.
Of paramount importance when a search is conducted is
recognizing that the persons executing the warrant may be
exposed to hazardous substances. Therefore, no warrant should
be executed until there is a health and safety plan that is
understood by all search participants. Also, no samples of
hazardous or potentially hazardous substances should be taken by
other than properly trained and environmentally protected
personnel.
Prior to serving the warrant, each person on the
investigative team should read the search warrant and affidavit.
It is important that they understand what is within the scope of
the warrant, such as items to search and seize and places to
search. The team should be able to locate and secure the
necessary evidence in an efficient and effective manner that is
safe to both investigative personnel and the surrounding
community.
CONCLUSION
The disposal of hazardous wastes in America is not a new
problem. What is relatively new, however, is the public's
heightened awareness of this environmental problem. In the last
decade, well-planned, aggressive team approaches to
environmental law enforcement have been the key to successful
prosecutions for the illegal disposal of hazardous waste.
Through experience and proper training, law enforcement officers
can detect and investigate environmental crimes successfully.
This, in turn, may ultimately serve as a deterrent to those who
attempt to shortcut the system at the expense of the public's
health.
FOOTNOTES
(1) Christopher Harris, William L. Want, and Morris Ward,
Hazardous Waste, Confronting the Challenge (Westport,
Connecticut: Quorum Books, 1987), p. 5.
(2) Samuel Epstein, Lester O. Brown, and Carl Pope,
Hazardous Waste in America, (San Francisco: 1982), p. 7.