=======================Electronic Edition========================
RACHEL’S HAZARDOUS WASTE NEWS #350
— August 12, 1993 —
News and resources for environmental justice.
——
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@igc.apc.org
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DIETRICH’S LAW
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
===============
[5] Jonathan Turley “Free the Rocky Flats 23,” WASHINGTON POST
Aug. 11, 1993, pg. A19.
[7] Abas, cited above in note 4.
Descriptor terms: misfeasance; malfeasance; epa; doj;
environmental crime; lawsuits; investigations; environmental
crimes section; ecs; richard emory; whistle blowers; dingell;
weyerhauser; puregro; unocal; cwmi; chem waste; chemical waste
management; united technologies; u.s. sugar; hawaiian western
steel; thermex energy; rocky flats; plutonium; doe; rockwell
international; howard wolpe; fbi; neil cartusciello; criselda
ortiz; coverups; al gore; janet reno; earl devaney; bietrich’s
law; gary dietrich; william sanjour;