JAN J. NOLAN, CHRISTOPHER P. KRALICK and GERALD G. JOHNSTON : Unearthing Eco-Criminals : D.A. Special Unit Aims to Clean Up on County Polluters

As the public discovers environmental protection, prosecutors are discovering environmental crime. From the Justice Department in Washington to city attorney’s offices around the country, environmental protection has suddenly become a front-burner issue, and new resources are being devoted to the complex task of enforcing pollution laws.

Environmental crimes can range from clandestine dumping of toxic waste to unauthorized emissions of chemicals to violations of obscure monitoring or record-keeping rules. In the past, most such transgressions drew only small fines or warnings, and criminal prosecutions were rare.

But today, empowered by new legislation beefing up the penalties for many environmental crimes, prosecutors are seeking felony convictions carrying heavy fines and jail sentences for polluters. Illegal dumping accounts for the most serious cases, but less damaging violations of previously unenforced laws--such as those requiring the monitoring of underground fuel tanks--are also drawing attention.

The complexity of many environmental regulations, however, can make environmental prosecution a difficult business. Prosecutors must undertake lengthy investigations to determine the source of pollution, for example, and then make tricky judgments about who is ultimately responsible for it and how heavily they should be punished.

In the Orange County district attorney’s office, the environmental crime unit has more than doubled in size over the past year, and now includes two full-time and one part-time deputy district attorneys, two investigators and a paralegal. Times staff writer Jonathan Weber recently spoke with unit supervisor Jan J. Nolan and deputies Christopher P. Kralick and Gerald G. Johnston about their priorities as environmental prosecutors and about how they handle some of the more difficult aspects of this new area of law.

Q. What are some of the more serious environmental crime cases that have been prosecuted over the past several years?

A. Nolan: First of all, you have to understand that this unit is fairly new. It started about four years ago, but in the past year we have had a significant change in personnel, and we have enlarged the unit. So we can go back about a year.

One of our major current cases is against the Metropolitan Water District. Their plumbing system (allegedly) discharged some toxic chemicals into a creek in Santa Ana Canyon, and several bicyclists who rode through the creek suffered burns on their legs. So we have felony charges pending against the MWD, and we have misdemeanors against some of the officers and directors of the corporation.

Q. What other major cases are pending?

A. Johnston: We are reviewing allegations against W.C. Richards Co. (operator of an Anaheim paint manufacturing plant). In that case, we were anonymously informed that the company was unlawfully disposing of its hazardous wastes, solvents and other things that were byproducts of the paint manfacturing process. Ordinarily, you have to manifest (register) these products and dispose of them at a proper facility. It’s very expensive, about $500 a barrel.

What allegedly was happening at W.C. Richards was that employees each day were taking those waste products and mixing them with sawdust. They would then take that mixture and shovel it into a dumpster, which was put out for disposal at an ordinary landfill. As far as we know, all those substances went to the Brea-Olinda landfill, and under state law that is not a proper disposition of those kinds of waste.

Q. You said that you got an anonymous tip. How do you generally find your leads in these kinds of cases?

A. Johnston: In cases where you have unlawful dumping, you often have employees who are aware of it and become disgruntled, or become worried about their safety or the safety of others, and they will call some regulatory agency. Whatever agency hears about it will then usually come to our environmental crime task force, which meets once a month to discuss cases that have come up. From there, we will frequently initiate investigations.

Q. Who is on the task force?

A. Nolan: It’s chaired by our office, and it includes the California Highway Patrol, the Department of Fish and Game, the Health Services Department, the Regional Water Quality Control Board, the Orange County Sanitation District, the Orange County Environmental Management Agency, and the County Fire Department and local fire departments. The Air Quality Management District is part of it, and we hope to get them to start attending.

Q. When was this task force put together?

A. Nolan: About three years ago.

Q. You said the task force meets once a month. How many cases are discussed at each meeting?

A. Kralick: About 15 or 20.

Johnston: And a lot of these things carry over from month to month. Many of these investigations are lengthy and complex, and it might take four or five or six months to put one of these cases together. We put together the investigations, and the agencies with the proper authority and interest will coordinate in different cases.

Q. How many cases do you expect to prosecute this year?

A. Johnston: Probably around 100. But we have a lot of cases coming in. Environmental awareness is expanding so much that many more agencies are now becoming interested and coming to us with the cases.

Q. What are the largest categories of violations?

A. Nolan: About half will have to do with underground storage tanks. We’ve made a big effort in enforcing those rules. (Owners of underground storage tanks used for fuel and waste are required to monitor them for leaks and remove them if leaks are found.)

Q. What are the other large categories of environmental crime?

A. Kralick: Illegal disposal of hazardous waste.

Johnston: Business emergency plans is another area where we have a lot of material coming in.

Q. That’s the requirement that businesses using hazardous materials have storage and emergency evacuation plans?

A. Nolan: Yes. In most of those cases we’re concentrating on compliance with the law rather than prosecution.

Johnston: We also have quite a few smaller cases, involving dumping of materials into the bays and harbors. There is a real problem with that in Orange County, especially in Newport Harbor, and in Dana Point. The people in the boats are not always following the rules in regard to what they do with the waste from the toilets.

The materials they dump tend to concentrate in the bays, and then you get production of coliform (fecal) bacteria and the water becomes unhealthy. So we’re trying to do what we can to prosecute those cases when we can find them. We’re getting the word out: You have to take more care in dumping waste from boats.

Q. In cases where you have a choice, how do you decide whether to go for felony charges or misdemeanor charges?

A. Johnston: It’s a little hard to enumerate exactly, but I think it just depends on how serious we feel the conduct is, the degree of knowledge that the person had about the damage they were doing, the actual damage--if we can figure it out--and the volume and type of hazardous material. Generally, we’re looking for someone who has dumped a significant quantity of hazardous material for us to file a felony.

Q. How about the issue of knowing or not knowing? The law has been interpreted to say that you can bring felony charges even when someone didn’t realize that what they were doing was illegal. Supposing someone has dumped a significant amount of waste, but the person really thought that the disposal method was proper when it wasn’t. You could file felony charges, but some people might think that’s not fair.

A. Nolan: It depends on the amount of damage they have done, and the quantity of waste. In a situation like that, where they really didn’t know, and there is a problem with whether or not they should have known, we also have the civil remedy. But based on that one element, we couldn’t say whether we would file a felony.

We would have to look at all the facts. It’s a very serious situation for a corporation to have felony charges filed against them, so we don’t take that lightly. On the other hand, neither do we take lightly what they do to our environment and community.

Q. How do you decide between civil and criminal charges?

A. Nolan: That’s another very difficult evaluation. It’s going to depend on culpability, on how egregious the conduct was, on the knowledge factor, on whether or not the officers and directors of the corporation were involved.

Johnston: It’s a difficult thing to quantify. You have to evaluate all the circumstances and do what you think is correct.

Q. That seems like a pretty soft definition. There is a big difference between criminal and civil charges, and I would think there would be a more defined standard as to what is a criminal violation and what is not.

A. Nolan: We look at every case from the aspect of filing criminally. That’s what a prosecutors office does. We file criminally. If there is a lot of mitigating circumstance, such as a lack of knowledge, we may determine that it’s better for the community and the corporation to handle the case civilly. Sometimes it may hurt the corporation more to go civil. But primarily we go criminal unless there is sufficient mitigation to go civil.

Q. What are some of the special difficulties involved in environmental prosecutions? You said these are often very complex and difficult cases. What makes them complicated?

A. Kralick: The first problem is detection. When you have someone doing illegal disposal, it’s the whole nature of illegal disposal to avoid detection in any way, shape or form. Then, even if you are detected, there is the question of who will be held ultimately responsible for that act.

If you have an individual working for a company and operating a truck, and he just flushes the tanker (of hazardous material) in some vacant field, the question is whether he was acting under the authority and direction of some corporate officer, or just acting on his own to save time because he’s running behind on his schedule.

Then we have what you would have with any criminal case: lab reports, collection of the samples, preservation of the samples, analysis, getting the witnesses into court, and whatever is associated with any case.

Johnston: In addition, there are complexities you wouldn’t normally have. For one, the statutory framework is different. There is a large body of statutes and regulations that you wouldn’t normally see. There are a lot of regulatory agencies that would potentially have jurisdiction, and that will require coordination to figure out who should be doing what.

That’s one reason we have the task force, to make sure all the proper authorities are in there and participating. To give an example: If we had a spill of solvents into the ground in a waterway, we might have the Environmental Management Agency, because it’s a manmade waterway; the AQMD, because the solvents are evaporating into the atmosphere; the Health Care Agency, because it involves soil contamination; and the Regional Water Quality Board, because there is the potential that it could migrate into ground water. So there is a lot you have to think about any time these spills happen.

Q. How much time do you spend on coordination?

A. Kralick: We have an investigator, Kip Kinnings, who coordinates most of that for us. We’re very lucky. He’s very experienced, and has been doing this for a number of years, and he has developed very good communication with all the different agencies, which helps us tremendously.

Q. Do you do any kind of special training to handle these cases?

A. Nolan: When we enlarged the section, the deputies got together and decided it would be a good idea to go to classes at UC Irvine having to do with the regulatory framework, investigations and a series of other things. Also, the California District Attorneys Assn. puts on seminars, and recently they had a three-day seminar here in Garden Grove on environmental issues. In June, there will be an advanced seminar on environmental crime. It’s a continual training process that we either do on our own or through the D.A.s’ association. We’re constantly learning.

Q. Clearly, environmental crime is a rapidly growing field. Los Angeles Dist. Atty. Ira Reiner has made it a major priority in his office. How big a priority is it in this office?

A. Nolan: In the last year, we have made it a bigger priority. Our district attorney, Mike Capizzi, has taken a great interest in this unit, allowed us to expand it with the deputies we have, and I’ve been told that if we need additional deputies to handle the workload, we certainly will get them. It’s getting a lot of attention.

Q. Do you think you will need more deputies?

A. Nolan: Absolutely.

Q. Do you have an ideal size in mind?

A. Nolan: You never know where it’s going. As environmental crime gets more attention, as more people call in with information, as we get more information from other agencies, we could grow up to 25 or 30 deputies. Let’s hope it doesn’t get that big, because a lot of our work here is prevention. As we get the word out about what we’re doing and how we’re working, we’re hoping corporations will comply with the rules and we won’t be in a position to have to expand the unit.