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Bill to help prosecution of environmental crimes dies: State continues to use fines as feds seek jail time

March 3, 2008

A bill that would have removed hurdles to state and local prosecution of environmental crimes has perished in committee, leaving the federal government virtually alone as the sole seeker of jail time for the worst offenders.

With the demise of Senate Bill 199, the Indiana Department of Environmental Management will continue to resolve most pollution cases through civil penalties rather than bringing criminal charges.

Last year, IDEM assessed $5.2 million in civil penalties, down from $7.75 million in 2006 but up substantially from $2.03 million in 2005.

SB 199, by State Sen. Beverly Gard, RGreenfield, would have designated certain environmental violations as crimes and established tougher penalties for substantial harm to the environment and for loss of life. The bill called for fines as high as $100,000 and set out considerations for sentencing.

It also would have eliminated an inordinately high standard for demonstrating harm "and causation between that harm and the alleged criminal act," according to Indianapolis-based not-for-profit Improving Kids' Environment.

Still, SB 199 would have allowed a court, upon sentencing, to consider whether a person "did not know and could not reasonably have been expected to know" that a contaminant discharged was capable of causing injury and certain types of damage to the environment.

The U.S. Environmental Protection Agency has raised concerns in the past that Indiana's law was not as strict as the federal definition of environmental crimes. Weaknesses also were identified last year by the state environmental crimes task force.

One problem caused by the broadness of state environmental law is that, "because a prosecution under the statute requires knowledge of many other environmental statutes and rules, prosecuting attorneys are often reluctant to bring a prosecution in an environmental case," said the committee's 2007 annual report.

Local prosecutors need to feel confident in bringing cases, said Sandra Flum, intergovernmental relations director for IDEM.

"The really sad part is, it's hard to prosecute criminals for environmental crimes," Flum said.

Rep. Ryan Dvorak, D-South Bend, who heads the environmental affairs committee, said the bill needed more work, but "we just weren't able to generate all the input in time."

Flum held out some hope that parts of the bill could be revived in some form through conference committee, though Dvorak said that's unlikely.

The vast majority of environmental violations in Indiana are handled through civil litigation, brought by IDEM. The two largest financial penalties assessed in 2007 were for air pollution violations: $2.59 million against Jupiter Aluminum, in Hammond; and $270,000 in South Bend against New Energy Corp., the state's oldest ethanol refiner.

In Indiana, at least, criminal prosecution of environmental crimes has been the province of the federal government.

Even under federal law, one of the biggest burdens is demonstrating that the action was intentional, said Steven DeBrota, an assistant U.S. attorney in Indianapolis and veteran prosecutor of some of Indiana's biggest environmental criminal cases.

Investigators often must determine whether a person is an employee ordered to dump something and is clueless-or is the one who deliberately hatched the idea. The challenge is determining, "What did they really know?" said Gayle Helart, an assistant U.S. attorney in Indianapolis.

Federal investigators said in recent years they've seen an uptick in referrals of cases from state officials and suspect it's attributable to Indiana law requiring a higher burden of proof in criminal cases.

The cases that wind up in the U.S. Attorney's Office are "the bad of the bad," said Timothy Morrison, acting U.S. attorney for the Southern District of Indiana.

Among them: Derrik Hagerman, 53, of Terre Haute, was sentenced by U.S. District Judge David Hamilton to five years in prison. The employee of Wabash Environmental Technologies was convicted of falsifying pollution discharge reports. District Court Judge David Hamilton described the conduct as "cold-blooded deception for profit."

Often, DeBrota and Helart rely on witness accounts to get to the bottom of cases. Even with solid leads, these cases involve months of poring over records or lab samples that have been carefully altered.

"Environmental crimes are very technically complex," DeBrota said.

Yet, so far, the U.S. Attorney's Office has prevailed in dozens of big cases.

"Our conviction rate in environmental cases since 1990 is 100 percent," DeBrota said.
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