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State-Federal Cooperation in Environmental Enforcement

May 24, 2017

As a new official within the Environment and Natural Resources Division (ENRD), I have appreciated the positive outreach from a wide range of stakeholders, especially our State partners. State attorney general offices and State environmental officials have reached out or visited the ENRD front office to share their perspectives across a broad range of issues. The Environmental Council of the States, the Association of Air Pollution Control Agencies, and other State associations have afforded me an opportunity to visit with their members to hear about their concerns and priorities. I have tried to approach these first few months of the new administration with open ears, listening more and speaking less, particularly when it comes to the States. On many occasions, when discussing a matter that is taking place in a particular State, I have asked our ENRD attorneys a straightforward question: What does the State have to say about it?

State-federal cooperation is particularly visible in the civil environmental enforcement context. Throughout the Department, from top to bottom, there is a firm commitment to cooperative relationships with the States when enforcing environmental laws that protect our Nation’s air, water, and land. Many of the laws entrusted to us and our client agencies give a primary role to the States—a reflection of the federalism principles embodied in our Constitution. We will aim to keep this principle at the forefront of our minds as we go about fulfilling our vital mission. ENRD works with individual States, as well as State organizations, such as the National Association of Attorneys General (NAAG). In January, for example, ENRD and NAAG issued a revised version of 2003 joint guidelines intended to assist federal and state attorneys in civil environmental enforcement cases. The Guidelines for Joint State/Federal Civil Environmental Enforcement Litigation provide a general framework for cooperation between sovereigns in joint civil litigation and derive from lessons learned in such cases over the years. This was the result of important work completed during the tenure of the previous ENRD Assistant Attorney General, John Cruden.

ENRD has achieved substantial beneficial outcomes with our state partners in both civil and criminal enforcement litigation thus far this year. In each of these cases, credit is due to the combined efforts of the U.S. Attorney’s Offices, ENRD, and the States. Here are just a few recent examples:

Texas: Just last week, ENRD, jointly with the EPA and the Texas Commission on Environmental Quality, announced a settlement with Vopak, a Houston-area company. The United States and the State of Texas alleged that the company failed to comply with Clean Air Act requirements to properly manage equipment at its on-site wastewater treatment facility, resulting in excess emissions of a variety of hazardous air pollutants, as well as volatile organic compounds, in an area classified as non-attainment for ozone. Under the settlement agreement, the company will install state-of-the art pollution controls at the wastewater treatment system, and use infrared cameras to detect air pollution from the facility’s chemical storage tanks that would otherwise be invisible to the naked eye. The company also agreed to pay a civil penalty of $2.5 million.

Wisconsin: After a multi-year litigation effort, we recently reached agreement with the largest remaining defendant in a case to complete the final phase of remedial work at one of the nation’s largest Superfund cleanup projects at Wisconsin’s Lower Fox River and Green Bay Site. An enormous amount of cleanup and natural resource restoration work has already been done in the area under a series of previous actions, including court orders in a federal lawsuit brought by the United States and the State of Wisconsin. This final phase of cleanup requires NCR Corporation to complete the remedial work, which is estimated to cost as much as $200 million or more over the next few years. The total cleanup costs for the Fox River Site will exceed $1 billion, to be paid by the various entities that caused the pollution rather than by taxpayers. The United States and Wisconsin reached prior settlements with most of the other parties that contributed to the polychlorinated biphenyls (PCBs) contamination at the site. Prior settlements included $105 million for natural resource damage assessment activities and natural resource restoration projects selected jointly by federal, state, and tribal government trustees. The cleanup work will reduce the risks to humans and wildlife posed by PCBs in bottom sediment of the Fox River and Green Bay.

North Carolina and Virginia: Federal-state cooperation was vital to ENRD’s recent criminal work, as well. In United States v. Vu Johnnie Nguyen, a district court recently sentenced the defendant to pay a $10,000 fine to the Lacey Act Reward Fund and complete a two-year term of probation. Nguyen previously pleaded guilty to a felony violation of the Lacey Act in connection with the sale of American black bear parts. On three occasions in 2014, Nguyen engaged in conduct that involved the sale, collectively, of 18 American black bear gall bladders, two bear paws, 16 bear claws, and 50 pounds of bear meat. The parts were transported from North Carolina to Virginia following the sale. The U.S. Fish and Wildlife Service Office of Law Enforcement and the North Carolina Wildlife Resources Commission Division of Law Enforcement jointly investigated the case.

Our prosecutors also collaborated with North Carolina law enforcement, and others, in preparing a case in which four commercial fisherman pleaded guilty to illegally harvesting Atlantic striped bass from federal waters off the coast of Virginia and North Carolina. Since 1990, there has been a ban on harvesting the species from the United States’ exclusive economic zone, and these pleas were just the latest in a string of cases investigated jointly by the National Oceanic and Atmospheric Administration’s Office of Law Enforcement, the U.S. Coast Guard Investigative Service, the North Carolina Marine Patrol, and the Virginia Marine Police.

Missouri: A second long-running criminal enterprise came to a conclusion on January 26, 2017, when the final defendant in a multi-defendant scheme to illegally purchase and sell paddlefish eggs was sentenced to pay a $5,000 fine, complete a two-year term of probation, and perform 250 hours of community service. All but one of the defendants pleaded guilty to Lacey Act trafficking violations; one was convicted by a jury of conspiracy and Lacey Act violations. The case arose several years prior when the defendants travelled to Missouri and engaged in numerous transactions with agents posing as fishermen for the purchase and sale of female paddlefish, the eggs of which are a highly valuable caviar substitute poached on a large scale from Missouri waterways. The retail value of the caviar processed by the defendants was estimated to be between $30,000 and $50,000. The case resulted from an investigation by the U.S. Fish and Wildlife Service in cooperation with the Missouri Department of Conservation and the Oklahoma Department of Wildlife Conservation.

North Dakota: In April, an oil well operator pleaded guilty in federal court to three felony counts of violating the Safe Drinking Water Act. This followed a guilty plea from another operator of the same wells. The violations arose from the operation of a saltwater disposal well, which received “produced water” constituting “brine and other wastes” commonly and generically referred to as “saltwater.” Such saltwater includes a wide array of drilling waste fluids, including hydraulic fracturing fluid, which is water combined with chemical additives such as biocides, polymers and “weak acids.” The well operator admitted to injecting saltwater into the well without first having the state of North Dakota witness a test of the well’s integrity, which is necessary to protect drinking water. He also admitted injecting fluids down the “annulus” or “backside” of the well in violation of the well’s permit which required that fluids be injected through the tubing. Finally, he admitted to failing to provide written notice to the state of the date of first injection into the well. The court will sentence both defendants this summer.

Mississippi: The operator of a convenience store and gas station in Yazoo City, Mississippi, pleaded guilty on May 3 to a criminal violation of the Clean Water Act, admitting that he discharged the contents of an underground fuel storage tank into a sewage line connected to the city’s wastewater treatment system. In April 2016, water from rainstorms leaked into one of the underground gasoline storage tanks though an inadequately maintained tank cap. The presence of water in the fuel storage tank triggered an automatic shut off, preventing the dispensing of gasoline. When a similar water leak occurred about a year earlier, the defendant arranged for a commercial tank service company to remove the mixture from the tank and dispose of it properly, by separating the water and gasoline. This time, however, the defendant pumped some contents from the contaminated tank into an opening in the sewage line, which violated the Act’s proscription on unpermitted discharges, created a fire or explosion hazard, and placed the health of the community at risk. Cooperation between EPA’s Criminal Investigation Division and the Mississippi Department of Environmental Quality regarding this illegal disposal was essential to the outcome of the case.

Multiple States: ENRD partnered with multiple states along the eastern seaboard in “Operation Broken Glass,” a multi-jurisdiction investigation into the illegal trafficking of juvenile American eels, also known as “elvers” or “glass eels,” in violation of the Lacey Act. Historically, Japanese and European eels were harvested to meet this demand. But overfishing led to a decline in the population of these eels, so harvesters have turned to the American eel to fill the void. The threat of overfishing has led all but two states – Maine and South Carolina – to prohibit elver harvesting. Those states heavily regulate elver fisheries, however, requiring that individuals be licensed and report all quantities of harvested eels to state authorities.

The Atlantic States Marine Fisheries Commission participated in this investigation, as did law enforcement personnel from Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Maryland, Virginia, North Carolina, South Carolina, and Florida, as well as local law enforcement from Yarmouth, Massachusetts, and North Myrtle Beach, South Carolina. As of mid-April, Operation Broken Glass resulted in guilty pleas for twelve individuals whose combined conduct resulted in the illegal trafficking of more than $2.94 million worth of elvers.

State environmental officials and State attorney general offices bring valuable knowledge and experience to their work, and together our federal and State teams can accomplish more for the mission of law enforcement and environmental protection than we can apart. At ENRD, we look forward to continuing this work in the months ahead.


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Updated September 29, 2017