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Remarks Of The Honorable David J. Hickton United States Attorney For The Western District Of Pennsylvania At The Environmental Compliance And Criminal Enforcement CLE
United States
Thursday, December 9, 2010

Good afternoon.

Today, I have been U.S. Attorney for 120 days.  I have been very busy.  Since I began in August, I have done a thorough review of the assets and inventory of the office - I have met with each attorney, traveled to D.C. many times; to Johnstown and Erie - met with all community, law enforcement and media stakeholders.  I have visited with the Judiciary.  I have met with the President, the Attorney General several times; all of the Assistant Attorney Generals several times; the FBI Director, the National Security Advisor, and many other employees of the Federal, state and local law enforcement apparatus, including all of the 3-letter acronym agencies if you know what I mean...

In October, we announced an office reorganization.  My intent was to capitalize upon the strong existing talent and leadership and inject dynamic change into the organization.

I think we achieved that and I am pleased to tell you there is a renewed sense of energy; a renewed sense of mission and a renewed sense of excitement in the U.S. Attorney's Office.

The new leadership includes Soo Song as First Assistant U.S. Attorney; Steve Kaufman as Criminal Chief; Mike Comber as Civil Chief; and Rebecca Haywood as Appellate Chief.  In addition, Leo Dillon serves as Deputy U.S. Attorney and Bob Eberhardt as Counsel for Ethics and Professional Responsibility.  We also created an Executive Committee headed by Nelson Cohen.  The Executive Committee includes some of our most experienced lawyers including the three former U.S. Attorneys in the office and some of our newest lawyers. The Executive Committee meets with me monthly and concentrates on planning, training, succession, the diversity program, the pro bono program and some large case reviews.

The Executive Committee gives advice - good advice - on issues often neglected due to the press of the case work and it also allows us to engage in out-of-the-box thinking on issues and strategies which offer us the opportunity for process improvement.  The Executive Committee has been an exciting addition to the U.S. Attorney's Office and Nelson has provided excellent leadership.

The most overwhelming impression I have, after four months, is my respect for the talents and faithfulness of all of the professionals at the U.S. Attorney's Office and the Department of Justice.  You have to see it to appreciate it.  The career professionals I work with are amazingly dedicated, extremely skilled, and have been very helpful to me.  Whatever success I have will be due to them and serving among them is the privilege of my professional career.

In the area of environmental law enforcement, this Administration has placed a high priority upon the enforcement of the environmental laws, both criminal and civil.  In addition, Attorney General Eric Holder has made the Environmental Justice effort a key component of his initiatives.  Simply put, the Attorney General has prioritized prosecuting environmental crime in disadvantaged communities where citizens are least likely to be able to fend for themselves and most likely to be victims of "shortcuts," which risk human health and the environment.

Effective criminal enforcement sends a clear message that environmental crimes and the health risks that come with these crimes will not be tolerated anywhere, especially in the most vulnerable and disenfranchised communities.

The Department has a proven record of prosecuting environmental criminal cases wherever they are uncovered, regardless of the race or socioeconomic status of either the perpetrators or the victims.

Environmental justice means taking a firm stand in bringing these criminals to justice.  For example, Robert Lucas, Jr. , a land developer in Southern Mississippi, bought 25-thousand acres of timber land an subdivided it into two- to five- acre parcels for pre-manufactured homes.  Lucas was specifically warned by the Army Corps of Engineers that much of the land was wetland that could not be filled without a permit and by the local health department that the soils were too saturated to support the underground septic systems he was installing on each lot.  Lucas hired a professional engineer to certify the septic systems, and thus evade the health department's prohibitions.

With the help of his daughter, he marketed the lots to low- and fixed- income families using installment contracts and misrepresenting the habitability of the land.  Soon he had nearly 600 families in his Big Hill Acres subdivision, many living in third-world country conditions with raw sewage backing up into their homes and surfacing in their yards.

Lucas and his co-defendants were convicted if conspiracy to commit fraud and to violate the Clean Water Act.  Lucas received a prison term of nine years, his two co-defendants each received sever years and all were assessed fines and mitigation in the millions.

Another example yesterday in Kentucky is illustrative.

The Department of Justice on behalf of the U.S. Environmental Protection Agency, along with the Commonwealth of Kentucky, filed a complaint and entered into a consent decree with Logan Aluminum Inc. to settle alleged violations of the Clean Air Act's National Emission Standards for Hazardous Air Pollutants for Secondary Aluminum Production occurring at Logan Aluminum's Russellville, Kentucky, secondary aluminum facility.

The consent decree resolves claims of the United States and the commonwealth under the Clean Air Act and related provisions of the laws of the commonwealth. Under the terms of the decree, Logan Aluminum will pay a civil penalty of $285,000 and install a pollution control device called a baghouse for one of its furnace's capture/collection systems. The civil penalty is the second highest to be negotiated in dealing with a single facility for violations of the Clean Air Act's secondary aluminum production regulations.

The complaint was filed and the consent decree lodged contemporaneously in the U.S. District Court for the Western District of Kentucky on December 8th.

Another recent illustration is the indictment of a Gary, Indiana, Wastewater Treatment Operator and Managers Charged with Conspiracy and Violating the Clean Water Act.  United Water Services entered into a 10-year contract to operate the Gary Sanitary District wastewater treatment works in 1998, in exchange for $9 million annually.

United Water's contract was renewed in May 2008. As contract operator, United Water handled the operation and maintenance of the treatment works, and was responsible for environmental compliance.  To ensure compliance with the discharge permit, United Water was required to take periodic representative wastewater samples, including a daily sample to determine the concentration of E. coli bacteria in the wastewater.

According to the indictment, the defendants conspired to tamper with E. coli monitoring methods by turning up levels of disinfectant dosing prior to E. coli sampling. The indictment states that the defendants would avoid taking E. coli samples until disinfectants had reached elevated levels, which in turn were expected to lead to reduced E. coli levels. Immediately after sampling, the indictment alleges, the defendants turned down disinfectant levels, thus reducing the amount of treatment chemicals they used.

The case was investigated by the Northern District of Indiana Environmental Crimes Task Force, including agents from the Criminal Investigation Division of the U.S. Environmental Protection Agency, the FBI and the Indiana State Police. The case is being prosecuted by the U.S. Attorney's Office for the Northern District of Indiana and the Justice Department's Environmental Crimes Section.

The Assistant Attorney General for Environmental and Natural Resources is Ignacia Moreno. Ms. Moreno has had extensive experience as an environmental lawyer in the private sector at Hogan and Hartson at the beginning of her career and more recently at Spriggs and Hollingsworth.

She is in her second tour at the Department of Justice, having served in several capacities as Counsel to the Assistant Attorney General for the Environmental and Natural Resources Division under President Clinton.  She is very capable and very dedicated.

The mission of the Environmental and Natural Resources Division is to safeguard and enhance the American environment through litigation in the federal and state courts; acquire and manage public lands and natural resources, and protect and manage Indian rights and property.

This charge is accomplished through partnership with many federal and state agencies including the U.S. Attorney's Offices.  Perhaps, the best illustration of my role and the prominence of environmental law is that three weeks ago, all of the U.S. Attorney's were in Washington for a conference for one week. Two of the five days were specifically dedicated to an environmental session led by Ms. Moreno and included the principal environmental crimes Assistant U.S. Attorney for each district.  Here in the Western District of Pennsylvania that AUSA is Nelson Cohen.

If you do not know him, Nelson is a career prosecutor with a distinguished specialty in white collar matters including environmental law.  Nelson has served in this district and in the District of Alaska where he served as the United States Attorney for three years.  Many of Nelson's signature cases and achievements are in the environmental law area.

As an interesting aside, Nelson began his career as an Assistant District Attorney in Allegheny County when a District Attorney named Hickton who had won the Gourley Cup, recruited Nelson who won the Gourley Cup to join the DA's office.  Nelson is bright, capable, hard-working and experienced, and I trust his judgment.  No one has been more direct and helpful to me in my new responsibilities.  I have given Nelson wide latitude in this area.

In the interest of full disclosure, you should know, for better or worse, I have had experience in private practice as an environmental lawyer.  I was in the Chem-Dyne case; I handled a perc spill in Louisiana; I developed, prepared and traveled the country to implement an environmental emergency response plan and I was on point in defending a large spill involving potential criminal and civil claim brought jointly by the EPA, the Pennsylvania Attorney General, the Pennsylvania DEP, a local DA and Fish and Game.

You also may want to know I have been a supporter of the Western Pennsylvania Conservancy for many years.  I love our beautiful natural resources and believe they should be protected.

I know you are concerned whether we will place a priority on environmental enforcement and how we will decide whether to proceed; what will be our criteria; whether the protection of the air, water or land will be more important, and how we will address the issue of the Marcellus Shale development.

I am uncomfortable giving specific answers and I have given my regrets to the gracious offer to participate in the panel discussion or comment upon the hypothetical problems you will discuss later.  I am sure you understand my concerns and that it may be better for you to discuss these issues without me.  After all, you are sort of the Yankees and we are the Red Sox.

What I can say is this: we will be very active.  We are ready, prepared and open-minded.  We plan an active criminal and civil enforcement program.  We will weigh the violations of law and consider the egregious nature, prior conduct and other factors which always go into our decisions.

We also plan to work closely with our law enforcement partners and especially our neighboring U.S. Attorneys' offices.  This is especially relevant in our review and inventory of the Marcellus Shale issues.

I want to close by alerting you to two issues to consider.  First, it is a fact of life in environmental compliance, that industry intelligence is one of the best sources of cases.

Good corporate citizens who play by the rules and obey the law often are the best sources of information about those who cut corners and cheat and compromise our air, our water, our land and our people.  We will be very active and interested, so if you represent a good client who wishes to help us by reporting non-compliant bad citizens, contact me or Nelson.

Second, we have reinvigorated our Affirmative Civil Enforcement work in our civil division and we are open for business in Qui Tam False Claim Act cases.  If you are aware of government fraud, waste or abuse and you wish to bring that to our attention we are eager and ready to listen.

We look forward to working with you in whatever capacity we meet you.  Together we all have the responsibility to do justice and protect our environment.  This is our shared goal and our shared purpose.

Thank you for the opportunity to speak to you and I wish you a good and educational session to follow.

Updated July 14, 2015