A Dangerous Business Revisited
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Ronald Tenpas

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Since May 2007, Ronald Tenpas has served as the assistant attorney general in charge of the Justice Department's Environment and Natural Resources Division. As such, he also runs the 40-person Enrivonmental Crimes Section, which brings civil and criminal cases against companies violating the nation's pollution-control laws. In recent years, the Environmental Crimes Section has successfully prosecuted McWane, British Petroleum and others for environmental crimes involving the deaths and serious injuries of workers. This is the edited transcript of an interview conducted Dec. 13, 2007.

What does the Environment and Natural Resources Division do?

The division is a group of 420 lawyers who are mostly here in Washington, D.C. Some are out in field offices around the country. We do two things. We enforce the environmental laws, bring cases -- either criminal or civil -- against people we think violated environmental laws by polluting, by not dealing correctly with hazardous waste, or who we think owe the government money for efforts the government put forward to clean up toxic waste sites.

The other half of our work is defending the government when the government is sued about its own use of natural resources, about regulations that the government has promulgated from the various agencies about how businesses conduct their affairs. So there's an enforcement part, and there's a defending-the-United-States part of our work.

You're the lead prosecutors when it comes to the enforcement of environmental laws from a criminal point of view, right?

We are, although we work very closely with U.S. Attorneys' offices around the country as well. We have about 40 criminal prosecutors here in Washington, D.C. We have another 150 or so folks who do civil enforcement work as well. In both of those, we work with U.S. attorneys' offices who are out around the country. We have 93 of those. And so we often pair up with them on cases that are in their particular region or part of the country because they have a lot of local knowledge, expertise about the way the court works, about their local community that can be very valuable for us to work with them on cases.

How did the Environmental Crimes Section come about?

It's come about in a couple of ways. Over the years, we concluded that it's important to try to put our prosecution resources where we're going to get the biggest bang for the buck, where you're going to do the most for the environment and produce the most benefit for the public. We've come to realize over time that focusing on companies that have systematic sort of violations is a good return for the taxpayers; it's important for the environment.

A second piece of that has been just an increasing realization on our part over time that a lot of environmental violations don't just happen where things go out into a river, go up into the air and sort of just endanger the local community. A lot of times, those violations happen right there on the shop floor or right there in the facility, and they, as a result, expose workers who are there working every day. There's a nice marriage and compatibility with our trying to address environmental injuries and threats and simultaneously protect workers because they're the folks who can be most exposed by these environmental problems.

The third thing that has happened is, again, as we've done more of this work, we've realized that companies that have an indifference to their regulatory obligations, who don't really care about their environmental obligations, may be companies that are equally indifferent to safety or other workplace obligations that they have that might not be environmental crimes but nevertheless endanger workers.

Many times we find that companies that are indifferent to their environmental obligations are equally indifferent to other things that help keep workers safe: making their machinery safe, having correct warning signs, providing their workers protective gear and garments that help them in their work. We've made an effort to work with folks like OSHA [the Occupational Safety and Health Administration] so that their inspectors understand that if they see things that look like environmental violations they ought to make sure they're working with the EPA, with the local prosecutors from the U.S. attorney's office to let them know about that.

One of the more startling things we learned early on in our reporting is that if you "willfully" violate an OSHA regulation and a worker dies, it's a misdemeanor under federal law.

It sometimes can be. That's an area that's not -- many of those aren't principally environmental crimes, and so, as I say, in working on those, we're pairing up often with the investigators who have those kinds of cases to investigate.

At the end of the day, we work with the penalties that Congress has decided over time are the appropriate ones to provide. In some of those cases, McWane being an example, we have found there may be violations related to worker safety, but there are also more serious violations related to the environment where penalties are typically much more significant: maximum five years, 10 years, jail time. So we've tried to make sure we're using the full-range of enforcement options we have, including the environmental statutes for those situations.

A misdemeanor under OSHA violation, but potentially up to 15 years for a felony for an environmental violation.

That's correct. Our environmental statutes have a variety of maximums, but the ones that we typically use are felonies. That means they've got to be punishable by more than a year in jail and typically substantially more: a five-year maximum, a 10-year maximum, a 15-year maximum, as you described.

How did you come about doing the McWane prosecutions?

The McWane collection of prosecutions came about the way most of our prosecutions come about: You get a tip or you get a report. A lot of that reporting was your reporting and various other news reporting that documented what seemed to be a sort of pattern of conduct that gave us reasons to be concerned, that suggested there might be environmental violations going on. That's how most of our cases start. They start from somebody on the outside -- it may be a worker, it may be a union official, it may be a senior official in the company -- who's disturbed by what they see, or it may be outside reporting.

The McWane case is somewhat unusual: multiple jurisdictions, many plants. Explain how unusual the situation was or is. …

For the environment division at the Department of Justice, it would be fair to characterize the McWane collection of matters as unprecedented in terms of their scope and complexity. We had five different plants, four different states. We had as one of those cases the longest jury trial we've had in the history of the division that went on for about eight months. That's a long criminal trial.

That was in New Jersey.

That was in New Jersey. There was a lot to be done there because you have various investigators in districts -- all in their individual locations -- looking at their particular plant. You have some overlap in terms of the corporate staff and individuals, and so you want to make sure that the right hand and left hand know what they're doing. Our investigators in Texas understand what folks in New Jersey are finding and looking at.

At the end of the day, these plants are each located in distinct areas. The violations were unique at each site, and so we end up charging the things that we can prove at that particular location, and they're not always the same kinds of violations. But it certainly was a very significant undertaking for us and one that's been unique, so far, in our experience.

Someone told me that this was unprecedented in the 20-year history of the Environmental Crimes Section.

I think that's a fair thing to say about it. When you put all these factors together -- we've certainly had cases that involved long trials; we've had cases that have involved significant corporate penalties; we've had cases with multiple individual defendants; we've had cases where you might have a couple of different locations of the same company -- but the way all of those things came together in this collection of investigations was unique for us. ...

So this was, in a way, a backdoor way to get at the same subject?

I wouldn't call it backdoor. We think it's pretty front-door. What we do every day is try to protect the environment because environmental violations can cause lots of harm. They can obviously hurt rivers and trees and wildlife, but part of the reason we have environmental statutes is to protect people, too. So for us this is the front door, not the back door.

Why did you have to do it that way?

We work with the range of statutes and penalties that Congress gives us. It just happens to be the case here, given the conduct of the company, that the environmental statutes provided the biggest potential penalties, looked to be the most significant violations, and hence, if you can successfully prosecute, you hope over time [they will] provide the biggest deterrent and are most likely to get both this company and other companies that are paying attention to what the government's doing in enforcement, get those companies to change their behavior, to pay attention to compliance. And we certainly hope that changing conduct is going to have beneficial effects for the workers who are there at the plant, but also have beneficial effects for the surrounding environment and the surrounding communities. ...

Many of the charges of lying to a federal officer or obstruction of justice related to cases involving the injury of workers or their deaths.

That's correct. For example, in the Atlantic States prosecution, the case that went on in New Jersey, various of the obstruction charges where we said part of what the company did wrong was try to prevent federal officials, investigators, regulators from knowing what really happened. Those were charges where we said what they did was cover up things that happened with respect to accidents, so they either didn't report the accident or they had changed the arrangement of the equipment and such by the time the investigators got there, in a way that gave a misleading picture of how the accident would have occurred.

The Worker Endangerment Initiative came about, as I understand it, in part because of the McWane prosecutions. Is that correct?

Yes. As we got into the McWane set of investigations and prosecutions that was one of the things that really helped us appreciate the link between environmental violations and potentially other workplace safety violations, and also the value in investigation and enforcement for our environmental investigators: folks from the EPA, our prosecutors from the U.S. attorneys' offices. The value we could get from having them know their counterparts in OSHA and in the Labor Department.

I was a line prosecutor for a number of years before I started doing this headquarters job in Washington, and one of the things I think you know and learn pretty quickly if you're out there in the field doing cases is -- there's this saying, "all politics is local." There's a sense in which that is true of prosecutions, too. You make cases with individual prosecutors out there in the field working with individual agents, and they've got a plant or a facility, and they're trying to figure out what's going on there.

And having those local connections -- so that the prosecutor who's sitting in the U.S. attorney's office knows the phone number and the person to call at OSHA, or that OSHA regulator knows he's just walked out of a plant and instead of having to figure out: "Gosh, who do I call at EPA? And does EPA even have a local office in the same city I'm sitting?" -- they've met, they've talked about the way these cases can combine all these elements.

That makes all the difference in the world because prosecuting, investigating, we've got lots of fancy databases and things now that we use, but a lot of that still relies very heavily on the human element, on prosecutors and investigators knowing each other, being able to call each other, bounce ideas off each other, to be able to roll up their sleeves and get in a conference room and say, "What have you seen at this facility for the last two years?" And being able to share that information. It's old-fashioned, but in my view that's still the heart of the game.

Has the Worker Endangerment Initiative led to other cases?

One prominent example is a case in Texas that involves [the] British Petroleum corporation. They had an explosion at a refinery there. A number of workers were killed as a result of that.

The company has agreed to plead guilty to a violation of the Clean Air Act. The judge will, in February, entertain whether to accept the plea agreement that we proposed. If the judge accepts it, it will be a $50 million criminal fine, which is the largest Clean Air Act fine that will have ever occurred in a criminal environmental case. But that was a case that involved this close pairing of environmental investigators and OSHA investigators, because obviously it was a significant workplace accident and workplace incident.

Just so I understand, British Petroleum gets a criminal charge related to an explosion, kills 15 workers, but they're charged under the Clean Air Act.


You can see where there's a little disconnect there in people's minds.

Well, again, we work with the statutes that we have, and the one that seemed to fit best, that allowed for very significant penalties was the Clean Air Act violation. So I'll leave it to others to judge whether that's a sensible criminal regime.

Our judgment in the end is we're getting good and important results, and we're not going to be too caught up in whether we're getting those results through environmental statutes or something else.

So if you have to prosecute Al Capone for income tax evasion, that's what you'll do?

[Laughs.] That's not quite the analogy I would draw because I think a lot of times when people say that, they're sort of trying to say, "Oh, that tax charge, that really wasn't important, that wasn't what this was about; you know, [what] his conduct was really about."

I think our view is these environmental violations, they are important, and we're not just using them to get to something else.

Not to dismiss the environmental violations being important, but when human life is involved, you would expect normally a prosecutor to charge homicide or something related to that. Manslaughter or something like that. But you can't do that.

That's true. There isn't a sort of generic federal manslaughter crime, and those kinds of charges are more typically used by state and local officials in their state court cases.

You're right, we don't have that kind of charge available to us, generally, but as I say, we continue to think we've got significant charges that we can bring. We can get pretty good financial penalties, certainly, we hope, penalties that are sufficient to catch the attention of the corporate community about the importance of compliance.

In the McWane case, one of the things that surprised us when we were doing this story, with the serial violations in more than five plants. ... How did they get away with this for so long, in your mind?

In a number of cases, their violations involved lying to the government in regular reporting, and that reporting is designed to help the regulators, either environmental or safety regulators and inspectors identify places where there are problems. And so if you've got a company or group of individuals who are determined to try to cover up and stop the government from finding out what's really going on, then it's probably going to take us longer to find it and it's maybe going to go on for a longer period than any of us would have hoped. ...

Do you know if anyone at the Department of Justice has examined recently the situation at McWane plants, whether it's changed?

We get some of that information in connection with sentencing, but it goes back to a point we were talking about earlier. We're not a generalized sort of policing authority where we run in and keep looking at people once we've gotten a conviction, other than if a company's on probation, the judge may set conditions and say, "While you're on probation, you need to do these seven things as a company to help improve your performance, clean up your act, make sure these kinds of violations don't happen in the future." ...

And so we keep an eye on those things and whether it looks like they're doing anything to violate their terms of probation, but generally, once we get the conviction and they're on probation, they've paid their fine, we're not going to go back and start investigating again until we get an allegation from some credible source that there are more violations going on.

I don't think any of us want to live in a place where the Department of Justice or criminal investigators have a kind of free-standing right, any company that they're kind of interested in, to go in and start poking around. ...

If I'm a viewer watching this, what's so significant about these prosecutions, of McWane, of British Petroleum, of W.R. Grace?

I think in size and complexity and we hope, as a result, impact down the road. If you want to make the environment cleaner, if you want to make sure that workers aren't exposed to dangerous chemicals and pollutants and things like that, a piece of making that happen has to be enforcement of our laws.

There are obviously plenty of good corporate citizens out there who want to do right by their workers and want to do the right thing, but there are always going to be some for whom it's important that they know there's the threat of prosecution and there's the threat of going to jail and there's the threat that their company bottom line is going to be hit and hit significantly if they don't comply with the law.

Cases of this kind that are big, complex are important for us to do because it's also a way of companies understanding we're not afraid to take on the tough one or the tough series of ones like this, where we're going to be in five different plants all across the country, bringing together a lot of information; where we're going to have to spend a year, two years, three years investigating it before we have all the information to charge; where we're going to spend a couple of years fighting out the appeal because we care so much about it.

The big picture in why these are important is, A, you've got a lot of workers involved at these individual companies who we need to help protect and take care of. And you hope and believe that this is going to help lots of people down the road as well, by getting people to think twice, by getting that plant manager or that environmental compliance officer to stop and remember that, gosh, he just read in his trade magazine about four people being sentenced to jail because they didn't do it right. ...

Sometimes also it's just a failure to really appreciate how dangerous some of these things are, how dangerous it can be for their workers, how dangerous it can be for the surrounding community. The damage they can do to the waters that they're pouring their pollutants into, the thought of, "Oh, this is just a little bit of stuff, it can't make that big a difference."

And I think here, like in most cases, it was probably a combination of things. It was a combination of having the sense that, "Gosh, this would be really expensive for us to comply with the environmental laws" -- something I don't think is actually the case, but certainly folks having that impression -- and again, not being well educated necessarily on how dangers it could be.

But I'm talking about the McWane case.

Well, I think even that's probably true in this case as well. Profit was part of it; ignorance may have been part of it as well.

This unprecedented prosecution of McWane -- five cases, four states, I assume millions of dollars in government costs -- only one corporate official went to jail. You couldn't get up higher in the ladder?

At the end of the day, we bring the cases that we think the facts and the law allow. We certainly don't walk away from a criminal case if we think we've got one where the facts and the evidence allow us to go after senior corporate officials just because they're senior corporate officials.

If that's where the facts and evidence allow us to go, then that's where we're going to go. That hasn't been the case in this collection of investigations, although one official who was convicted was a sort of corporate-wide official for environmental compliance. And then you've also got various plant managers and senior people at the various locations.

We think those are nevertheless significant, and convictions of a corporation itself tends to also be the kind of thing that gets the attention of the senior corporate management because those are convictions that the fines and such hit at their direct bottom line.

And their reputation.


And there are two cases that are still unfinished.

Right. One of those is the case in New Jersey where we had the eight-month trial, convicted the company and various individuals, ... and the judge still needs to do the sentencing for that case and those individuals. We have another case where we had the trial, the jury found the company and individuals guilty. The company and those individuals have appealed, and we're not to the end of that appellate process yet. And so two of them are still going on in different stages in the process right now.

So there'll be more about McWane in the future.

I imagine for people like you who are following closely what's gone on in those cases, yes, there's still going to be some things to read about. The story isn't fully written yet.

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posted february 5, 2008

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