Such inconsistencies notwithstanding, journalists do have to respect the investigative process when the authorities are making an honest and concerted effort to catch the bad guys. During a panel dedicated to the topic of the enforcement of environmental laws, I asked Mike Fisher, the acting deputy director of the Environmental Protection Agency’s Office of Criminal Enforcement, Forensics and Training, about ways that the press can dig into, and shed light upon, ongoing investigations.
“The way to best address the issue, from my perspective as somebody working inside the criminal justice system, is not the way you sometimes see on cop shows, where you’ve got a detective who’s kind of slipping information to somebody who writes the story,” he said, “but rather for you all, and for us, to explain what portions of the process are public information.”
Fisher went on to explain that grand jury proceedings are, by law, kept secret and those who provide grand jury information to the press can be prosecuted. Once charges are filed, however, they are public information. “And more often than not,” he said, “the Department of Justice prosecutors we work with file what’s called a speaking indictment that tells you more than just, ‘the government alleges that XYZ Company committed this particular offense under the Resource Conservation and Recovery Act.’ It tells the story of the criminal conduct and then it has the allegation at the end of that document.” In addition, search warrant affidavits are almost always available to reporters.
“So there are places in this process, even before trial, for the media to get access to public information,” Fisher said. “But we, especially the prosecutors, are always going to be concerned about preserving the defendant’s ability to get a fair trial, and lawyers are subject, both at EPA and DOJ, to bar ethics obligations that tell us things ought to be tried in courts and not in the press. That’s a very proper constraint on us.”
Jerry Phillips, the director of the Florida chapter of Public Employees for Environmental Responsibility (PEER), said that to ferret out information about ongoing investigations, it helps “to be a geek.” He recommended perusing the Quarterly Non-Compliance Reports issued by state agencies for pollution violations, paying particular attention to facilities that wind up on the Significant Non-Compliance (the term used in the Clean Water Act and Resource Conservation and Recovery Act programs), the High Priority Violation (the term used in the Clean Air Act program), or the Serious Violator (the term used in the Safe Drinking Water Act program) lists. These are the most serious violations in the EPA database.
That information is available at the agency’s Enforcement & Compliance History Online (ECHO) website, which launched a new interactive mapping tool in September that allows reporters to access federal and state enforcement information and to compare enforcement actions by state.
There are ways for journalists to play a slightly more active role in environmental law enforcement, however. Fisher cited the example of Texas’s McWane Industries, one of the world’s largest manufacturers or cast-iron water and sewer pipes. In 2003, a nine-month investigation by The New York Times, the PBS television program Frontline, and the Canadian Broadcasting Corporation, which found that since 1995 there had been 4,600 recorded injuries (“many hundreds of them serious ones”), nine deaths, and more than 400 Occupational Safety and Health Administration (OSHA) violations at McWane’s foundries. Following the report, the EPA and DOJ launched investigations that resulted in numerous convictions and tens of millions of dollars in penalties.
On the opposite end of the legal process, Fisher cited the example of Albania Deleon, who issued fraudulent asbestos-removal training certificates to hundreds of untrained workers in Massachusetts from 2001 to 2006. Deleon fled to the Dominican Republic two days before her sentencing in 2010 and landed on the EPA’s fugitives list. Dominican authorities found and arrested her nineteen months later, and handed her over to the US Marshalls.