Superfund and CID: Cooperation Makes It Happen

www.oscreadiness.org

15th Annual OSC Readiness Training Program

James Justice, On Scene CoordinatorCarol Paszkiewicz, Resident Agent in Charge

Marc Callaghan, Special Agent

15th Annual OSC Readiness Training Program www.oscreadiness.org 1

CID: Who we are

CID consists of Special Agents assigned throughout the U.S. Agents are sworn

federal law enforcement officers

Have arrest and seizure authority

Carry firearms Investigate

allegations of environmental laws

ERB & CID Interaction

Emergency Response Situations Explosions, fires, releases to sewers,

waterways, fish kills, mercury spills, pipeline ruptures, dumping of hazardous waste

Remediation Sites Hazardous waste storage sites, abandonment;

burial of waste. CID Escort of OSC’s

CID Threshold: What we are looking for

Emergency Response Situations Most times not so evident as to whether or not

there was criminal activity. Some examples:

Crime Scene: Yes or No?

Fire or Crime Scene?

Crime Scene!

Facility or Crime Scene ?

Working Together on an Emergency Response

CID and OSC have different missions but common goal: determine cause of emergency

OSC: assess possible threat to environment, human health and steps to mitigate.

CID: identify possible evidence and collect it properly; interview possible witnesses.

Clearly defined independent roles but can be mutually beneficial.

CID looks for: intent (negligence/willful), pattern of behavior/history, impact to environment and community.

Remediation Sites

Storage Sites (active facilities)

Abandonment of facilities

Illegal disposal of hazardous wastes (burial/dumping etc)

OSC v CID Access to Site

Whose Authority does CID use? Abundance of caution: CID to get search warrant

or consent to search agreement from site owner. Difference is the application of the 4th

Amendment under criminal auspices. In some emergency response situations CID has

accessed the facility while under the control of an OSC. • Loss of evidence, safety issues, etc.

Flip side is when CID has control of facility first: coordinate with OSC to ensure site access agreement is ready to go when CID leaves.

CID Role Video and Photograph the scene.

Document any releases to the environment and wildlife/natural resources damages.

Staining of ground, vegetation die off, fish kills, active discharges of waste water, release of chemicals, etc.

Document any evidence: labels, tire tracks, documents present.

OSC/START photographs are discoverable in criminal case.

Processing a scene together Illegal attempted

disposal of 500+ different types of lab waste.

CID Agent went into hot zone with START. Agent was

photographer START were “clean

hands” complete photo log for agent.

2nd START assisted in collecting/display of containers and labels.

A picture tells a thousand words

The Close Range Photo

Focal point – where is the lens focused? • Digital single lens reflex have focusing feature which

tells you what it is using as focal point. • “Point and shoot” or one piece cameras do not. • Traditional film cameras don’t have them either.

Make close up photo’s relevant – either with series of shots, or showing identifiers in photo.

How to: Photography

Check lighting and the angle of the shot to make sure writing can be read. What is great about digital! See what you have

before you move on. Saving digital photos – if possible use

external drive to download photos.

What is wrong with this?

Good or bad?

What is wrong with this?

Big picture shows perspective

Close up from earlier photo

Sample Collection Photo-documentation

Create detailed sample/ photo logs, which clearly identify the person taking the sample/ photograph.

You will not remember these details three years and 30 sites later.

Failure to do this could result in an excellent sample / photograph not being admissible at trial.

Samples: Representativeness

What do your samples represent?

Are they for disposal only?

Recommendation- consider the potential for Trial (civil or criminal).

OSC’s sampling for disposal purposes may use only Field testing (pH, Flash) to bulk like-substances prior to disposal.

This may not be good enough for Trial.

CID may need samples prior to bulking to prove a hazardous waste. Additional testing may also be necessary and justified: Such as “ignitability” or “TCLP.”

Samples: Retained

OSC activities (ER’s, Remedial actions) may become criminal.

In criminal cases the samples, and even empty sample containers, cannot be disposed of during the pendency of a criminal investigation/prosecution--regardless of what the usual civil practice is or what the contract provides. If samples, or the data derived from them, are needed for a criminal case, permission must be obtained from the agent and/or prosecutor before disposal.

If the sample was taken pursuant to a search warrant, it cannot be destroyed without permission of the court.

Oftentimes, samples may also need to be retained in order to retest to address issues raised by the defense or the prosecutor.

Asbestos Sampling Issues

In U.S. v. San Diego Gas & Electric, among other things, the judge did not allow EPA to use sample results based on a "single layer" of multi-layered ACM, rejecting longstanding [1994/95] Agency interpretations of the asbestos test method required by the NESHAP rules--the 1982 method. The judge held that those interpretations were legislative rules extending the reach of the 1982 method, and since they were not promulgated through formal notice and comment rulemaking, they could not be the basis for criminal charges.

This case has not been relied on by other courts and has no precedential value. However, it raises an issue that OSCs and agents need to be aware of so that the labs use the proper procedures to ensure admissibility of asbestos sample results in enforcement cases. The defense bar is well aware of the case. In addition, OCEFT will not recommend criminal charges in cases where only a single layer of multi-layered ACM was analyzed, and there is insufficient evidence as to the other layers.

Asbestos Sampling Issues, cont’d.

Disconnect between promulgated NESHAP rules, which require use of the 1982 analytical method, and current practices of many labs which are based on the 1994 Federal Register notice that encouraged the use of the new/improved 1993 method.

The 1993 method incorporates most of the 1982 method, and for many analyses the two methods are essentially identical. However, there are differences that could affect the admissibility of the data in a criminal case. The data, in any case dependent on analyses done using the 1993 method, must be carefully reviewed.

Samples: Asbestos

CID must prove “the disturbance of RACM of at least 260 linear feet on pipes, 160 square feet on other facility components, or 35 cubic feet off facility components.”

Is this 160 lineal feet?

CID Sampling Needs

During ER’s most times CID does not have support to collect criminal samples.

CID can coordinate need for samples with OSC, NEIC.

Use of OSC’s and/or START to physically take samples.

START support of OSC’s during sampling activities.

Quantification of Wastes

CID uses total quantification of wastes in documenting totality of activity (crime) and to answer “So What” question of prosecutor/judge.

No changes to way OSC’s document transportation and disposal of wastes for off site treatment/disposal needed.

Helps justify restitution later in case as well.

Witness Statements

Have to be documented by CID agent for criminal purposes HOWEVER: does not mean OSC/START can’t have their own discussions. Documentation is key Communicate what was said by whom to CID

agent. START notes discoverable in criminal case:

considered documenting of witness statement by “government.” • This is OKAY!!! Just as long as START’s know this.

Communication Barriers

Makes the other person lesswilling to communicate

Causes the other person to become defensive

Unnecessarily irritates the other person

Creating BarriersMaking premature comments and

evaluationsInterrupting othersTalking too muchPlacing emphasis on blameArguingDisplaying irritating listening habits

Types of Questions To Use

General or open-ended Narrative response, the 6 W’s Backward reaching Empathetic/sympathetic Opinion/Hearsay

Accusatory questions Compound questions Complex questions

Listening

People give meaning to words Listen for what they don’t say as well as

what they do say Feelings more important than mere words The “listener” usually maintains the most eye

contact

How To Be an “Active Listener”

Remain neutral Give your complete attention Ask about their statements Restate their main points Put their feelings into words Get agreement

View Any Behavior in Context With the Individual’s

Social class Religion Culture Locale

Effective Use of Guilt

People generally like to tell secrets

Listen and encourage confession

Let them unburden themselves to you

Give them time and attention

Communication

Can’t stress the importance enough. Parallel proceedings

Cost recovery/PRP investigation CID

Grand Jury Rule 6e: Secrecy (I really do like and want to keep my job)

Filing Deadlines for PRP Action

CID Outcomes: What to expect

Plea Agreements or Trial Restitution:

Is non-dischargable in bankruptcy proceedings when ordered as part of a criminal conviction.

CID/DOJ ask for full restitution. Pre-trial services does a financial analysis –

defendant has to file a financial affidavit. Payment plan set by Court at Pre-Trial’s

recommendation. Lasts the term of sentence (prison + supervised

release_

Sentencing Guidelines

Calculation based on offense and aggravating or mitigating factors

Base level for Environmental: 4-8 points Factors:

ongoing, continuous release, with/without permit, evacuation of community, disruption of public utilities; leader/organizer; vulnerable victims.

Community involvement, steps taken to better life, etc.

Rouge River Oil Spill

Identifying the point source

30 Facilities met definition of storage capacity + type of oil/waste.

All were inspected. 300 samples taken.

USCG Coil EPA ERT R2 Lab

Tracing the Sewer Lines

Sampling

Search Warrant

Permit Defined Sampling Location

Search Warrant

Chem Serve: Aramis Moloian

Moloian was owner of Chem Serve, a specialty chemical broker and soap manufacturer.

Molian was also the owner of Dearborn Refining a waste oil refining and processing facility. This facility was a Superfund cleanup site in 2005/2006 at cost of $2.6 million.

Chem Serve facility was a Superfund cleanup site in 2008. End costs were $2.7 million.

Chem Serve

Between site assessment and start of remediation CID executed a search warrant. Collect criminal specific samples of waste Photo and video documentation of conditions of

facility and drums. Seize documents and electronic evidence. Interview witnesses.

Chem Serve

OSC’s and START assist CID and NEIC staff during execution of warrant: Sampling assistance, drum cataloging, etc.

Post search warrant OSC sends letter giving Molian time period to remove all materials he deems appropriate. CID later uses to rebut possible defense that

materials were product not waste.

Chem Serve

Chem Serve Outcome

Moloian charged with illegal storage of hazardous waste.

Pleaded guilty days before trial. Agreed to pay $2.7 million in restitution to

EPA Region V. Moral victory – still owes for Dearborn Refining

clean up.

Superfund and CID: Cooperation Makes It Happen

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