Renaissance of environmental criminal investigation in Louisiana: a model for the nation.

• Author: Brock, Beau James

IN LOUISIANA, perpetrators of knowing criminal violations of the Louisiana Environmental Quality Act, Title 30 subject themselves to felony conduct. Now, those are not just idle words on a page. The Louisiana Department of Environmental Quality Criminal Investigation Division (LDEQ-CID) is the primary state criminal investigative arm responsible for environmental criminal investigations in Louisiana under Title 30.

Prior to the establishment of the LDEQ-CID, intentional repeat offenders of the Environmental Quality Act would avoid compliance by abusing the civil enforcement scheme and then, after years of non-compliance, would declare bankruptcy and begin new violations under a different company name. An early example, Ed McCreary, in Baton Rouge, was eventually criminally prosecuted after years of intentionally polluting the Capitol Lake system through a covert piping network. LDEQ-CID currently works with local law enforcement with the goal of empowering them to investigate local criminal issues that may affect them. The reality, however, is that local law enforcement has neither the resources nor the specialized training to investigate moderate or complex environmental crimes due to other priorities and the nature of the environmental regulatory system.

Under La. R.S. 30:2025(F)(4), LDEQ-CID must determine whether a criminal violation has occurred and then shall notify the local district attorney of the violation. Without this criminal investigative arm, LDEQ would be unable to meet this legislative mandate. Both EPA and LDEQ have the authority to investigate criminal violations of the Clean Air Act, Clean Water Act, and RCRA, (1) but only the state has jurisdiction to investigate solid waste crimes and state violations of the Louisiana Criminal Code which often are also in play when dealing with environmental crimes.

The State of Louisiana maintains sole responsibility to oversee solid waste both civilly and criminally in our state. Any criminal violations of solid waste must be investigated on the state level as EPA does not have jurisdiction over solid waste. Without an LDEQ-CID, criminal violations of solid waste, including illegal dumping of non-hazardous industrial waste, criminal violations of landfill operations, waste tire dumping, white goods dumping, and medical waste dumping cannot be effectively investigated nor prosecuted.

In February 2008, Beau Brock joined incoming Governor Bobby Jindal's appointee LDEQ Secretary Hal Leggett as his confidential assistant, and left his previous position as Regional Criminal Enforcement Counsel (RCEC) for the United States Environmental Protection Agency (EPA) Region VI in Louisiana. According to Brock, leaving a federal civil service "classified" position for a political appointment was an easy one for him because Secretary Leggett had a bold vision for a better Louisiana. In their interview about the position, Brock asked Leggett what his plan was for LDEQ, and he responded by asking Brock to join him and they would "change Louisiana." One of their chief concerns was agency integrity and public confidence in LDEQ, which had been wanting in the past. Leggett wanted to further assure a level playing field for honest businesses that found themselves unable to fairly compete with those who would ignore or flagrantly flaunt environmental safeguards.

From March 1999 until February 2008, as RCEC, Brock provided in-house legal oversight on all federal environmental criminal investigations in Louisiana managed out of the EPA-CID Louisiana Resident Office. During this eight-year period, the Louisiana EPA-CID office remained in the top 10 in case production for all of EPA-CID. This successful work was accomplished by aggressive development of a web of informational sources, thousands of man-hours spent by agents verifying complaints through interviews and surveillance, and close coordination with technical experts and prosecutors under the leadership of Assistant Special Agent-in-Charge Randall Ashe (2) and then his successor Assistant Special Agent-in-Charge Damon Rodriguez. (3)

Conversely, LDEQ-CID results had not merely stagnated after initial successes, but had regressed so much during this period that even its very existence was in question. Specifically, during its formative years, between 1992 and 1999, LDEQ-CID averaged 10 criminal referrals a year for criminal prosecution, but between 1999 and 2008, that number dropped precipitously to an average of four referrals a year. A close examination of the production statistics of LDEQ-CID from 2004 to 2008 revealed even more troubling numbers? In fiscal year (FY) 2004-2005, other than a single EPA-CID dominated case, LDEQ-CID cases only resulted in $550 in total criminal fines. In FY 2005-2006 criminal fines totaled only $1,200. In FY 2006-2007, LDEQ-CID obtained zero results. No criminal fines, no defendants, no probationary terms--no results. In FY 2007-2008, criminal fines did total $11,700, but clearly these were not acceptable nor did this period engender public confidence or result in any deterrence in criminal conduct.

Based on concerns that the LDEQ-CID was not effective, Leggett asked Brock to review the program, assess its needs and capabilities, and implement any necessary changes to fix the program. Leggett was convinced of the need of an effective CID to support the agency's overall mission; for the need for it to be a force capable of not only serving as a bulwark by protecting our most vulnerable communities from the nefarious activities of a few, but as the other bookend to his grand strategy of providing businesses and communities with the public confidence in a level playing field for all who come before the agency. (5)

In order for Brock to obtain a truly objective determination of the LDEQ-CID'S status and capability, he decided he should reach out to the top environmental criminal investigator in the country, and see if he...