Environmental Crimes Blog

MARPOL Annex VI

On July 21, 2008, President Bush signed the Maritime Pollution Protection Act of 2008 (“MPPA”).  President Bush's signature on the MPPA brings into statute form Annex VI to the International Convention on the Prevention of Pollution from Ships (known as MARPOL).  The United States Senate gave its formal advice and consent to Annex VI in 2006.  The final step of the ratification process is for the President deliver a letter, known as diplomatic instrument of ratification, to the International Maritime Organization.  The United States then becomes a party three months later.  MARPOL Annex VI entered into force beginning in May of 2005, although ships have met most provisions since 2000.

 

Under MARPOL Annex VI, container ships, tankers, cruise ships and bulk carriers must limit NOx emissions from their category three diesel engines.  It also sets a cap on the sulfur content of the fuel they burn and includes a program for designating areas where more stringent fuel controls apply, such as near coastlines that have more severe air quality concerns.  This October, the parties to MARPOL will work to strengthen NOx and SO₂ standards and the sulfur requirements in fuel.  The amendments under review are consistent with the stringent and comprehensive proposal put forward by the United States government.  If adopted, these stronger international standards will yield significant environmental and public health benefits in the United States and around the world.

As foreign trade grows and the USEPA's new emissions controls take effect on other transportation sources, emissions from large ships comprise an increasing share of the nation's pollution inventory.  In 2001, in terms of mobile sources, oceangoing vessels contributed nearly six (6) percent of NOx, over ten (10) percent of PM_2.5, and about forty (40) percent of SO₂ to the nation's air pollution.  Without further controls, those numbers will rise to about thirty-four (34) percent of NOx, forty (45) percent of PM_2.5, and ninety-four (94) percent of SO₂ emissions by 2030.

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii

Silent Thunder

Silent Thunder is billed as an “eco-thriller.”  It does not disappoint.  It is a novel written by the bestselling mother/son writing team of Iris and Roy Johansen.  The novel follows the exploits of Hannah Bryson as she works to prepare a Russian nuclear submarine for use as a museum.  What follows is an engrossing tale of intrigue as she and her brother discover a secret hidden in Silent Thunder.  The secret is the cause of the intrigue which results in suspense, murder and mayhem.  It is clear that Iris and Roy Johansen have done their homework in writing this novel.            

 

Of importance to the environmental community and as relayed to me by Iris and Roy Johansen’s agent, to date, there are dozens of decaying Soviet, Cold War era submarines floating in open water with their nuclear reactors intact.  These submarines present a very real, frightening and largely unknown environmental threat.  According to environmentalist groups, these decaying vessels are capable of (and may in fact be) contaminating many water resources.  The Russian government cannot afford to deactivate these vessels and are instead abandoning them in dangerous floating graveyards.  This creates the possibility of a catastrophic environmental disaster.  One wonders if the federal government has the same issues with the aging fleet of the United States. 

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii

BP and the Crime Victims’ Rights Act

United States District Court Judge Lee Rosenthal will examine medical bills and lost wages of people who died or were hurt in the 2005 explosion at BP's Texas City refinery to determine whether a $50,000,000.00 fine to resolve criminal liability is sufficient.  On Wednesday, July 16, 2008, Judge Rosenthal told attorneys representing blast victims, the government and BP that she needs that information before she can accept or reject BP’s plea deal.  Specifically, Judge Rosenthal will examine economic losses of the fifteen people who died as well as those of thirty-five other victims selected by lawyers for the victims.  Judge Rosenthal will use those figures to estimate how tangible victim losses compare to the proposed fine.  Judge Rosenthal, however will not consider non-economic losses (such as payments to settle civil litigation that compensated for mental anguish or pain and suffering) in making her determination.

 

Judge Rosenthal did tell the victims in February 2008 that she could not just toss out the plea deal and impose her own; rather, she could only rule on the proposed plea deal presented. 

 

BP has indicated that it will cooperate with victims' lawyers in providing the information Judge Rosenthal. 

 

A hearing has been scheduled for October 7, 2008. 

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii

What is the Crime Victims’ Rights Act?

The Justice for All Act was signed into law by President George W. Bush on October 30, 2004.  The Act contained four major sections related to crime victims and the criminal justice process.  Some purposes of the Act are to protect crime victims' rights, to eliminate the substantial backlog of DNA samples collected from crime scenes and convicted offenders, and to improve and expand the DNA testing capacity of federal, state, and local crime laboratories.  As to the Crime Victims’ Rights Act, the CVRA enumerates eight specified rights for crime victims.  Generally, the CVRA requires prosecutors to let victims know that they can seek the advice of an attorney about the rights established by the CVRA; it allows victims to file motions to reopen a plea or a sentence in certain circumstances; and mandates that victims have the right to be reasonably heard at any public proceeding involving release, plea, or sentencing.  Either the victim or the government may assert the victim's rights in the district court and may file a petition with the court of appeals if not satisfied.  The CVRA requires the Attorney General to designate a USDOJ administrative authority to investigate complaints about violations of crime victims' rights and to create sanctions for DOJ employees who fail to meet obligations to victims.  However, the CVRA does not create a separate cause of action allowing victims to bring suit against the Federal government, nor is it intended to impair prosecutorial discretion in a case.  The CVRA creates no attorney-client relationship between the victim and a representative of the USDOJ.

 

Why is any of this relevant to the Environmental Crimes Blog?

 

On March 23, 2005, there was an explosion at the BP Products refinery in Texas City, Texas.  Fifteen workers were killed, and more than 170 others were seriously injured.  With permission from a federal judge to avoid notifying victims of plea discussions, federal prosecutors and BP worked out a deal and then submitted it to a District Court for approval.  The agreement has a BP subsidiary pleading guilty to a violation of the Clean Air Act, calls for a $50,000,000.00 fine and sentences the oil giant to three years' probation.  Twelve of the injured victims joined in a challenge to a plea bargain.  The victims were ultimately granted a hearing, and filed 134 impact statements.  The victims even made comments on the date BP entered its guilty plea.  The District Court denied the victims’ request to reject the agreement, and the victims’ filed a mandamus petition with the Fifth Circuit Court of Appeals.

 

The Fifth Circuit granted the mandamus, in part because the Fifth Circuit was under a seventy-two (72) hour deadline.  The Fifth Circuit ultimately held that the plea agreement violated the CVRA for two reasons: 1) the government filed sealed, ex parte motions when it should have conferred with the victims; 2) the District Court’s rationale of protecting BP from prejudicial media coverage was not sufficient to waive the victims’ rights under the CVRA.  But, the Fifth Circuit did not grant the writ of mandamus because the victims had all been granted an opportunity to be heard: on the date in which BP entered its plea and through their supplemental briefs.  An important, underlying factor in this case is the Fifth Circuit’s admonition that it leans very heavily upon the District Court to consider the victims rights.  The Fifth Circuit expressed confidence that the District Court would “carefully consider [the victims’] objections and briefs as this matter proceeds” as the District Court now has to decide whether or not to accept the plea agreement.

 

The victims then asked the Supreme Court to delay the action on the plea agreement and contended that the plea deal is too lenient, and that it was worked out without any input from the victims in violation of the CVRA.  What was at issue in the stay application was the standard of review to be applied by federal appeals courts when crime victims seek an order to compel a judge to uphold their rights under the CVRA.    

 

On Wednesday, July 2, 2008, the US Supreme Court denied a request by the victims to stop a settlement in the case.  The US Supreme Court's action means that the federal judge in Houston can now decide whether to give final approval of the plea deal.

 

You can read more about it at http://www.scotusblog.com/wp/a-plea-on-crime-victims-rights/

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

WDJiii

Concerned Canadians Help Trap Lobster Poachers

Lobster enforcement takes place in Canada as well as the United States.  The Calgary Canada Globe and Mail reported on May 28, 2008 that the Canadian Department of Fisheries and Oceans seized over 5,300 under sized lobster near the town of Wedgeport, Nova Scotia.  The Department was acting on a tip from concerned citizens who notified the Department of odd behavior from several boats in the local fishing fleet.  Acting on the tip, the Department launched surveillance involving planes and patrol vessels.

 

After several weeks of surveillance, the Department seized 13 wire cages containing the thousands of undersized lobster.  It is illegal to keep lobster that are under three and a quarter inches, excluding the tail.  Along with arrests, the Department also seized the boat and rental truck waiting to transport the crustaceans.

 

Department officials stated that this is the largest seizure which they had ever seen.  Department officials were not sure of the poachers’ intended market, but it is suspected that there is an active black market.  Under Canadian law, the penalties for keeping illegal lobsters vary from lost license, fines, forfeiture of the catch and/or seizure of the vessel. 

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii

No Silver Lining for Former Fujicolor Employee

The Dallas Morning News reported on June 2, 2008, that Gerald Lakota, a former environmental compliance employee at the Fujicolor facility in Terrell, Texas, plead guilty to federal charges of falsifying water sample reports in an effort to hide the amount of silver which the facility was discharging into the local watershed.  Lakota could potentially receive up to five years in prison along with five years of supervised release and a $250,000.00 fine.

 

The falsified reports were discovered during an internal investigation by the company.  Fujicolor began the internal investigation as a result of a $100,000.00 fine from the City of Terrell for releasing the silver-laden water into the city’s treatment system.  The internal investigation uncovered that Lakota would report only samples with favorable results while rejecting the majority of samples which revealed the excessive amounts of silver in the water.  Lakota was subsequently fired.  Fujicolor has also pleaded guilty to violating the federal water quality standards and also agreed to pay a $200,000.00 fine.

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii

Guest Post - Passive Smoke Equals Active Pollution

This is a guest post from Heather Johnson, a freelance writer.

 

Crime and punishment go hand in hand, well, if the criminal is brought to book and convicted in a trial. But there are crimes that are often ignored, let alone punished – smoking being one of the biggest in this list. Lighting up that stick of tobacco and inhaling the poisonous smoke is bad enough, but what’s worse is the fact that the smoker is poisoning everyone around him/her by polluting the surrounding environment.

 

Can smoking be considered an environmental crime? Apparently not, even though it could technically fall under the Clean Air Act of 1970 which regulates emissions of gases and small particles released into the air. The CAA was instrumental in allowing the EPA to set air quality standards (National Ambient Air Quality Standards or NAAQS) that protected both public and environmental health.

 

Probably the reason why smoking fails to attract severe penalties under the CAA is because the pollutants from cigarettes do not place people in the surroundings in immediate danger. The dangers of second-hand smoke have been proven beyond doubt, which is why the Clean Indoor Air Act was introduced in most states across the country.

 

The campaign against second-hand smoke began as early as 1970 when the Group Against Smoking Pollution (aptly titled GASP) took on the mantle of educating the public about the ill-effects of passive smoking. Health concerns finally pushed the government to outlaw smoking in airports, restaurants, hospitals, classrooms and other public buildings.

 

Today, though there is enough to conclusively show that smoking, both active and passive, kills, not enough is being done to put the tobacco companies out of business. Instead, no-smoking zones and laws are being enacted and put into use all over the USA. While some states like Iowa, Delaware, Hawaii, and Colorado have statewide bans on smoking indoors in closed public places like bars, restaurants and the like, others have partially introduced similar laws which, if violated, can invite fines of $500 and more.

 

What is the point in penalties, actions that are seen to be seeking a cure instead of attempting to prevent. The damage has already been done, and undoing it is not a possibility. But the monetary and criminal punishments do serve as deterrents to like-minded others, and every small bit helps. Tiny drops of water make the mighty ocean, and every small effort on each of our parts to promote a smoke-free atmosphere will reap rewards.  

 

By-line:

 

This article is contributed by Heather Johnson, a freelance writer as well as a regular commentator on the topic of online criminal justice degrees. Heather invites your questions, comments and freelancing job inquiries at heatherjohnson2323@gmail.com.

Reporting Environmental Crimes

I periodically get inquiries from the blog scanners to the effect such as “How do I report an environmental crime?”  The easiest way to do it is to get on line at the USEPA’s website at http://www.epa.gov/tips/ and fill out the appropriate boxes.

More later.

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

WDJiii

The USEPA’s Mission in Photographs

The United States Environmental Protection Agency invited the public to share its best photos showing the USEPA’s mission to protect human health and the environment. Hundreds responded, sending in nearly 750 photos. Entries depicted scenes from around the world, including the United States, Namibia, Malaysia and Antarctica.  An USEPA panel of judges chose 10 finalists in each of the three categories and then the public picked the winners. To encourage participation and provide maximum public access, the contest was hosted on the photo sharing site Flickr.com.

The USEPA recently announced the winners, whose photos will be featured in a special gallery on the USEPA Web site.  You can view the winning and finalist photos at: http://www.epa.gov/earthday/photocontest/winners.html

Enjoy!

WDJiii

False Statements Lead to Additional Charges

On April 22, 2008, a federal grand jury in San Francisco returned an indictment charging John Joseph Cota, a ship pilot licensed by the United States Coast Guard and the State of California, with making false statements in 2006 and 2007 to the Coast Guard concerning his medications and medical conditions.  The false statements arose from annual physical examinations that pilots are required to complete every