Environmental Crimes Blog

US v. John Tuma – Sentencing Update

On March 21, 2012, John Tuma was found guilty on all five counts under the indictment (conspiracy, obstruction and three CWA counts). 

John Tuma is now scheduled to be sentenced on August 28, 2012, at 2:30 p.m. 

More later. 

As always, feel free to contact me at walter.james@jamespllc.com

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Environmental Crimes Trials – More Complicated Now?

A thanks to my good friend David Weinstein for providing this information. 

In September 2004, youths from a nearby apart­ment complex broke into the Southern Union facility in Rhode Island and played with some mer­cury that was stored at the facility, and spread it around the facility and surrounding area.  A cleanup ensues and then in 2007, a grand jury indicted Southern Union on mul­tiple counts of violating federal environmental statutes, including a count that alleged that the company knowingly stored liquid mercury without a permit at the Pawtucket facility “[f ]rom on or about September 19, 2002 until on or about October 19, 2004,” in violation of RCRA.    

Southern Union Company was convicted by a jury in federal court on the count alleging the RCRA violation for having knowingly stored liquid mercury without a permit at a subsidiary's facility “on or about September 19, 2002 to October 19, 2004.”  The violation of RCRA are punishable by, inter alia, a fine of not more than $50,000.00 for each day of violation (see 42 U. S. C. §6928(d)).  At sentencing, the probation office calculated a maximum fine of $38,100,00.00, on the basis that Southern Union violated RCRA for each of the 762 days from September 19, 2002, through October 19, 2004.

Southern Union argued that imposing any fine greater than the 1-day penalty of $50,000.00 would be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, which holds that the Sixth Amendment's
jury-trial guarantee requires that any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt.   Southern Union contended that, based on the jury verdict and the District Court's
instructions, the only violation the jury necessarily found was for one day.  

The District Court held that Apprendi applied to criminal fines, but concluded from the “content and context of the verdict all together” that the jury found a 762-day violation.  The court therefore set a maximum potential fine of $38,100,000.00, from which it imposed a fine of $6,000,000.00 and a "community service obligation” of $12,000,000.00.

On appeal, the First Circuit disagreed with the District Court that the jury necessarily found a violation of 762 days.  But the First Circuit affirmed the sentence because it held that Apprendi did not apply to criminal fines.

Reversing, SCOTUS ruled that the rule of Apprendi applied to the imposition of criminal fines.  Going forward, the government will have more to prove up at trial.  If you would like a copy of the SCOTUS opinion, just let me know.

More later. 

As always, feel free to contact me at walter.james@jamespllc.com

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US v. Cody Tuma - Sentencing

On June 20, 2012, Cody Tuma was sentenced in the United States District Court for the Western District of Louisiana after having pled guilty to one misdemeanor count of discharges to the Red River in violation of the CWA.

Cody Tuma faced up to a year in prison and/or a fine of up to $100,000.00.  The government had filed a motion seeking a downward departure from the sentencing guidelines pursuant to Section 5K1.1 of the United States Sentencing Guidelines.  After considering the objections to the pre-sentence investigation report and the statements of Cody Tuma’s lawyer, Elton Ritchie, statements of Cody Tuma and the statements of the prosecutor, Mignonne Griffing, the Court sentenced Cody Tuma to five (5) years of supervised probation.  Cody Tuma was also ordered to pay $25.00 to the crime victims’ fund.  

Cody Tuma’s father, John Emerson Tuma, who has been convicted on all five counts in the indictment, is scheduled to be sentenced on July 25, 2012. 

More later. 

As always, feel free to contact me at walter.james@jamespllc.com

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US v. Cody Tuma

As I posted March 1, 2012, on February 28, 2012, Cody Tuma pled guilty to one misdemeanor count of discharges to the Red River in violation of the CWA.  Cody Tuma, along with his father, John Emerson Tuma, had been indicted in February 2011, under a five count indictment which included charges of conspiracy and obstructing an USEPA inspection and three CWA counts for illegal dumping of waste water.  John Tuma’s trial commenced on February 12, 2012, and resulted in his conviction on all five counts.   

Cody Tuma learns his fate today as he is scheduled to be sentenced in federal court at 3:00 p.m. this afternoon.  He faces up to a year in prison and/or a fine of up to $100,000.00.  The government has filed a motion alerting the Court to the fact that Cody Tuma provided “substantial assistance in the investigation and prosecution of other persons who have committed offenses, specifically, his father, John Tuma.”  The government is requesting that the Court make such a finding and depart from the sentencing guidelines pursuant to Section 5K1.1 of the United States Sentencing Guidelines in sentencing Cody Tuma. 

More later. 

As always, feel free to contact me at walter.james@jamespllc.com

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A Move Afoot to Ban USEPA Drones?

Fox News is reporting that Sen. Rand Paul, R-Ky. and Sen. Mike Johanns, R-Neb. are seeking to limit the ability of the USEPA to use drones in aerial surveillance. http://www.foxnews.com/politics/2012/06/14/lawmakers-erect-challenges-to-drones-in-us-airspace/

The USEPA has defended the use of the drones and a cost-efficient way to monitor environmental compliance in rural areas.  Sen. Paul is looking to require a warrant before the USEPA uses a drone for a fly-over and Sen. Johanns is seeking to ban the use all together.  While I usually come down on the side of the defendants, this is just a ridiculous waste of time.  Does a farmer who knowingly violates the law get a free pass only because he was spotted by a drone and not a live person?  Would a Cessna with a person in it be also banned?  More fundamentally, does a farmer or rancher really have an expectation of privacy out in his fields (as opposed to his house or barn)?        

With all due respect, Senators, there is a doctrine called the “open fields” which allows surveillance, without a warrant, as long as you could see it over an open field.  I posted about the open fields doctrine on February 9, 2012.  The so-called “open fields” doctrine is an exception to the Fourth Amendment search warrant requirement.  The open fields doctrine was first set out in the case Hester v. United States, 265 U.S. 57 (1924) which held that the Fourth Amendment protections did not extended to open fields.  For example, if you could see the activity from across an open field, no search warrant was necessary.  The technical rationale in Hester was that an "open field” is not constitutionally protected because open fields cannot be construed as "persons, houses, papers, [or] effects."

There is a two part test which establishes what constitutes a search.  See Katz v. United States, 389 U.S. 347 (1967).  A person must have an actual (subjective) expectation of privacy and that expectation be recognize as reasonable.  An expectation of privacy from across an open field has been held to be unreasonable.  See Oliver v. United States, 466 U.S. 170 (1984).  

Courts have consistently held that entry into an open field is not a search within the meaning of the Fourth Amendment even when the entry is a trespass.  The observation of the discharge of the blood into the tributary of the Trinity River by a drone did not constitute a search for purposes of the Fourth Amendment.

Senators, work on the issues related to the economy or the ever expansive US debt, not issues like this that are really nothing more than “noise.”

More later.

As always, feel free to contact me at walter.james@jamespllc.com

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On-Line Resources

From Peter Murtha . . .

There are a significant number of environmental crimes cases that are publicly announced by the USEPA that are not necessarily captured in the USDOJ press releases (because they are prosecuted by the individual United States Attorney’s Offices without the assistance of the USDJ’s Environmental Crimes Section.  

The USEPA's CID has begun to publish a bulletin highlighting their cases.  It is on-line at http://www.epa.gov/compliance/resources/newsletters/criminal/. 

The USEPA also issues press releases concerning major events in their cases.  Again, this is on-line at  http://www.epa.gov/compliance/criminal/index.html. 

Thanks, Peter, for the reminder as well!

More later.

As always, feel free to contact me at walter.james@jamespllc.com

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Lisa P. Jackson Budget Testimony

Below is the prepared statement of USEPA Administrator Lisa P. Jackson's testimony before the US Senate, Appropriations Subcommittee on Department of the Interior, Environment, and Related Agencies specifically related to the USEPA's budget.

Thank you for inviting me to testify on the President’s Fiscal Year 2013 budget for the Environmental Protection Agency. I’m joined by the Agency’s Chief Financial Officer, Barbara Bennett.

EPA’s budget request of $8.344 billion focuses on fulfilling EPA’s core mission of protecting public health and the environment, while making the sacrifices and tough decisions that Americans across the country are making every day.

EPA’s budget request fully reflects the President’s commitment to reducing government spending and finding cost savings in a responsible manner while supporting clean air, clean water and the innovative safe guards that are essential to an America that’s built to last.

In some cases we have had to take a step back from programs - this budget reflects a savings of $50 million through the elimination of several EPA programs and activities that have either met their goals, or can be achieved at the State or local level or by other Federal agencies.

Let me spend a moment discussing major elements of EPA’s budget request.

This budget recognizes the importance of our partners at the State, local and tribal level. As you know, they are at the front lines of implementing our environmental laws like the Clean Water Act, and the Clean Air Act. In fact, the largest portion – 40 percent of EPA’s funding request -- is directed to the State and Tribal Assistance Grants appropriation to support their efforts.

Specifically, this budget proposes that $1.2 billion - nearly 15 percent of EPA’s overall request - be allocated back to the States and tribes, through categorical grants. This includes funding for State and Local Air Quality Management grants, Pollution Control grants and the tribal general assistance program.

The budget also proposes that a combined $2 billion - another 25 percent of EPA’s budget request - also goes directly to the States for the Clean Water and Drinking Water State Revolving Funds. This funding will help support efficient system wide investments and development of water infrastructure in our communities. We are working collaboratively to identify opportunities to fund green infrastructure - projects that can reduce pollution efficiently and less expensively than traditional grey infrastructure.

Additionally, EPA’s budget request would fund the protection of the nation’s land and water in local communities, including important waters such as the Narragansett Bay. Reflecting the President’s commitment to restoring and protecting the Great Lakes, this budget requests that Congress maintain the current funding level of $300 million for the Great Lakes Restoration Initiative. This support will continue to be used for collaborative work with partners at the State, local and tribal level, and also with non-profit and municipal groups. The budget also requests support for protection of the Chesapeake Bay, and several other treasured and economically significant water bodies. The budget reflects the importance of cleaning up contaminated land sites in our communities by requesting $755 million for continued support of the Superfund cleanup programs and maintains the Agency’s emergency preparedness and response capabilities.

EPA’s budget request makes major investments in its science and technology account of $807 million, or almost 10 percent of the total request. This request includes $576M for research, including $81 million in research grants and fellowships to scientists and universities throughout the country for targeted research as part of the Science to Achieve Results - or STAR – program, including children’s health, endocrine disruption, and air monitoring research. Also, as part of this request, EPA includes funding increases into key areas that include green infrastructure and hydraulic fracturing.

As I’ve mentioned before, natural gas is an important resource which is abundant in the United States, but we must make sure that the ways we extract it do not risk the safety of public water supplies.
This budget continues EPA’s ongoing congressionally directed hydraulic fracturing study, which we have taken great steps to ensure is independent, peer reviewed and based on strong and scientifically defensible data. Building on these ongoing efforts, this budget requests $14 million in total to work collaboratively with the United States Geological Survey, the Department of Energy and other partners to assess questions regarding hydraulic fracturing. Strong science means finding the answers to tough questions, and EPA’s request does that.

We are making investments to support standards for clean energy and efficiency in this budget. Specifically, this budget supports EPA’s efforts to introduce cleaner vehicles and fuels and to expand the use of home-grown renewable fuels. This includes funding for EPA’s Federal Vehicle and Fuel Standards and Certification program to support certification, and compliance testing for all emissions standards. This also includes implementation of the President’s historic agreement with the auto industry for carbon pollution and fuel economy standards through 2025 for cars and light duty vehicles, including testing support for NHTSA’s fuel economy standards.

Taken together, the Administration’s standards for cars and light trucks are projected to result in $1.7 trillion dollars of fuel savings, and 12 billion fewer barrels of oil consumed. This funding will also help support implementation of the first ever carbon pollution and fuel economy standards for heavy duty trucks.
Mister Chairman, thank you for the opportunity to testify today. While my testimony reflects only some of the highlights of EPA’s budget request, I look forward answering your questions.

More later.

As always, feel free to contact me at walter.james@jamespllc.com

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US v. John Emerson Tuma – Sentencing Possibilities

A special thanks to Bruce Pasfield for coming up with the sentencing information.

After being convicted on March 21, 2012, on all five counts in the indictment, John Tuma will be sentenced July 25, 2012.  According to the USDOJ press release, Mr. Tuma faces a maximum penalty of five years in prison on the conspiracy charge, three years in prison on each of the Clean Water Act violations and five years in prison on the obstruction of justice charge, for a total of nineteen (19) years in prison.  He also faces a fine of not more than $250,000.00, or twice the gross gain or loss resulting from the unlawful conduct, or both, per count.  The fine could range into the millions of dollars.

In my opinion, the most likely sentencing outcome under the sentencing guidelines for John Tuma is as follows:

Base level offense under U.S.S.G. 2Q1.3	6
Specific Offense Characteristic for ongoing, continuous or repetitive discharge	6
Specific Offense Characteristic for a cleanup that required a substantial expenditure	4
Specific Offense Characteristic for an offense involving the discharge without a permit	4
Role in the offense U.S.S.G 3B1.1	2
Obstructing or Impeding Justice 3C1.1	2
Total Offense level	24

The Total Offense Level of 24 equals fifty-one (51) to sixty-three (63) months of imprisonment.  Judge Stagg could add one or two points for an enhanced “role in the offense” that adjust the sentence up to fifty-seven (57) to seventy-eight (78) months imprisonment.  Also for each of the three specific offense characteristics, the judge has discretion to increase or decrease each by 2 points depending on the nature of the offense and type of pollutant involved.  If Judge Stagg did that, the sentence could be increased or decreased substantially (a range of 121-151 months or 27-33 months).  Either way, it is probably going be one of the longest sentences for an environmental crime ever handed down in Louisiana. 

In terms of fines, the guidelines call for a fine between $12,500.00 and $125,000.00, based on an offense level of 24 months.  In addition, Mr. Tuma can be fined for up twice the monetary gain or loss from the crime.  That dollar amount could be upwards of $31,000,000.00.  As part of the pre-sentencing investigation the probation officer will make a determination of Mr. Tuma’s assets.  The court then is required to impose a fine based upon Mr. Tuma’s ability to pay.  The judge typically will not go beyond the ability to pay in imposing a fine. 

Judge Stagg may also require restitution.

More later.

As always, feel free to contact me at walter.james@jamespllc.com

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US v. John Emerson Tuma - Jury Verdict - Follow-up

The sentencing is scheduled for July 25, 2012, at 2:30 p.m.

More later.

As always, feel free to contact me at walter.james@jamespllc.com.

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US v. John Emerson Tuma - Jury Verdict

The jury returned at 4:30 p.m. Guilty on all five counts (conspiracy, obstruction, and three felony CWA counts). More later. As always, feel free to contact me at Walter.james@jamespllc.com. WDJiii