Getting Wasted

Local officials say they are only after compliance and cleanups. Critics claim otherwise.

The offensive against illegal dumping and pollution has many thrusts, but those involved insist that there is only one goal: to get compliance and cleanups.

"Overall, with the staff and resources we have, we are really doing an excellent job of protecting the environment and prosecuting as many violators as we can," Roger Haseman says of his environmental prosecution unit at the Harris County District Attorney's Office.

Houston police Sergeant Larry Doss, who heads the city's special enforcement team, explains that compliance is the key. Investigations are reserved for obvious criminal offenders, not merely those who may accidentally spill contaminants or unknowingly dispose of waste. "We're very big into education," he says. "Our last resort is really filing any charges."

But several attorneys and defendants say the effort has taught them another lesson: that those caught up in this new offensive can be subjected to borderline tactics that may stretch prosecutions to the limit of the law, or even beyond. Many question the real motives and priorities of this push.

"I know for a fact there are plenty of polluters out there they could be throwing the net around," says respected defense lawyer George "Mac" Secrest. "They just don't need to be engaged in this type of conduct."

Among the cases and complaints cited by critics:

• On February 18, 1999, the KTRH radio news Web site teased its morning broadcasts with this: An army of federal, state and local investigators converges on a field in northwest Houston. A massive illegal dump site has been found filled with hazardous chemicals. Barrels of contaminated materials are being hauled out of man-made pits.

Local television news crews were dispatched to what amounted to a raid on the offices of SeaTrax Corporation, a crane manufacturing company, and to a field where barrels of sandblasting residue and toxic paint-related material were buried.

HPD Sergeant Mike Walsh headed the execution of a surprise search warrant on the company. He briefed reporters about the discovery: Management allegedly knew of the illegal disposal, and Walsh told of grave concerns about contamination of the water table that supplied surrounding homes.

Within two weeks, SeaTrax attorney Kenneth Keeling delivered a heavily documented complaint to the HPD internal affairs division, complete with revelations that cast strong doubts on the dynamic raid. According to the complaint, Walsh and the unit had known of the dump for more than five months. They didn't even need a search warrant because the company, in the spirit of cooperation, had given them a consent to search at any time.

As for contaminated water, Walsh himself had overseen two tests that showed no threat to surrounding residents. SeaTrax said the holdup on the remediation was HPD itself; more than a month had passed before Walsh advised the company that the state -- not HPD -- had jurisdiction. Keeling had reported to Walsh when the cleanup would begin, and that just happened to be the time when the raid was launched.

The cost to assemble -- then send back -- the cleanup crews and equipment was $25,000. The only reasonable explanations for Walsh's timing, the complaint stated, "were to cause financial damage to the company and to call media attention to himself."

Apparently the complaint was deemed groundless -- there is no record of disciplinary action against the officer. And there are no charges against SeaTrax, although that may be changing soon. Walsh declined comment on the matter. He does say that the investigation, nearly three years after the raid, is expected to go to a grand jury just in time to meet the legal deadline for filing felony cases.

"I presume that would make a better story than an allegation that was forwarded" to the Internal Affairs Division, the officer says.

• Prosecutors routinely wait until the legal deadline has almost expired before filing charges. "They sit on cases until just before the statute of limitations runs, which frequently makes it difficult for people who are accused to prepare an adequate defense because it involves alleged conduct several years old," explains lawyer Secrest.

Some of the investigations are complex, requiring lab tests, and staffing is limited. However, many delays are intentional. Time and again, defense attorneys spoke of stunned clients who assumed they were no longer under investigation, only to be charged or indicted years later. The result is that defendants are left trying to piece together events that occurred long ago.

The threat of charges can be a lever in efforts to force cleanups and compliance. But if -- as the police and prosecutors insist -- their efforts are squarely aimed at enforcing pollution laws, then why allow justice to be delayed for up to three years or longer after contamination is discovered? Defense attorneys say it would be unheard of in criminal law to let drug dealers, bank robbers and other felons to remain uncharged for long periods, allowing them to continue committing crimes.

Secrest notes that the strategy can backfire. Defendants who don't accept plea agreements discover that little work has been done on a case beyond the initial investigation. Prosecutors may resort to last-minute search warrants or ill-directed subpoenas that judges have thrown out. "I really don't think that's the way you ought to do your business," Secrest says.

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