Passive Aggressive

Two years ago Roger Haseman, the Harris County D.A.'s environmental crimes chief, had reason to celebrate: He had just won a case unprecedented in the history of the state. His office convicted the L.B. Foster company of "passive disposal" violations -- allowing hazardous paint waste from a container to contaminate soil and groundwater through mere neglect, rather than deliberate dumping.

Federal prosecutors have gained criminal verdicts against defendants in passive disposal cases, but only one state, Ohio, has been successful in taking that theory into a criminal prosecution.

Haseman succeeded -- at least until late March, when a regional appellate court overturned the jury's decision.

Call it a bad first impression. Rendering its opinion in what in legalese is called a case of first impression, the First Court of Appeals ruled that state criminal laws cover only the active disposal of wastes. L.B. Foster's $150,000 fine was thrown out.

It was a victory for the Pittsburgh-based corporation, which cuts rail for railroads, as well as a triumph for Haseman's critics, who believe his office undertakes prosecutions with the kind of overzealous fervor that would make the Gestapo blush. Haseman feels the decision was yet another signal that Texas is a state where industry lines lawmakers' pockets, and where punishing polluters is Sisyphean work.

Haseman explains that he hates pollution so much that he'll do whatever he can -- and in this case, that means even using legal theories like passive disposal, which hadn't been recognized by the state (see "Dumped On" and "Getting Wasted," by George Flynn, January 31, 2002).

L.B. Foster initially seemed like a slam-dunk for the environmental crimes division.

In December 1997, Houston police investigating municipal code violations at the Burlington Northern Railway stumbled upon L.B. Foster's property off West Little York Road, southeast of Beltway 8, and discovered an uncovered metal container filled with hazardous paint waste. Officers felt the waste had spilled or overflowed at some time in the past. (L.B. Foster has occupied the property since 1969.)

Investigators also discovered what they believed to be illegal dumping of used oil, which led to one charge and conviction that was upheld in the recent appellate ruling.

Two months after the initial visit, the city took soil tests that revealed a lead content about 12 times the level considered hazardous by the Environmental Protection Agency, evidence showed.

L.B. Foster immediately hired a consultant to remove 71 tons of lead-contaminated soil and 2,916 cubic yards of oil-contaminated soil, spending $610,000 in the process.

But two years later, after L.B. Foster had fixed the problem, Haseman got the company indicted anyway.

"They had never been punished for those violations," Haseman says. Even though Foster paid more than a half-million dollars to remove the soil, Haseman contended the company had allowed hazardous waste to stew there for years, seeping into the aquifer and contaminating drinking water, he says. "If you had a robber that committed a robbery and the next day decides he has a change of heart and gives the money back…he still committed a crime."

But defense attorneys who've squared off with Haseman argue that his office often waits until the day before the statute of limitations expires before filing charges. That method makes it harder to mount a defense, since the allegations cover conduct that could have happened years before. Or, in the case of L.B. Foster, if the problem was already corrected.

Tom Hagemann, who defended L.B. Foster, says he doesn't know why Haseman would pursue the company two years later. But he's more concerned with the prosecutor trying to cook up criminal charges for passive disposal -- he says that doctrine could ultimately hold innocent property owners liable for a previous owner's mistakes. Armed with passive disposal, Hagemann says, Haseman could target virtually any citizen in Harris County.

"It was its potential effect on individuals that was as frightening as its potential effect on companies," Hagemann says.

Referring to one appellate justice's assessment of passive disposal, Hagemann says, "You mean to tell me that if I had an oil leak one day under my car that I didn't even know about, and a couple days later I come and see that oil leak, that at that point I am committing a felony?"

For Hagemann, "the critical question in L.B. Foster was 'Can you be indicted for doing nothing?' And to me, the answer to that has to be 'No way.' "

Haseman says passive disposal wouldn't mean charging with impunity. He says he would have to show that a defendant was aware of contamination and still did nothing.

"If I don't feel like I have evidence to prove knowledge, then I'm not going to be bringing that charge," he says.

Haseman is seeking a rehearing on the appellate ruling. However, he found hardly any supporters among the three-judge panel that delivered the opinion, authored by Justice Laura Carter Higley.

In deciding on the L.B. Foster issues, justices examined cases dealing with a federal statute that applies passive disposal to civil suits. The First Court ruling stated that it could find only one case dealing with a criminal application to passive disposal of hazardous wastes -- and that conviction had been vacated in Colorado. (The Ohio case was tried under a law patterned after a different federal statute.) A Colorado appeals court found that the passive theory "would render the applicable statute of limitations meaningless."

The Colorado opinion noted that if charges could be filed for as long as a waste such as oil seeped through soil or water, prosecutors could file charges anytime "until the substance dissipates to the point where it is no longer hazardous, possibly eons later, or until remediation occurs."

That would go against the very reason for a statute of limitations, which is "to protect individuals from having to defend themselves against stale criminal charges and to prevent punishment for acts committed in the remote past," judges stated.

The Houston court said the language of the applicable Texas laws states that there must be some "affirmative human conduct" for a crime to occur. Instead, the theory advanced by the D.A.'s office was simply that there was "passive migration of waste through the soil," unaided by any humans. In other words, pollution was seeping underground.

The notion that prosecutors might file a pollution charge decades after the disposal is also being addressed in the current legislative session, where a bill was introduced to ban criminal prosecutions under the passive disposal theory. Three other bills -- their sponsors cite perceived Harris County D.A. excesses -- would make it harder to prosecute alleged polluters.

"They're doing the bidding of big business this session," Haseman argues. "They're being fed just one lie after another about…our office in particular, and about what we do in Harris County, and probably about me personally."

One bill calls for state review and approval of all potential environmental cases before district attorneys can file charges. Haseman says his unit needs to retain the discretion to file criminal charges, while defense attorneys say that office has abused its discretionary powers so badly that they should be reined in.

Two years ago, the legislature added felony laws against illegal dumping and water pollution, ostensibly giving prosecutors leverage to pursue more polluters.

"It seems to me the legislature was telling us…'We want you to go after these guys, and they need to be in prison,' " Haseman says. "And so now that we are, it's almost like they were saying, 'No, wait a minute, we didn't really mean for you to prosecute anybody. We just wanted the public to think we were actually doing something.' "

Critics of his operation say the Harris County unit has only itself to blame for trying to overreach its authority with passive disposal pursuits and other questionable tactics.

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