Assistant Attorney General John C. Cruden Delivers Remarks At Texas Environmental Superconference

Thank you very much, it is a great pleasure to be here.  I have spoken before at the Texas Superconference and it is always exciting to speak to this important audience.

And, I appreciate the quotation that has been assigned to me by the conference for my presentations:  “Speak Softly and Carry a Big Stick.”  Those were words by one of our best conservation-oriented Presidents, Theodore Roosevelt, whose passion for the outdoors set us on a national pathway of creating public parks and protecting wilderness areas.

With that in mind, I will try to discuss today how we do our environmental enforcement work at the local, state and international levels.  I am going to focus on what we have been doing in 2015 as that has been an extraordinarily productive time in our history, with significant impacts in virtually every area of our practice.  And, I want to focus attention on our joint enforcement with states.

Let me start with what the world heard on July 3^rd when we announced an agreement in principle with BP concerning the Deepwater Horizon oil spill.  Although I am under a strict confidentiality order that governs the terms of that non-binding agreement, the court did make public the monetary terms.  In summary, BP has pledged at least $18.7 billion to resolve federal, state and local claims.  The Department of Justice, in announcing the agreement in principle, stated that if approved by the court, the settlement would be the largest settlement with a single entity in our history.  And The Washington Post, commenting on the BP agreement, spoke of “jaw-dropping” numbers.  I had the honor of leading that negotiating team, but it is a classic example of multi-state, multi-federal agency joint action. 

While BP is vitally important, it is only one example of a surge in the vital enforcement work we are doing.  I am going to break up my discussion of our work this year into three categories:  First, I will discuss cases primarily with significance at the local level, impacting local communities.  Second, I will talk about cases that seek broader, company-wide relief or involve efforts at the state or regional level.  Third, I will talk about cases that raise international issues as we are often cooperating with other nations’ governments or entities such as Interpol.

In each of these three categories, the Department of Justice leverages resources through partnering with others.  These themes also advance goals that I have established for the division.  Finally, I will try to summarize how this enforcement surge has had real on-the-ground environment and health benefits.

I.  LOCAL COMMUNITIES – “Think Globally, Act Locally” 

Here’s a cliché to frame the first part of my remarks: “Think Globally, Act Locally.” 

The first goal I established for the Environment and Natural Resources Division (ENRD) this year is to vigorously enforce the nation’s bedrock environmental laws that protect air, land and water for all Americans and advance environmental justice.  Illustrating our efforts on this goal is our work at the community level.  We rely on local partners both to bring environmental concerns to the public eye and to help identify remedies that are appropriate for the affected community. 

For approximately 19 years, people living in the low-income community near the Tonawanda Coke facility in western New York were forced to breathe air contaminated by benzene and other harmful chemicals.  The community did its own air toxic monitoring, which revealed high levels of pollution.  These citizens’ diligent efforts helped build the enforcement action that the United States and state of New York brought to protect the community.  As a result of the civil agreement, I was proud to announce this May that Tonawanda Coke will pay $12 million in civil penalties, facility improvements and environmental projects to benefit the community.  Specifically, the agreement requires Tonawanda Coke to pay $2.75 million in civil penalties, spend approximately $7.9 million to reduce air pollution and enhance air and water quality and spend an additional $1.3 million for environmental projects in the area.

But the story of our work in Tonawanda does not end there.  The Tonawanda Coke civil settlement followed a successful criminal action that resulted in one of the largest fines ever levied in an air pollution case involving a federal criminal trial.  The company was sentenced in March 2014 to pay a $12.5 million fine, make a $12.2 million community service payment and serve a five-year term of probation.  Together, these “parallel proceedings” – the civil settlement and criminal action – permitted those living near the Tonawanda facility to finally receive the protections they deserve.

In other cases we have secured important ecological benefits for local communities in California.  In April of this year, for example, we reached a settlement with Lehigh Southwest Cement Company and Hanson Permanente.  The Environmental Protection Agency (EPA) Regional Administrator, California’s Deputy Attorney General and I jointly announced the settlement, which addresses violations of the Clean Water Act stemming from the discharge of millions of gallons daily of quarry process water and polluted stormwater.  As a result of the settlement, the company will spend more than $5 million to install wastewater treatment and make other facility improvements to prevent future violations.  The company will also pay $2.55 million in civil penalties.

The Lehigh settlement requires the company to remove selenium and other toxic substances from Permanente Creek, which feeds into San Francisco Bay, provides recreational opportunities and habitat for ecologically important species such as the red-legged frog – the subject of Mark Twain’s 1865 short story, The Celebrated Jumping Frog of Calaveras County.   But here is what I want you to think about today.  In resolving that case, ENRD relied on EPA and the state of California’s Regional Water Board.  Other groups’ actions were also involved.  Members of the surrounding communities and local organizations brought national attention to the issue through their sustained advocacy efforts. 

Our work at the local level also reflects the Administration’s commitment to environmental justice.  Last year marked the 20^th anniversary of the Presidential Executive Order on “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”  At ENRD, promoting environmental justice and enforcing environmental laws are primary goals for me.  We will seek protection for all communities from environmental harms by ensuring that the law is applied even-handedly in our cases.  And we resolve our cases in the interest of affected communities by making sure they have a voice in remedies that affect the places in which they live and work.

So far, I’ve highlighted cases from New York and California, but our work covers a much wider geographic range.  In April, for example, ENRD and co-plaintiff Mississippi reached a settlement with Cal-Maine Foods Inc., one of the nation’s largest egg producers.  The settlement resolves Clean Water Act violations in Edwards, Mississippi, at a concentrated animal feeding operation housing more than two million chickens.  The company discharged pollutants into a creek without permit authorization and also illegally applied nitrogen-laden wastewater in violation of its permit.

The facility is located in a community disproportionately affected by pollution.  Nearly half of the households have an annual income of less than $25,000.  Under the settlement, the facility will comply with its discharge permit, significantly reducing nutrient pollution from nitrogen and phosphorus.  The penalty will be divided between the U.S. and Mississippi.  This case illustrates how the division implements Department of Justice’s Environment Justice Policy and coordinates with state governments.

Environmental justice has also been at the center of suits involving the operation of municipal sewer collection and treatment systems.  This year, we announced a settlement with the city of Fort Smith, Arkansas.  Importantly, as part of the settlement, the city will implement a program to help qualified low-income residential property owners to repair or replace defective sewer lines that connect to the city’s collection system.  And in May, the Mayor of the District of Columbia, the EPA Regional Administrator and I announced changes to the D.C. sewer upgrade consent decree that will integrate green technology into the district plan to eliminate sewer overflow and promote jobs.

Our commitment to environmental justice in local communities extends to Native American lands.  Last month, we announced a Clean Air Act settlement which will reduce damaging pollution from the Four Corners Power Plant located on the Navajo Nation.  In addition to significant upgrades to the plant’s pollution controls, the settlement requires $6.7 million for three health and environmental mitigation projects benefiting tribal members residing near the plant: (1) a project to replace local residents’ appliances with more energy-efficient heating systems; (2) residential weatherization projects that will decrease energy use; and (3) a project that will establish a Health Care Project trust fund to pay for certain medical expenses for tribal residents nearby the plant suffering from respiratory issues.  As with some of the other cases I have highlighted, this suit benefited from invaluable participation from local groups. 

These are just some of the cases that we’ve completed in 2015. 

II. STATE, REGIONAL AND INDUSTRY-WIDE IMPACTS OF THE DIVISION’S WORK – “Let’s Work Together”

This brings us to my second cliché: “Let’s Work Together.”

ENRD seeks to leverage resources at the state and regional level by turning violations at one or two facilities into broader, company-or industry-wide solutions.  These cases span the country, including Puerto Rico and the benefits will be felt across various regions.  

One example of how this plays out is one of the two cases I announced on Earth Day: Noble Energy Inc.  Noble, an oil and gas exploration and production company based in Houston, Texas, agreed to settle our claims that it failed to adequately design, size, operate and maintain certain vapor control systems on its storage tanks in the Denver-Julesburg Basin.  The case arose from a joint EPA and Colorado investigation that found significant volatile organic compound emissions coming from storage tanks; VOCs are a key component of smog.  Why is this settlement significant?  Because it is a first-of-its-kind settlement that takes a basin-wide, systematic approach to addressing oil and gas emissions.  The settlement also highlights how states and the federal government can collaborate to address air pollution from a significant sector in a commonsense way.  It will also help spur development of advanced pollution control technologies that will become available to the entire industry.

The other case I announced on Earth Day this year was an enforcement partnership with the state of Arkansas.  ExxonMobil Pipeline Co. and Mobil Pipeline Co. (ExxonMobil) agreed to settle claims by the United States and the state of Arkansas stemming from the Pegasus Pipeline oil spill in Mayflower, Arkansas.  The spill occurred after a pipeline, carrying Canadian heavy crude oil from Illinois to Texas, ruptured.  Crucially, while the spill was localized to one community, the injunctive relief that ExxonMobil agreed to was company-wide.  Under the settlement, ExxonMobil will pay $3.19 million in civil penalties and take steps to address pipeline safety issues and its spill response capability by providing additional training to its first responders.  This agreement is an excellent example of federal and state cooperation. 

Another example of our work at the state/regional level is our enforcement case involving Total Petroleum Puerto Rico Corp.  That case concerned Resource Conservation Recovery Act violations alleged at 31 gas stations.  We structured the settlement to achieve a comprehensive solution, improving leak detection company-wide by installing advanced electronic release detection monitoring equipment at over 125 gas stations across Puerto Rico.  This is the second judicial settlement in Puerto Rico requiring a defendant to implement company-wide automated electronic release detection with a centralized monitoring capability.  Together, over 250 stations in that commonwealth will become equipped with electronic release detection equipment and centralized monitoring.

With the states of Alabama and Oklahoma, we recently settled Clean Air Act claims against Houston-based Continental Carbon Co., which has facilities in Phenix City, Alabama, Ponca City, Oklahoma, and Sunray, Texas.  Because the oil used to make carbon black is high in sulfur, its production creates large amounts of sulfur dioxide and nitrogen oxide, which can convert to particulate matter and cause severe respiratory and cardiovascular impacts and premature death.  This case again illustrates our joint work with states.  The settlement requires Continental to pay a civil penalty that will be shared with the co-plaintiff states.  And it shows how we are implementing ENRD’s goals to protect communities disproportionately affected by pollution because Continental will spend over half a million dollars on environmental projects to help mitigate the harmful effects of air pollution and benefit local communities.

And in May, three subsidiaries of North Carolina-based Duke Energy Corp., the largest utility in the United States, pleaded guilty to nine criminal violations of the Clean Water Act.  It also agreed to pay a $68 million criminal fine and spend $34 million on environmental projects and land conservation to benefit rivers and wetlands in North Carolina and Virginia.  Four of the charges resulted from the massive coal ash spill into the Dan River in February 2014.  The defendants own and operate coal ash basins in North Carolina, South Carolina, Kentucky, Indiana and Ohio and Duke’s subsidiaries operate 18 facilities in five states, including 14 in North Carolina.  Duke will be required to develop and implement nationwide and statewide environmental compliance programs.  This case also highlights a key federal-state partnership; as the Acting Director of the North Carolina State Bureau of Investigation said “[t]his type of collaboration is critical to ensuring a thorough and intensive review on cases such as this.”

In short, as you can see, environmental enforcement often involves close collaboration between the United States and state governments and leads to results that have a wide impact across companies and regions. 

III. IMPACTS AT THE GLOBAL LEVEL – “The World is Flat”

But our work is even broader in scope and this brings me to my final cliché:  “The World is Flat.” 

The third level of impact is our international efforts.  We cooperate closely with the State Department, Department of Homeland Security, Coast Guard, Fish and Wildlife (DOI), Interpol and other countries’ governments to enforce federal environmental laws and international environmental agreements.

A. Wildlife Trafficking

One area of increased attention and more litigation for the division has been wide ranging efforts to stem wildlife trafficking.  International wildlife traffickers respect no international borders.  So it is essential that the United States coordinates with foreign governments to stop this cross-border crime.  With estimated annual revenues of $10 billion or more, wildlife trafficking is one of the most profitable types of transnational organized crime, behind only drugs, counterfeiting and human trafficking.  Organized criminal syndicates and militant groups have become increasingly involved.  In the past decade, wildlife trafficking has escalated into an international crisis.  Illegal trade at this scale threatens security, hinders sustainable economic development and undermines the rule of law. 

This year I became co-chair of the Presidential Task Force on Wildlife Trafficking, which leads a coordinated, government-wide effort to stop poaching and other wildlife trafficking.  The Task Force includes the Departments of Treasury, Defense, Agriculture, Commerce, Transportation and Homeland Security, as well as the U.S. Agency for International Development and seven other federal departments and agencies.

The Task Force agencies have been working in coordination to implement the National Strategy for Combatting Wildlife Trafficking since its issuance and in February the Task Force released an Implementation Plan that builds upon the strategy.  The Implementation Plan provides a robust, focused reaffirmation of the nation’s commitment to stopping wildlife trafficking and sets out specific steps to achieve each of three key strategic priorities: (1) strengthening domestic and international law enforcement to curb the illegal flow of wildlife, (2) reducing the demand for illegally traded wildlife and (3) building global cooperation and public/private partnerships to support the fight against wildlife trafficking. 

In March, I had the privilege of leading the U.S. delegation to the international conference on the Illegal Wildlife Trade in Botswana.  Representatives from more than 30 nations gathered to follow up on commitments to reduce illegal wildlife trade.  The joint participation of the Departments of Justice, State and the Interior at these conferences demonstrates the “whole of government” approach taken in the strategy, which we are pleased to see other nations beginning to adopt as well.  It was a true honor to speak on behalf of the United States about our ongoing efforts to combat wildlife trafficking through the strategy and the newly released Implementation Plan.  While in Botswana, I participated in the second African Elephant Summit, which focused on international efforts to implement 14 “urgent measures” to stop the illegal slaughter of elephants for their ivory. 

As some of you probably heard last week, the famous lion Cecil was killed by a sport hunter in Zimbabwe.  But what received less media coverage was that while Cecil was being killed, poachers in Kenya killed five elephants in the Tsavo West National Park and hacked off their tusks, which can be sold for more than $1,000 per pound.  It is because of events like this one that President Obama, during his trip to Kenya two days earlier, announced a rule that would prohibit the sale of ivory from African elephant tusks across state lines.

Let me be clear.  This illegal trade is decimating species across the globe, including elephants, rhinoceroses, sharks and tigers.  When I testified before Congress this year on illegal wildlife trafficking, I advised the members of the House Foreign Affairs Committee that such iconic species as rhinoceroses, elephants, great apes, totoaba, sea turtles and tigers are facing extinction in our lifetime if we do not act now.  If you can imagine the diminished world that would result if these powerful and iconic species are permitted to go extinct, you can see why this is such an important initiative for us.  The department, principally through ENRD, has long been a leader in the fight against illegal wildlife trafficking.  Together with U.S. Attorneys’ Offices across the country and partner federal agencies – such as Fish and Wildlife Service and the National Oceanic and Atmospheric Administration – ENRD’s Environmental Crimes Section prosecutes international wildlife trafficking crimes.  The Crimes Section primarily operates under the Endangered Species Act and the Lacey Act.  It also prosecutes related crimes such as smuggling, money laundering and conspiracy.  ENRD has successfully prosecuted numerous cases involving trafficking of rhinoceros horns, elephant ivory, South African leopard, Asian and African tortoises and reptiles and many other protected wildlife species.

One prominent example of how the Department of Justice is involved in this effort is “Operation Crash,” an ongoing multi-agency effort to detect, deter and prosecute those engaged in the illegal killing of rhinoceros and the illegal trafficking of endangered rhinoceros horns.  Thus far, the initiative has resulted in 26 arrests and 18 convictions. 

Another example involves narwhal tusks and teeth.  The narwhal is a medium-sized toothed whale that possesses a large “tusk” from a protruding canine tooth.  It lives year-round in Arctic waters around Greenland, Canada and Russia.  Some medieval Europeans believed narwhal tusks to be the horns from the legendary unicorn.  Narwhals are listed as “threatened” under the Endangered Species Act and are covered by the Convention on International Trade in Endangered Species of Wild Fauna and Flora.  It is illegal to import narwhal parts into the United States without a permit and without declaring the parts at the time of importation.  In January of this year, Andrew Zarauskas was sentenced to 33 months in prison for unlawful trafficking of narwhal tusks and teeth. 

B. Vessel Pollution

Another key area where we work is combatting vessel pollution.  The division’s Vessel Pollution Initiative addresses intentional acts of pollution from ocean-going vessels, including discharges of oil and garbage and the deliberate falsification of official ship records designed to conceal illegal pollution.  These events often occur in international waters.  Criminal penalties imposed in these vessel pollution cases totaled more than $344 million in fines and more than 27 years of confinement.

For example, I would like to highlight U.S. criminal prosecutions under the Act to Prevent Pollution from Ships (APPS), which implements the International Convention for the Prevention of Pollution from Ships (MARPOL).  Countries negotiated MARPOL to minimize pollution of the oceans and seas, including releases of garbage, sewage and oil and air pollution.  Our work in this area has resulted in cases against key segments of the commercial maritime industry.  Defendants in these cases have included owners or operators of cruise ships, container ships, oil and chemical tankers and bulk cargo vessels.  The APPS requires vessels to maintain a record known as an oil record book in which all transfers and disposals of oil-contaminated waste, including the discharge overboard of such waste, must be fully and accurately recorded. 

One recent example, in United States v. Carbofin SPA et al., in March the U.S. District Court for the Middle District of Florida sentenced the defendant to pay a $2.15 million fine and make a $600,000 community service payment to the National Marine Sanctuary Foundation.  Carbofin previously pleaded guilty to three APPS violations.  Carbofin had maintained a false oil record book that failed to record illegal overboard discharges of oily wastes in 2013 and 2014.  While conducting a routine inspection in April 2014, crew members provided Coast Guard inspectors with cell phone video of a black hose being used to discharge oily bilge waste directly overboard.  After examining valves and finding oily residue on the hose, the inspectors confirmed that the hose had been used to bypass pollution prevention equipment and to discharge wastes overboard.

ENRD has accomplished these results in these wildlife trafficking and vessel pollution cases by collaborating with new and existing local, state and international partners.  The cases and initiatives we have devoted ourselves to so far in 2015 indicates the breadth of our work.  And this work provides real benefits for the public and natural environment.

IV. CHANGES IN PERSONNEL AND PENALTIES SHARED WITH STATES

Finally, I want to draw your attention to the creation of a new position designed to facilitate ENRD’s work with state and local government attorneys.  We designed the newly created role of Counselor for State and Local Matters to facilitate the joint efforts by the division and its environmental partners in state and local governments.  The Counselor for State and Local Matters will work with the National Association of Attorneys General, the Environmental Conference of States and individual attorneys in state and local governments working on environment and natural resource matters. 

Maintaining and improving this coordination is critical to our success.  Just this year, ENRD has already filed 13 cases with state parties – some of which I have discussed.  ENRD has entered into settlements in six such cases.  Those six cases have resulted in over $2.1 million in penalties going to state co-plaintiffs.  Additionally, over $2.2 million will go to New York and California upon court approval of two pending consent decrees in the Tonawanda Coke and Lehigh Southwest Cement cases.

In conclusion, ENRD’s efforts bring about concrete results at the local, state and international levels.  We have seen how across all three categories, the Department of Justice leverages resources by partnering with others and advances Administration priorities.  Thank you again for having me here today.