Environmental Crimes Guidance
The Department of Environment and Natural Resources (DENR or Department), the Attorney General's Office (AGO) and the State Bureau of Investigation (SBI) have been working together since 1988 to increase the role of criminal enforcement under the various North Carolina environmental statutes. Notably, the water and groundwater quality programs administered by the Division of Water Quality (DWQ), the air quality program administered by the Division of Air Quality (DAQ) and the solid and hazardous waste management programs administered by the Division of Waste Management (DWM), all now may make criminal referrals in appropriate cases for various offenses.
The Department, the AGO and the SBI currently are participating members, along with the North Carolina Conference of District Attorneys, in the Southern Environmental Enforcement Network (SEEN). SEEN is an 11-state network formed to promote, enhance and facilitate criminal enforcement of environmental statutes in the participating states. The organization provides information and training services to member states. It also coordinates activities between member states, EPA and three other similar regional networks established on the national level. The Department has utilized the resources of SEEN to develop guidance for North Carolina since the experiences of the federal government and other states can provide valuable lessons for North Carolina.
The purpose of this Guidance Document is to acquaint the Department’s field personnel with the procedures for identifying the need for environmental criminal investigations and criminal prosecutions in North Carolina, and to note items of a specialized nature which will arise in criminal enforcement. This Guidance Document may be expanded from time to time to include individual divisional considerations and a Question-and-Answer Section for situations that are found to arise frequently. The material herein is intended as guidance only, and will necessarily address only generic issues rather than specific cases.
BRIEF HISTORY OF CRIMINAL ENFORCEMENT EFFORTS IN NORTH CAROLINA
North Carolina has been a regular participant in SEEN since its inception. The impetus for joining SEEN was to establish a network with other states and the federal government in criminal enforcement activities. The United States Department of Justice began using criminal enforcement of environmental laws in the early 1980's and has seen remarkable success in trying and winning cases nationwide. Most observers believe the deterrent effect of an active criminal enforcement program is tremendous, and most states have now developed companion programs. North Carolina has not always utilized criminal enforcement, generally preferring to address violations through civil penalty, injunctive relief and permit revocation activities. However, many of our environmental programs have now matured to the point that knowledge of environmental regulation is widespread. Criminal enforcement is now considered a necessary tool to deal with willful violators of environmental laws, especially those who evade or are undeterred by administrative enforcement measures.
An initial step for an effective criminal enforcement program was the upgrading of several major environmental offenses to felonies. The General Assembly responded to the proposals of the Attorney General in the 1990 Session by passing legislation upgrading the punishment available for certain environmental violations. See, Session Laws 1990-1045 and 1993-539. Other environmental crimes had been previously upgraded, and a continual review of the statutes will be made to identify additional areas where felony upgrades are necessary. Generally, the environmental criminal enforcement legislation provided for felony punishments in the areas of water quality, groundwater quality, air quality and solid and hazardous waste management.
Immediately following the chartering of SEEN, the SBI established an environmental unit, the Diversion and Environmental Crimes Unit, which is specifically cross-trained for, and works closely with the DENR divisions on, environmental crimes investigations. The Diversion and Environmental Crimes Unit has now been in existence for over fifteen (15) years. Additionally, the AGO has appointed attorneys within its Special Prosecutions Section to act as liaison on environmental matters with the SBI, the local prosecutors and the AGO Environmental Division, which advises the Department on most of its environmental programs. No new positions have been established by any agency, although a long-range goal of the environmental criminal enforcement program is to set up specific positions within the DENR, AGO and SBI to concentrate on environmental crimes.
In 1993, the Attorney General established an Environmental Crimes Team within the Department of Justice to actively seek referrals of potential criminal enforcement cases. This Team is comprised of representatives of the Environmental Division and Special Prosecutions Section of the Attorney General's Office and the SBI. It is chaired by the AGO’s Chief of Staff, and DENR is a regular invitee. The Team meets bi-monthly to discuss referrals and case status reports. The U.S. Attorney's Office, the Environmental Protection Agency Criminal Investigation Division, and various local agencies and local prosecutors also currently participate in this endeavor when appropriate.
Currently, the DENR, through its division directors and its General Counsel, and the AGO, through its Environmental Crimes Team, screen cases for potential criminal referral by both formal and informal discussion and evaluation of enforcement cases generated by the divisions' field personnel.
ELEMENTS OF SUCCESSFUL PROGRAM
The goals of a successful environmental crimes program include the following:
CRITERIA IN EVALUATING CRIMINAL ENFORCEMENT POTENTIAL
The decision to proceed with a criminal investigation will be made by the SBI and often will involve consultation with various members of the Environmental Crimes Team, as well as local and federal prosecutors. In North Carolina, the local district attorney has sole prosecutorial discretion, and the decision to prosecute these environmental cases in the state court system rests there. The AGO can be requested by the local prosecutor to assist in any such prosecution, but the AGO does not have independent enforcement authority. If federal prosecution is to be pursued, the appropriate U.S. Attorney will make the determination as to whether to try the case. In matters that involve federal prosecution, the U.S. Attorney’s Office is usually involved in the case throughout the investigative stage, since often times a federal grand jury will hear evidence in the matter prior to any charging decisions.
In determining whether a criminal investigation should be initiated into alleged environmental violations, the SBI evaluates each matter on a case-by-case basis. There are some standard criteria used though to objectively determine if an SBI investigation is merited. Consideration will generally be made of the following factors (no priority among the factors should be inferred from the order of listing):
FIELD STAFF PROCEDURES
For the Department, most, if not all, enforcement cases will begin in the same manner -- a field investigation will show one or more violations and the need for formal action at the division level. Decisions to consult with the SBI, AGO, federal authorities and/or local authorities about criminal enforcement will be made by the division Director or his designee and, in most cases, inspection and enforcement procedures will be the same for civil administrative matters and for criminal matters until that decision is made. If the field inspector is conducting an investigation and believes that there is potential for a criminal action, the inspector should do the following:
The Departmental staff will not generally endanger any later criminal prosecution if the regular duties as administrative (i.e., civil) investigators are carried out, and the central office is alerted when criminal (e.g., intentional) violations are suspected. For example, questions the field inspector might ask of violators that are justified from a civil investigatory point of view are not tainted just because a criminal investigator might also ask them. However, if it is already reasonably likely that criminal referral will be made, it is generally preferable to leave interrogation of witnesses or potential suspects to criminal investigators.
Under most circumstances, evidence or information properly gathered by the field personnel as a part of normal ongoing regulatory programs will be available to the criminal investigators for use in a later prosecution. This is particularly true when the DENR determination to proceed criminally has not been made. However, once the decision to make a criminal investigation has been made, the DENR field personnel must then be careful to avoid “building” the criminal case. Hopefully, quick assignment of an agent from the SBI or EPA-CID will follow, and coordinated decisions on how and when to pursue further administrative actions can be made.
On the other hand, evidence or information gathered by the criminal investigators may not always be available for use by DENR in a later civil administrative proceeding. Whether it will be available depends on how it was obtained. For example, evidence gathered by federal grand jury subpoena is not available for use in DENR civil enforcement proceedings.
Updates on the progress of criminal investigations are routinely made at the meetings of the Environmental Crimes Team. DENR General Counsel is routinely attends these meetings. Because of the sensitive nature of many of the federal prosecutions; inquiry would usually be to the SBI or EPA-CID through DENR General Counsel. Generally, status reports will be given orally in order to preserve the confidentiality of the investigative process. Field staff with questions concerning the status of cases should contact the General Counsel, the AGO or their appropriate division manager for updates.
CRIMINAL ASSISTANCE OPTIONS
The DENR, AGO and SBI will discuss potential criminal referrals periodically, and may work with various agencies to obtain additional technical or operational guidance or and prosecution assistance. Agencies which may provide such assistance include:
Although most criminal referrals are to state and federal law enforcement agencies or the the AGO, it is always an option for DENR field inspectors to take matters directly to the local law enforcement authorities (Sheriff, City Police), as long as the appropriate division manager and General Counsel are informed and concur.
Parallel proceedings are the simultaneous pursuit of both criminal and civil/administrative actions in response to the same environmental violation. Much has been written about this situation, particularly by the United States Department of Justice. Primary reasons for careful consideration of this issue is to avoid the reality and the appearance on the one hand, that criminal investigative procedure and prosecution are being used for any ulterior purpose, and, on the other, that civil enforcement and investigative tools are being used by criminal prosecutors to avoid the constitutional or statutory protections accorded to criminal suspects. It is anticipated North Carolina will learn from the federal experience and will use, to the maximum extent possible, the policies of the U.S. Department of Justice to avoid the pitfalls of parallel proceedings. As an overarching goal, criminal prosecutions will be undertaken to punish violators who possess the requisite criminal intent and to deter similar violations. Civil prosecutions or administrative proceedings will normally be undertaken to prevent or remedy environmental damage, but such proceedings may also accomplish deterrence.
After review of a referred case, the DENR, AGO and SBI may recommend parallel proceedings. In pursuing parallel proceedings, the agencies will be guided by Guidelines for Civil and Criminal Parallel Proceedings (U.S. Department of Justice, Land and Natural Resources Division Directive #5-87); Guidelines on Investigative Procedures for Parallel Proceedings (U.S.E.P.A.) to the extent they are not inconsistent with existing State policies.
The essence of these guidelines is as follows. The criminal action will normally precede civil or administrative action and thereby avoid parallel proceedings. However, immediate civil or administrative action should be taken where necessary to stop or prevent an imminent threat to human health or the environment.
Regulatory personnel and criminal investigators and prosecutors may share relevant information when parallel proceedings are on-going, but should routinely document their communications with one another. However, DENR personnel should avoid acting as the criminal investigator. DENR activities, files, etc. will be maintained separately, and DENR personnel should not gather outside information in order to specifically provide it to criminal investigators. Assembling or evaluating data already in the possession of DENR to assist criminal prosecutors is appropriate. The guiding principle is to provide assistance to the criminal investigators but not to be a substitute for them.
North Carolina Case Summaries
United States vs. Donald Paul Buchanan
Activity: Buchanan, who owned a construction company, had purchased property on the Toe River that included an island in the Toe River, which Buchanan back filled with refuse to reclaim the land between the island and bank of the river.
Investigation: SBI and EPA-CID conducted a joint investigation, assisted by NC DENR and the U.S. Army Corps of Engineers.
Result: On April 11, 2001, Donald Paul Buchanan of Avery County, North Carolina, plead guilty in Federal District Court in Asheville, North Carolina, to illegally dumping into the Toe River. As part of a plea bargain, Buchanan accepted:
• 24 days active sentence
• 2 years of supervised federal probation
• Perform all necessary remediation to the Toe River under the supervision of the Corps
• $10,000 fine, to be suspended to a $1,000 fine once remediation was completed
United States vs. Hosiea Hewitt
Activity: North Carolina enforces the Clean Water Act under state laws. The defendant allegedly discharged 3,500 gallons of sewage sludge intentionally into Grove Creek in violation of the Kenansville permit. Discharging sludge into surface waters can make the waters unsuitable for fish and other aquatic life and create an infection risk that makes the waters unsuitable for recreational purposes.
Investigation: The case was investigated by the SBI, EPA-CID and DENR’s Division of Water Quality. It is being prosecuted by the District Attorney’s Office in Kenansville.
Result: Hosiea Hewitt of Dudley, N.C., was arrested by agents of the SBI on April 10 and charged with intentionally violating the federal Clean Water Act NPDES permit issued to the Kenansville, N.C. sewage treatment plant. Charged defendants are presumed innocent unless or until proven guilty in a court of law.
United States vs. James Edward Adams and Carolina Upgrading of South Carolina, Inc.
Activity: In their plea agreement, the defendants admitted that they conspired and falsified more than 1,500 tests of underground storage tanks to gasoline stations and state and federal facilities in Florida, Georgia, North and South Carolina, Tennessee and Virginia. Federal law requires that underground storage tank owners periodically have their tanks inspected to test for leaks of petroleum or other products. Petroleum leaks from underground storage tanks can release benzene into groundwater, and benzene is a known cause of cancer.
Investigation: The investigation was conducted by EPA-CID, the South Carolina Department of Health and Environmental Control, and the NC SBI. The case is being prosecuted by the Environmental Crimes Section of the U.S. Department of Justice in Washington, D.C., and the U.S. Attorney’s Office in Greenville, S.C.
Result: James Edward Adams of Inman, S.C., and his firm, Carolina Upgrading of South Carolina, Inc., each agreed to plead guilty on Aug. 26 to 15 violations of federal law. If accepted by the Court, the plea agreement calls for Adams to spend:
• 27 months in prison
• Pay up to $250,000 in fines on each of the 15 felony counts.
Carolina Upgrading faces a maximum penalty of:
• $500,000 fine on each of the 15 counts.
United States vs. Theodore Searcy
Activity: The company cleaned auto parts associated with racing cars by dipping them into vats of nitric acid. Searcy, transported approximately 70 drums of waste acid from the vats to a barn in Kernersville and other locations in Guilford and Randolph counties where it was illegally stored. The soils near the barn were tested and found to be highly acidic, possessing a pH of less than two. The barn was located across from Kernersville Middle School. Soils which are highly acidic can produce significant burns when they come into contact with skin.
Investigation: The case was investigated by EPA-CID, the NC SBI and the Forsyth County Sheriff’s Office with technical assistance from EPA’s regional office in Atlanta and the NC DNR. The case is being prosecuted by the U.S. Attorney’s Office in Greensboro.
Result: Theodore Searcy, owner of Quarter Master, an auto parts cleaning business located in Kernersville, N.C., pleaded guilty to violating the Resource Conservation and Recovery Act by illegally storing hazardous waste. When sentenced, the defendant faces a maximum sentence of:
• Up to five years in prison and/or a fine of up to $250,000.
United States vs. Lakeview Packing Corp.
Activity: Lakeview Packing is a hog slaughter and processing company. The company admitted that it conspired with its employees to intentionally discharge processing wastes from its facility through a drainage pipe into Tyson Marsh which empties into Contentnea Creek, a tributary of the Neuse River. The amount discharged averaged approximately 30,000 gallons per day. The discharge of animal processing wastes into surface waters can make them unsafe for drinking and recreation and can promote the growth of microorganisms such as pfisteria, which can be harmful to fish, wildlife and humans.
Investigation: The case was investigated by EPA-CIDivision and the NC SBI with the assistance of the U.S. Department of Agriculture office of Inspector General, the U.S. Immigration and Naturalization Service and EPA’s National Enforcement Investigations Center. It is being prosecuted by the U.S. Attorney’s Office in Greenville, N.C.
Result: Lakeview Packing Corp. of Snowhill, N.C., plead guilty to conspiracy to violate the Clean Water Act. When sentenced, the company faces:
• A maximum potential fine of up to $500,000.
United States vs. William McClaine
Activity: Employees of B & D Septic Tank Cleaning Company were observed by surveillance teams dumping the contents of their septic tank trucks into a manhole and subsequently into the Cary sewer system. They confessed that they had been illegally dumping sewage into manholes at the Swift Creek Shopping Center.
Investigation: This was a joint investigation by the SBI, EPA-CID and the Cary Police Department.
Result: On March 1, 2002, William McClaine, the owner of B & D Septic Tank Cleaning Company in Raleigh, North Carolina, and two employees, Julius Vann McClaine and Craig Vernone Bumpers, plead guilty in Federal District Court in Raleigh, North Carolina, to illegally discharging into Cary, North Carolina’s sewer system. In a pretrial case diversion, the company and employees agreed to:
• Restitution of $5,224
• 40 hours of community service
• Pay for a Cary newspaper public apology
United States vs. High Rise Services Co., Inc.
Activity: The federal charges related to the operation of High Rise’s business of re-refining used oils into useable products and cleaning storage tanks. High Rise plead guilty to conspiracy to violate the Clean Water Act, the unlawful discharge of oil onto the shoreline and into surface waters, and improper storage of used oil. Simmons (President) plead guilty to the negligent discharge of oil, failing to report a spill and tax evasion. Norris (tank farm foreman) plead guilty to the negligent discharge of pollutants and making false statements to the Coast Guard. Hill (bookkeeper) plead guilty to tax evasion. Releasing oil into surface waters can make the waters unfit for recreation and drinking and can cause significant harm to fish and wildlife.
Investigation: The case was investigated by EPA-CID, the U.S. Coast Guard Marine Safety Office, the U.S. Coast Guard CID, the IRS-CID and the NC SBI. Investigative assistance was provided by EPA’s National Enforcement Investigations Center. Investigative assistance was provided by EPA’s National Enforcement Investigations Center and DENR. It was prosecuted by the U.S. Attorney’s Office for the Eastern District of North Carolina.
Result: On December 9, 2002, High Rise Services Co. Inc., of Leland, N.C., and three individuals: Andrew Jackson Simmons, Jr., of Wilmington, N.C.; Anthony Paul Norris of Leland, N.C.; and Terry Ray Hill of Rocky Point, N.C., all plead guilty in U.S. District Court for the Eastern District of North Carolina in Wilmington. In September 2003, the company was sentenced to:
• Pay a $700,000 fine
• Forfeit $400,000 to the federal government
• File amended tax returns for 1993-99
In June 2003, Simmons was sentenced to:
• 2 years in prison
• 3 years supervised release
• $50,000 fine
• costs of prosecuting the income tax charges.
Norris was sentenced to:
• 5 years probation
• $4,000 fine
Hill was sentenced to:
• 15 months in prison
• 3 years supervised release
State of North Carolina vs. Howard Vance Harrell, III
Activity: The investigation resulted from fishermen finding an instrument containing mercury in Jordan Lake. The instrument was traced to a company by the name of Precision Technologies and its owner, Thomas Armstrong, who had apparently abandoned the equipment at a storage warehouse in Durham, North Carolina. The manager of the mini storage warehouse, Howard Vance Harrell, had subsequently caused the equipment and mercury to have been illegally disposed of on land adjacent to Jordan Lake.
Investigation: This was a joint SBI, NC Wildlife Enforcement and Corps investigation.
Result: Charges against Tommy Armstrong were dismissed. On September 3, 2002, Howard Vance Harrell plead guilty in Durham County Superior Court to the illegal disposal of hazardous material (materials containing mercury) and received:
• A 16 to 20 months sentence, which was suspended
• 18 months of supervised probation
• $500 cost
• Restitution of $2,185.62
United States vs. David Ward Moore
Activity: Moore had admitted to generating false reports and submitting them to DENR on soil and water samples collected from underground storage tank remediation sites, when in actuality, Moore never submitted any of the samples for testing.
Investigation: This was a joint SBI and EPA-CID investigation.
Result: On November 13, 2003, David Ward Moore, an employee and operations manager for STAT Environmental Services of Hudson, North Carolina, plead guilty in the Western Federal District of North Carolina to filing false reports on federally and state mandated environmental reports (finling false reports to DENR). Moore received:
• 2 years of federal probation on each of the two counts
• Ordered not to be involved in any business involving the testing of soil or water
• $200 assessment on both counts
• $2,500 fine
• $107,741.04 in restitution
State of North Carolina vs. Steven Thomas Overcash
Activity: Overcash submitted to DENR three (3) reports from the “Water’s Edge Home Owners Association” in which no water analysis had been conducted.
Result: On November 26, 2002, Steven Thomas Overcash, owner of Overcash Environmental Services, plead guilty in Rowan County Superior Court to two (2) counts of obtaining property by false pretense and three (3) counts of filing false reports with DENR. Overcashe received:
• 30 days active sentence, suspended
• 12 months probation
• Mandated to attend a life skills program
• Pay costs of court
• Pay restitution of $631.58 and $480
• Surrender all state certifications to DENR, including all waste water and drinking water permits
State of North Carolina vs. Don F. Maynor
Activity: Maynor’s company, Cleanwater Environmental, was operating two package waste water treatment facilities which overflowed into the Neuse River or Neuse River basin. When DENR required Maynor to submit Discharge Monitoring Reports (DMRs) from the two facilities, Maynor reluctantly complied and submitted “revised” DMRs from the two waste water treatment plants. When original DMRs (submitted to DENR) and the revised DMRs were compared, numerous discrepancies were noted between the two DMRs from the same time period.
Result: On May 2, 2002, Don F. Maynor, owner of Clearwater Environmental, plead guilty in Wake County Superior Court to two counts of filing false report with DENR. Maynor was sentenced to:
• 30 days confinement, suspended
• 3 years of supervised probation
• Pay $15,878.07 restitution
• Pay $90 court costs
State of North Carolina vs. Adrian Sharpe and Robert Debty
Activity: Investigation revealed that Sharpe and Debty, who had been hired to “log” land adjacent to the Hiawassee River in Cherokee County, had placed an old tank on the property to use as a culvert. When a liquid was discovered in the tank, the cut a 3” by 3” hole in the tank, subsequently releasing an unknown amount of oil into the waterway.
Investigation: This was a joint investigation between the SBI, EPA-CID and the Tennessee Valley Authority (TVA) police.
Result: On November 19, 2002, Adrian Sharpe and Robert Debty plead guilty in Cherokee County Superior Court to the illegal disposal of oil into the waters of the State. Both were sentenced to a:
• Prayer for judgment continued for one year
• Payment of restitution in the amount of $7,273.50
United States vs. Danny Lee Hill and Danny Hill & Associates
Activity: Hill, a licensed “operater in responsible charge” (ORC), operated thirteen waste water treatment plants in a 3-county area around Guilford County, North Carolina. As a result of DENR inspections at the 13 waste water treatment plants, it was suspected that Hill was falsifying the Discharge Monitoring Reports (DMRs) that Hill was mandated to submit to DENR each month. Some of the DMRs reflected that Hill was visiting separate waste water treatment plants at the same time on the same date. Hill violated the Clean Water Act by discharging wastewater exceeding the levels permitted in his discharge permit for Biological Oxygen Demand and Total Suspended Solids into a tributary of Caraway Creek. The discharge, which occurred in January 2001, was from the wastewater treatment plant at the Countryside Communities LLC located in Randolph County, N.C. Exceeding discharge permit levels can harm fish and aquatic life and can make surface waters unfit for drinking and recreation.
Investigation: This was a joint investigation involving the SBI, DENR and EPA-CID.
Result: On December 20, 2003, Danny Lee Hill, onwer of Danny Hill & Associates, plead guilty in the Federal Middle District Court in Greensboro, North Carolina, to illegally discharging of pollutants into the US waters, an was sentenced to:
• 5 months active sentence in the Federal Bureau of Prisons
• 5 months of house detention
• 1 year of supervised release
• 100 hours of community service
• $100 special assessment
United States vs. Balfour Beatty Construction, Inc.
Activity: In its plea, BBC admitted to illegally acting without an Army Corps of Engineers permit in Oct. 2002, when it dredged a portion of the Croatan Sound in North Carolina, and discharged the dredged spoil into the Sound. The violations occurred when BBC’s employees removed a temporary load-out trestle that had been constructed in shallow waters near Manns Harbor. The construction was part of the Virginia Dare Memorial Bridge project, which built a five-mile bridge spaning the Croatan Sound from Manns Harbor to Manteo, N.C. In order to get a crane to the trestle site, BBC employees used backwash from a tugboat propeller to cut a channel next to the bridge trestle. As a result, 5500 cubic yards of dredged spoil was expelled from the channel and deposited on 8.2 acres of habitat on the sound bottom. Croatan Sound has been designated as high quality waters by the federal government because it is an essential area for spawning fish and/or wildlife. Covering such a habitat with spoil can damage fish and wildlife.
Investigation: The case was investigated by EPA-CID, the U.S. Army Corps of Engineers and the NC SBI. It is being prosecuted by the U.S. Attorney’s Office for the Eastern District of North Carolina.
Result: On May 17, 2004, Balfour Beatty Construction, Inc. (BBC), a subsidiary of the United Kingdom company, Balfour Beatty, PLC, pled guilty to violating both the Rivers and Harbors Act and the Clean Water Act. When sentenced, BBC faces:
• A maximum penalty of up to $200,000 and/or up to five years probation on each count.
United States vs. Michael E. Hillyer (Balfour Beatty Construction, Inc.)
Activity: As project manager for BBC, Hillyer oversaw the dredging of a portion of the Croatan Sound and supervised the discharge of the dredged spoil into the Sound in October 2002. BBC did not have a permit from the Army Corps of Engineers to do this work. The violations occurred when BBC's employees removed a temporary load-out trestle that had been constructed in shallow water near Manns Harbor as part of the Virginia Dare Memorial Bridge construction project. The five-mile bridge spans the Sound from Manns Harbor to Manteo. In order to get a crane to the trestle site, BBC employees used backwash from a tugboat propeller to cut a channel next to the trestle. As a result, 5500 cubic yards of dredged spoil was expelled from the channel and deposited on approximately 8.2 acres of habitat on the sound bottom. Croatan Sound has been designated as high quality waters, and covering habitat can injure fish and wildlife.
Investigation: The case was investigated by the Charlotte Office of EPA-CID, the U.S. Army Corps of Engineers and the NC SBI. It is being prosecuted by the U.S. Attorney's Office for the Eastern District of North Carolina.
Result: On October 5, 2004, Michael E. Hillyer of Mt. Pleasant, S.C., project manager for Balfour Beatty Construction Inc. (BBC), a subsidiary of the United Kingdom-based Balfour Beatty, PLC, plead guilty in U.S. District Court for the Eastern District of North Carolina in Raleigh, N.C., to conspiring to violate the Rivers and Harbors Act (RHA) and the Clean Water Act, and to a substantive violation of the RHA. When sentenced, Hillyer faces a maximum penalty of:
• Up to 4 years in prison and/or a maximum fine of up to $500,000.
United States vs. Michael Todd Ball
Activity: Ball conspired with others to falsify wetlands delineation maps and make specific parcels of land suitable for development. He then assisted in the development of a false delineation map and forged the signature of an Army Corps of Engineers official on the false map. The map was then turned in to the Corps to justify land-clearing activities which impacted protected wetlands.
Investigation: The case was investigated by the Charlotte Office of EPA-CID, the SBI, the Defense Criminal Investigative Service, the U.S. Army-CID and the Corps. It was prosecuted by the U.S. Attorney’s Office in the Eastern District of North Carolina.
Result: On November 15, 2005, Michael Todd Ball of Loganville, Georgia, plead guilty in U.S. District Court for the Eastern District of North Carolina to conspiracy, making a false statement and violating the Clean Water Act.
United States vs. Douglas Alan Bateman and Herbert F. O’Neal
Activity: Bateman and O’Neal were NC DOT employees that were part of a crew in May 2004 that used Ferry Division workboats to cut, or “kick,” a channel in the shallow Currituck Sound near Corolla. The activity is associated with efforts to establish a passenger ferry service between the Currituck community and Corolla, a route of approximately 10 miles.
Investigation: The case is being prosecuted by the U.S. Attorney’s Office.
Result: On November 21, 2005, Bateman and O’Neal entered a plea agreement that requires them to:
• Fully cooperate with the ongoing investigation
• Testify in court, if necessary
• Be sentenced at a later date
United States vs. Billie R. Moore
Activity: At the time of the illegal dredging, Moore was dredge and field maintenance superintendent for the state Department of Transportation's Ferry Division. According to the Justice Department, Moore was the Ferry Division's project manager in charge of developing ferry service between mainland Currituck County and Corolla. Moore's assignments included overseeing construction of a pier near the Whalehead Club in Corolla where the ferry could dock. Moore ordered O'Neal, Bateman and other employees to use the propellers of three dredging vessels to dredge the shallow bottom of the Currituck Sound in May 2004. "At one point, the crews positioned two of the vessels nose-to-nose and prop washed," the Justice press release stated. "As a result of the unauthorized conduct, the defenders created a channel that was approximately 730 feet long, 4 to 5 feet deep, and 120 feet across at the widest point." The depth of the channel was reportedly increased from 3 feet to 5 feet. After the damage was discovered, it took DOT six weeks to repair the channel. Moore ordered the unauthorized dredging even though he knew that the work first required federal approval, the Justice press release stated. The Rivers and Harbors Act of 1899 prohibits dredging or other construction in U.S. waters without a permit from the U.S. Army Corps of Engineers and approval from the Secretary of the Army. The Clean Water Act regulates the discharge of pollutants into U.S. waters. Moore violated federal law by ordering two subordinates in 2004 to dredge the Currituck Sound without the required federal permit. Moore then "lied" when questioned by the U.S. Army Corps of Engineers about why the illegal dredging occurred. Moore initially claimed that the dredging happened accidentally. Moore also "directed another person to create a false statement" to the Corps of Engineers about the dredging.
Investigation: In June 2004, the state's Division of Coastal Management served the DOT with a Notice of Violation for dredging the Currituck Sound without a permit. Subsequently, the State Bureau of Investigation and the Environmental Protection Agency each launched investigations of the DOT's ferry division office in Morehead City.
Result: On December 15, 2005, Moore plead guilty in U.S. District Court in Raleigh Thursday to ordering the illegal dredging of the Currituck Sound. He plead guilty to violating the Rivers and Harbors Act of 1899and to one felony count of violating the U.S. Clean Water Act. Sentencing will occur at a later date.
List of North Carolina Environmental Crimes
GS 14-284.2: dumping toxic substances
GS 14-399: littering
GS 90A-66: sanitarian registration violation
GS 104E-23: radioactive materials violation
GS 113-55: refusal to assist in extinguishing fires when physically able
GS 113-58: destroying, defacing, removing or disfiguring any sign, poster, or warning notice
GS 113-60.3: closed woodland violation
GS 113-60.29: open fires violation
GS 113-135: first-time violation of marine fisheries and wildlife statute or rules
GS 113-135: second or subsequent violation of marine fisheries and wildlife statute or rules
GS 113-136: refusal to stop at the direction of an inspector or protector
GS 113-171.1: using a spotter plane directed at food fish
GS 113-187: unlawful commercial fishing operation
GS 113-191: unlawful sale or purchase of fish
GS 113-202: false statement about shellfish
GS 113-207: taking clams on oyster rocks posted by DENR; taking shellfish near public pier & DMF clutch material
GS 113-208: taking shellfish from a private lease
GS 113-209: taking shellfish from areas closed to harvest because of suspected pollution
GS 113-229: dredge and fill violation
GS 113-262: taking fish through the use of poisons, drugs, explosives or electricity
GS 113-268: interference with nets, traps, pots, and other devices to catch fish
GS 113-269: injuring aquaculture
GS 113-275: fishing license violation
GS 113-277: fishing suspension violation
GS 113-378: failing to register with DENR, failing to furnish bond, or failing to file complete log of drilling and development of each oil and gas well
GS 113-409: false statement about oil and gas
GS 113A-43: Natural and Scenic Rivers violation
GS 113A-64: Sedimentation Pollution Control violation
GS 113A-126: Coastal Area Management violation
GS 113A-170: unlawful outdoor advertising structure or junkyard along the Blue Ridge Parkway
GS 113A-211: county ordinance or Mountain Ridge Protection Act violation
GS 113A-226: Aquatic Weed Control Act violation
GS 130A-25: Public Health violation
GS 130A-26.1: unlawful handling of hazardous waste or false statement
GS 130A-26.2: solid waste false reporting or tampering
GS 130A-309.15: unlawful handling of used oil
GS 130A-309.17: failing to register with DENR as a person handling used oil
GS 143-152: injury to water supply
GS 143-214.2A: medical waste violation
GS 143-214.4: medical waste violation - substantial risk of physical injury to other
GS 143-214.4: manufacturing, selling or distributing unlawful phosphorus cleaning agent
GS 143-215.6B: water quality violation or false statement
GS 143-215.17: water resources violation
GS 143-215.36: Dam Safety violation
GS 143-215.58: water withdrawal violation
GS 143-215.69: Water and Air Quality Reporting violation
GS 143-215.88B: discharging oil or other hazardous substance or making false statement
GS 143-215.94X: underground storage tank violation, tampering, or false statement
GS 143-215.95: Oil Terminal Facilities violation
GS 143-215.102: Oil Refining Facility violation
GS 143-215.104Q: dry cleaning violation, tampering, or false statement
GS 143-215.114B: air quality violation or false statement
Safe Rivers and Harbors Act
Federal Water Pollution Control Act (also known as the Clean Water Act)
Clean Air Act
Solid Waste Disposal Act (including, in Subchapter III, The Resource Conservation and Recovery Act (RCRA))
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
Energy Supply and Environmental Coordination Act
Toxic Substances Control Act (TSCA)
Surface Mining Control and Reclamation Act
Protection of Navigable Waters and of Harbor and River Improvements Generally, Rivers and Harbors Appropriations Act, Refuse Act
Marine Protection Research and Sanctuaries Act, (also known as the Ocean Dumping Act)
Deepwater Port Act
Act to Prevent Pollution From Ships
Safe Drinking Water Act
Atomic Energy Act
Noise Control Act
Comprehensive Environmental Response, Compensation & Liability Act (CERCLA)
Emergency Planning and Community Right to Know Act (EPCRA) (also known as SARA Title III)
Outer Continental Shelf Lands Act
Federal Hazardous Material Transportation Statute
Environmental Crimes Guidance (last updated 2006)