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Bush's EPA Is Pursuing Fewer Polluters

Thomas R. Kiley, a private lawyer hired to represent the state and its workers during the investigation, said the EPA "was pushing hard" for indictments. Kiley believes that the state's agreement to clean up the asbestos at the site "may have had some persuasive effect" on the decision not to file charges.

The Massachusetts case is emblematic of the steep decline in criminal cases initiated by the EPA. The number of environmental prosecutions plummeted from 919 in 2001 to 584 last year, a 36 percent decline, according to Justice Department statistics collected by Syracuse University's Transactional Records Access Clearinghouse.

Those same Justice Department data also show that the number of people convicted for environmental crimes dropped from 738 in 2001 to 470 last year.

Similarly, the number of cases opened by EPA investigators fell 37 percent, from 482 in 2001 to 305 last year, according to data the EPA provided congressional investigators.

EPA and Justice officials have highlighted recent cases such as the conviction this summer of oil giant Citgo on two counts of violating the Clean Air Act and three misdemeanor violations of the Migratory Bird Treaty Act. Just last week, Justice officials held town hall meetings in Corpus Christi, Tex., collecting more than 200 victim-impact statements from residents affected by refinery operations. The statements will be used in an upcoming sentencing hearing.

But government officials said even that case was marred by early inaction. When the EPA's criminal investigations office in Houston first recommended prosecuting the company, the U.S. attorney's office would not immediately commit unless Justice Department headquarters took the lead.

"Yes, we did have limited resources, and we decided if it could be handled by experts in Washington, we would work with them on it," said DeGabrielle, the U.S. attorney.

The Justice Department in August also touted a plea bargain with IMC Shipping Co. that required the Singapore ship operator to pay $10 million in connection with a massive oil spill in 2004 that killed thousands of birds in Alaska's Maritime National Wildlife Refuge.

Prosecutors told the court they had enough evidence to indict the company for criminal negligence under the Clean Water Act and for making false statements early in the investigation. But the deal they reached called for guilty pleas to two counts of violating the Refuse Act and one violation of the Migratory Bird Treaty Act. Prosecutors cited the company's cooperation for the leniency.

The decision to drop the negligence charges could be valuable to the company, which as a result remains eligible to seek reimbursement from a special government fund for $77 million of the more than $100 million it has spent cleaning up the spill.

The Oil Spill Liability Trust Fund -- administered by the U.S. Coast Guard and funded by a special oil tax -- can reimburse shippers for all cleanup costs not covered by insurance, but only if the incident does not involve gross negligence or willful misconduct.

"Surely nobody here would have wanted to have a finding of negligence for any number of reasons, the fund and the civil side among them," said Robert C. Bundy, a private lawyer who represented IMC in the criminal case.

EPA agents cite other instances that they say have sent a subtle message about their enforcement work, such as the time James Palmer, the EPA's Southeast regional administrator, took a day off in 2005 to testify as a private citizen against his own agency as a defense witness for a Mississippi developer accused of environmental violations.

"The government's proposals were heavy-handed," Palmer testified when asked about the EPA's actions against the developer, his former law client. He also acknowledged calling the agency's tactics in the case "unethical."

Research editor Lucy Shackelford and staff researcher Madonna Lebling contributed to this report.


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