EPA:

Pursuit of gasoline dumper spurs debate over fugitives list

Eighth story in an occasional series about EPA's fugitives list.

It wasn't hard to track down Jun Wang the first time he ran from the crime that would eventually land him on U.S. EPA's list of wanted fugitives.

Wang fled after employees of a Kettering, Ohio, tire shop confronted him as he drained gasoline from his delivery truck into a storm sewer near their store on Nov. 18, 2003.

Amid the commotion, the panicked Wang failed to replace his fuel-tank plug, and his truck trailed gasoline through a parking lot and through the streets of Kettering.

He didn't replace the plug until his next food delivery stop. But it was too late. Authorities weren't far behind.

Wang, a Chicago native, was eventually charged with one count of criminal violation of the Clean Water Act. Facing up to three years in prison and a quarter-million dollars in fines, he ran a second time.

This time, he's been harder to track down.

To aid in the ongoing search, EPA added Wang to its online database of environmental fugitives three years ago.

Since it was created in 2008, EPA officials credit that list with helping nab a handful of eco-fugitives and informing the public about the agency's law enforcement work. But it has also increasingly become a rallying point for EPA critics who believe the agency has overstepped its original mission with its criminal enforcement efforts.

Adrian Moore, the vice president of policy at the free-market Reason Foundation, questioned last week whether Wang's deeds truly warranted a criminal charge and potential three-year prison sentence.

"That seems to me like a ticketable offense," Moore said in an interview.

Wang's case is a perfect example, he said, of the unbridled expansion of criminal law into areas of society that were once overseen by regulatory enforcement and civil law.

"Regulatory agencies like the idea of criminalization because it gives them more clout, it gives them more tools to use against offenders," Moore said. "It's a classic problem in government agencies, trying to do too many things."

But one of the men who helped create the EPA fugitive list said last week that that effort, and EPA's larger criminal enforcement program, play a vital role in the agency's mission.

"It's a specialty crime. ... And for certain types of crime you need to develop an expertise," said Mark Measer, who spent nearly two decades as an EPA special agent before retiring in 2010.

'Stop what you're doing!'

Ken Bontrager, the service manager at the Gallagher Tire Center in Kettering, remembers the day that Wang walked into his shop to borrow a 3/8-inch ratchet.

Wang, a driver for the New Shun Shing International Trading Co., had accidentally filled up one of his delivery truck's two fuel tanks with gasoline. The truck ran on diesel.

After making his delivery at a Chinese buffet restaurant in the shopping center, Wang parked over the storm drain in the alley behind Bontrager's tire shop and decided to take care of his fuel problem.

Not that he told Bontrager or anyone else in the shop what he had in mind when he borrowed the ratchet.

"He saw a golden opportunity with that drain there I guess," Bontrager recalled in an interview last week. "He went out there, squatted down there and popped the plug."

The smell of gasoline that soon began rising from Gallagher Tire's floor drains tipped off shop employees as to what was happening out back.

"We had no idea what he was going to do until we seen it then we started hollering at him," Bontrager said. "At first he said 'Wait!' and we said 'No! No wait! Stop doing what you're doing!' And that's when he jumped in the truck and took off."

Bontrager remembers Wang's truck barreling down the alley with gas pouring from the open fuel drain.

"He knew that he was gonna be stopped," Brontrager said. "Whatever it was gonna take, I'm sure the guys were gonna stop him."

According to a release from the U.S. Attorney's office when his indictment was announced, Wang had drained about 32 gallons of gasoline into the storm drain before he was stopped.

The Kettering Fire Department and Dayton area HAZMAT crews had to be called to clean up the fuel, some of which drained it into Little Beaver Creek, a tributary of the Ohio River that is classified as a national wild and scenic river.

"It is a federal crime to dump hazardous materials into storm drains since they often drain directly into our water supply," said Gregory Lockhart, U.S. attorney for the Southern District of Ohio, in a July 2004 release. "Only prompt action by the tire shop employees and the first responders from the Kettering Fire Department and area HAZMAT crews prevented further environmental damage."

'Trivializing' most-wanted lists?

Because Wang fled, the case never made it past indictment, and nearly eight years later he remains on the lam.

Investigators from U.S. EPA's Office of Criminal Enforcement, Forensics and Training (OCEFT) -- the agency's criminal investigative arm -- say Wang may be living somewhere near Shunyang in northeast China. That information, along with a physical description of Wang and an EPA-produced wanted poster all appear on EPA's fugitive database.

But in recent months some wonder whether that list, and the ongoing search for fugitives like Wang, is really the best use of EPA resources.

Last fall, former Justice Department counsel and Federal Election Commission appointee Hans von Spakovsky blasted EPA's fugitive list in a blog post for the National Review Online.

Spakovsky expressed concern over how Congress has, over the years, given federal regulatory agencies such as EPA the ability to criminalize conduct.

"There is no doubt that there are occasionally serious violations of our environmental laws that should be pursued by the federal government," wrote Spakovsky, who now works as the manager of the civil justice reform initiative at the conservative think tank, Heritage Foundation.

"But creating a most-wanted list for these types of environmental violations, something that the FBI has used to hunt down truly dangerous criminals ... trivializes the seriousness of criminal most-wanted lists and makes a mockery of environmental law.

"It also makes the EPA look like an out-of-control federal agency that should be featured in National Lampoon or The Onion," he added.

Today the fugitive list includes 18 individuals whose alleged crimes span a broad range of environmental wrongdoings.

Some are charged with building entire enterprises around skirting environmental laws in order to line their pockets. One is charged in connection with the transportation of hazardous materials that blew up on the 1996 ValuJet flight that crashed in the Everglades near Miami (Greenwire, May 1, 2011).

And then there is Wang, who's smiling mug shot stands out as the friendliest face on EPA's fugitive list.

The Reason Foundation's Moore questioned whether a technocratic agency like EPA is equipped to deal with the tricky tradeoffs and judgment calls that often come with criminal law enforcement and wondered whether the case would have risen to that level if the FBI had been allowed to look into the matter and exercise its judgment.

"There's no need for environmental law enforcement; there's need for law enforcement," Moore said. "EPA should stick to environmental protection and if they have an issue that crosses into criminal they should partner with those specific federal agencies," which specialize in criminal law enforcement.

Paul Larkin, a senior legal fellow who manages the Heritage Foundation's overcriminalization project, told Greenwire last week that he agreed that the FBI would be a better choice for investigating environmental crimes.

The acknowledgment is notable coming from Larkin, who spent six years as an agent in EPA's office of criminal enforcement.

A question of resources

OCEFT was not an original part of EPA when it was formed in 1970 and the agency had no criminal enforcement functions in its early years. In fact, it wasn't until 1976 that the first extensive guidelines for proceeding with criminal cases were issued by EPA. A decade later, EPA's investigative staff still had fewer than three dozen agents.

Today, OCEFT is made up of fewer than 400 staff, including about 200 special agents and 125 forensic specialists and scientists who work at the National Enforcement Investigations Center in Colorado.

But despite that growth, OCEFT employees still represent 2 percent of EPA's total staff of around 17,000.

Larkin said the FBI simply has more bodies and more equipment that could be employed more effectively when serious environmental crimes need to be investigated.

The FBI "is an agency that is committed to law enforcement, that's its mission," he said. "The EPA has very different missions, one of them is environmental, one is scientific, one is regulatory, one is to help people. Criminal enforcement was not seen by anybody as being a really important mission, although they'll deny that."

He added that EPA's criminal division was chronically underfunded during his time there. Others have criticized the program for high attrition rates and poor management in recent years.

In 2010, an EPA-sponsored independent review of the office's personnel practices and a survey conducted by the Office of Personnel Management painted a picture of an office rife with management challenges and low moral (Greenwire, March 2, 2011).

A 2010 survey of criminal enforcement division employees that was conducted by the outside group showed that 43 percent believed that the headquarter's managers do not provide sufficient resources -- including time, training and dollars -- to promote improvement throughout the organization.

Still, Larkin said he is certain EPA's office of criminal enforcement is not going away anytime soon.

"I think EPA likes to be in a position where they can say 'Agree to this civil penalty or we'll sick our big brother on you,'" he said. "I don't think that's why it was initially formed, but I think that's what it has become."

'Timing is everything'

As EPA's fugitive list hit its third anniversary last month, the agency can count five members who have been captured and two others who have turned themselves in.

Measer, who was part of the EPA working group that developed the fugitives list in 2008 and now works at the Burnside Environmental Group in Washington, D.C., said that the effort is a success. He also is skeptical that EPA's criminal efforts would be as successful if the entire effort was simply shipped over to the FBI.

Just as FBI agents develop expertise in counterterrorism or bank robbery investigations, Measer said, EPA agents know what to look for when investigating Clean Water Act or Clean Air Act crimes.

During his years at the agency, Measer said he met a few FBI officials who showed an interest in environmental crimes, but it was never a top priority for the bureau. And in the wake of the September 11, 2001, terrorist attacks, environmental crimes fell off the FBI's radar.

"They pretty much withdrew from environmental crimes after 9/11 when they refocused their priorities," he said.

As for the recent criticism over the fugitives website itself, Grant Nakayama, a former EPA assistant administrator for the Office of Enforcement and Compliance Assurance who first proposed creating a list in 2006, wonders if the concern might be more about politics than concerns about the criminal justice system.

"Timing is everything," said Nakayama, who is now a partner with Kirkland & Ellis in Washington, D.C. "When we began the list it was under an administration where EPA was being criticized for not doing enough. The website has been around for a while and it has had success in catching fugitives. It's interesting that people want to go after it now for being too aggressive."

He added that there will always be people who are concerned about EPA's enforcement efforts.

"But the enforcement office just takes the rules and enforces them. It's probably the least political office" at EPA, he said.

Mears said he also believes that criticism of EPA's criminal program might have more to do with politics than anything else.

"I think some people in certain foundations and organizations and of certain political ilks don't want to make these business people into criminals," he said. "They don't want to label the vice president of some corporation a bad person. But these were people who knew what the law was and to save money they chose to break the law."

'It's a big world'

Back in Kettering, Ohio, Ken Bontrager doesn't care much about the politics of EPA's criminal enforcement program. He sees the Wang incident as a case of a guy trying to fix a costly mistake by doing something he knew was wrong.

And he shouldn't get away with it just because he decided to run, Bontrager said.

"I think it warrants whatever it takes to get him. Sure," he said.

But, he also acknowledged that that may be easier said than done.

"It's a big world," he said. "There's a lot of places to hide."

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