Enforcement Abuse Alive and Well at EPA

Published June 1, 2003

Trumped-up charges, tampered-with evidence, and armed police raids–these are just some of the tactics known to be employed by foreign dictators against their own people.

It may be less widely known, however, that such tactics are also employed on domestic soil, by agents of our own federal government … including the Environmental Protection Agency.

Just ask James Knott, owner of Riverdale Mills Corporation (RMC), a Northbridge, Massachusetts-based manufacturer of plastic-coated wire mesh used in lobster traps around the world. Founded in 1979, RMC was one of five Massachusetts companies to win the coveted Governor’s Award for Outstanding Achievement in Toxic-Use Reduction in 1999.

But the company’s exemplary environmental record was called into question by a series of events that resulted in Knott’s indictment in 1998. Those events showcase EPA enforcement policies at their worst.

EPA Raids Facility

Knott’s ordeal began in 1997, when EPA received an anonymous tip alleging RMC was illegally discharging highly acidic wastewater into the Northridge sewer system. On the morning of October 21, 1997, two EPA agents arrived unannounced at the RMC plant and sought permission to inspect the facility. Knott agreed, provided they were accompanied by company officials.

The EPA agents measured the pH of wastewater discharges at an RMC-owned sewer and a public sewer, finding them both to be 7, or neutral, neither acidic nor caustic. Although they had agreed to Knott’s condition that they be accompanied at all times, the EPA agents managed later that afternoon to take additional samplings out of sight of RMC officials.

On November 7, EPA paid another visit to Knott’s company. As described by U.S. District Judge Nathaniel Gorton, “a virtual ‘SWAT team’ consisting of 21 EPA law enforcement officers, many of whom were armed, stormed the RMC facility to conduct pH samplings.”

Nine months after EPA’s raid, a federal grand jury indicted Knott and RMC on two felony counts of violating the Clean Water Act. EPA claimed Knott and RMC had “knowingly allowed untreated acidic wastewater to be discharged” into the town’s sewers. If convicted, Knott faced a six-year prison term and up to $1.5 million in fines.

Tampered With Evidence

There may well have been criminal activity involved in the case, but not on the part of Knott or his company. While reviewing log books EPA agents kept on their October 21 and November 7 visits, Knott’s attorneys noticed something suspicious: Some of the measurements contained in the log books appeared to have been altered.

Knott hired a retired FBI handwriting expert to review the documents. His analysis showed that a lawful pH reading of 7 had been altered so that it looked like a 4, and that other 7s had been altered to look like 2s. A reading of 5 or above indicates compliance with the law.

In addition, it was learned that during the November 7 raid EPA agents took seven pH readings at a manhole next to the town’s sewer system, all of which showed pH readings well within legal limits. EPA withheld those readings from an affidavit supporting a search warrant for which it had applied shortly before Knott and RMC were indicted.

Judge Rebukes EPA

With each revelation of EPA misconduct, the government’s case against Knott, set to go to trial in May 1999, weakened to the point of collapse. After viewing the altered log books, Judge Gorton threw out the pH readings taken by EPA agents on the afternoon of October 21, because they had been measured in the absence of RMC officials in violation of EPA’s agreement with Knott. Citing what he described as “surreptitiously obtained samples,” Gorton said EPA had violated Knott’s and his company’s Fourth Amendment rights against unreasonable searches and seizures.

Its position no longer tenable, the government dropped its case. Knott has since sued EPA and the three agency employees involved in the case for malicious prosecution and is seeking more than $15 million in damages.

“These people need to be exposed,” Knott says. “I don’t want them to do to others what they did to me.”

Though they could not have foreseen EPA’s misconduct in the Jim Knott case, former Assistant U.S. Attorney General Roger Marzulla and Reason Foundation analyst Alexander Volokh noted several years ago that “current environmental enforcement policy often violates fundamental principles of fairness and justice–by using criminal punishments when they are not appropriate, by abandoning traditional concepts of intent and responsibility, and by eroding constitutional protections.”

Bid for Cabinet Status

In November 2002, James Connaughton, chairman of the White House Council on Environmental Quality, said EPA should be elevated to cabinet-level status, “the sooner, the better.”

But before Congress even considers such a move, lawmakers should hold the agency accountable for its conduct in the Jim Knott case, and in other cases where enforcement officials have abused their power.

In addition to investigating EPA’s enforcement practices, Congress should take a hard look at how the agency uses science, how it treats its own scientists who question EPA policies, and how it dispenses grants to political allies in the environmental movement.

The results of these investigations may make Congress think twice before taking Connaughton’s advice and bestowing cabinet-level status on EPA.

Bonner R. Cohen is a senior fellow at the Lexington Institute in Arlington, Virginia.