The Would-Be Toxic Avenger

Attorney General John Kroger campaigned on a promise to put polluters behind bars. So why hasn't he prosecuted a big case?

John Kroger

When he ran for office, Attorney General John Kroger said the state's prosecution of polluters was inadequate and he would put the worst ones behind bars. Three years later, one has done time: a landscaper who dumped 60 truckloads of dirt, barrels and plastic pipes on his foreclosed property. He did two days in the Marion County jail.

Kroger made environmental prosecutions a cornerstone of his 2008 campaign, promising to bust toxic polluters. He reminds Oregonians in every press release that protecting the environment is part of the state Department of Justice's mission.

Kroger has prosecuted more polluters than any Oregon attorney general, but records show they've been small targets: individuals dumping polluted water or drilling illegal wells, and a Linn County dairy mishandling cow wastes.

His agency hasn't charged a big polluter or made a case  that shows widespread environmental crimes have gone unpunished.

"We have fulfilled the promise of looking at these cases differently," says Kroger spokesman Tony Green. "It's a little on the unreasonable side to look at cases that have been completed in less than two years' time as measurement of whether an attorney general has done what he promised."

Kroger won support from environmental groups in 2008, and today some say his work provides a disincentive for companies to break state pollution laws.

"The cases may not be on the scale of the BP oil spill, thank goodness, but the fact he's prosecuting cases changes the equation," says Sue Marshall, a policy consultant with Tualatin Riverkeepers. "When they pursue these as criminal cases, the word gets out."

But Nina Bell of Northwest Environmental Advocates says prosecuting "mom and pop" operations provides little deterrent for large, chronic polluters. "It doesn't feel like anything has jumped out at me so far," Bell says of Kroger's cases, "so that sort of speaks for itself."

The Department of Environmental Quality is the cop on the beat and can levy civil penalties. Kroger, during his campaign, said many DEQ cases deserved criminal prosecution but district attorneys didn't have the time, experience or inclination.

Lawmakers approved Kroger's environmental crimes unit in 2009, and it's had five convictions out of 53 investigations. Nine more with charges remain open. (This count doesn't include fish and wildlife cases, which the state already completed, or those led by the U.S. Environmental Protection Agency.) Another 14 are under investigation.

The case against George Joseph Davenport is typical. The state alleged Davenport, 30,  who worked for D&S Water Services of Salem, pumped thousands of gallons of oily wastewater from car-wash holding tanks into storm drains in 2009. Davenport pleaded guilty to misdemeanor water pollution charges and was sentenced to 36 months probation, 120 hours community service and a $1,500 fine. 

One major case Kroger's office declined to prosecute involved Bandon Pacific. Owned by Dulcich Inc.—which runs Pacific Seafood Group, one of the West Coast's largest seafood distributors—Bandon Pacific disclosed in 2008 that it failed to monitor its wastewater. The state found more than 4,000 water-quality violations, including fish carcasses dumped in the Coquille River.

In December 2009, the DEQ levied a $208,554 civil fine against Bandon Pacific, but it wasn't the first time for its owner. The DEQ says it has fined Dulcich subsidiaries  seven times, including a $40,591 fine three months earlier.

Bandon Pacific looked like the kind of case Kroger said he would pursue—egregious, prominent and big enough to send a signal to polluters. But Green says Bandon Pacific reported the problems, the DEQ's fines seemed adequate punishment, and there was no new evidence of laws being broken.

"We had to consider how to explain to a judge that the 11th-largest fine in DEQ history hadn't adequately resolved the matter," Green says. "Without evidence of pollution after the fine, we did not feel we could meet our burden."

Kroger's most prominent case turned out to be a bit of a fiasco. Hood River Juice had been charged by the local district attorney with 18 felony counts, mostly for water pollution. Kroger's office later took over the case.

Kroger's environmental counsel, Brent Foster, failed to disclose he had personally tested wastewater near the Hood River Juice plant. Foster resigned in April 2010, undermining the case's credibility.

Hood River Juice pleaded guilty to two misdemeanor counts of water pollution and one count of making a false statement to the DEQ. The company's owner, David Ryan, pleaded guilty to one count of each.

Hood River Juice's attorney, David Angeli, says the state's prosecution was overkill. "I'm not saying there aren't companies that deserve to be investigated," Angeli says. "But I think [Kroger] ran on a false premise about environmental crimes to begin with. It's not the widespread problem he made it out to be.” 

WWeek 2015

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