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Toxic Justice

From a distance, the midmorning scene in the fenced-in yard of a warehouse storage company in northern Miami-Dade County was so common as to be commonplace: two men standing in the open cargo bay of a panel truck, waiting for a series of metal drums to be lifted and loaded, one by one, into the truck by forklift.

This, after all, is what they did at County Line Moving and Storage. They moved things.

But then Phillip Shoemaker was not watching from a distance. He was one of the men standing in the cargo bay, and from that vantage point he couldn't help but notice that some of the details of this workday scene were anything but common.

For instance, the drums. It isn't every day a cluster of rusty metal and blue plastic drums is loaded onto a rented Ryder truck. Furniture, one would expect. But drums like these?

Most of them were standard 55-gallon metal drums; a couple were larger, holding 80 gallons; four were smaller and made of blue and black plastic. Some had ill-fitting, lopsided lids, others no lids at all. The metal drums were covered with patches of rust, and all were coated with drips and splatters of various hues -- pink, brown, red, blue, gray, and black. One had what appeared to be part of a ceiling fan stuck to it. And, while most were labeled, the writing was largely obscured and appeared to be in German.

Nobody knew where the drums had come from, or how long they'd been sitting in this corner of County Line's property. As the forklift jerked the barrels off the ground, liquid sloshed over their rims, onto the truck bed, even onto Shoemaker's arms.

Whatever the liquid was, the knowledge that it had touched his skin was making Shoemaker feel ill. In fact, the smell alone, which he later described as a "noxious odor," was sickening. But he'd expected as much; that's why he and his helper had brought along surgical masks and rubber gloves, which evidently weren't long enough to protect his arms.

But the strangest detail of all -- and also, to Shoemaker's mind, the most bothersome -- was the flash of metal that every so often peeked out of the forklift driver's waistband. He was obviously armed. And he wasn't the only one. Looking around, Shoemaker noticed "three guys standing around carrying guns," he recalls.

As he stood in the truck bay, facing a row of stinking drums, he considered the implications of everyone in sight being armed. Everyone but him. He decided to get out of the truck.

"All things considered, that didn't seem to be the best place to be, standing up in there surrounded by walls on three sides," he says. Once on the ground, he casually sidled around the corner of the truck and walked to the driver's side of the cab. Opening the door, he ducked his head and shoulders into the cab, reached behind the driver's seat, and unholstered his own gun. He put it between the seats, covered it with a newspaper, and ducked back out, leaving the cab's door open. If anything went wrong, he wanted to make sure he could make a beeline for the gun.

Across the street, Shoemaker's partner, Guy Gilbert, an investigator working for the Division of Law Enforcement (DLE) of the state Department of Environmental Protection (DEP), stood behind the window of a fire station, silently watching, willing himself to wait. He says he knew that "if anything bad happened, I'd have been too far away to help."

But from that point on, everything rolled forward without a hitch. The drums were loaded, the rear door of the truck was hauled shut, and Shoemaker drove out of the front gate of the warehouse yard.

As he did so, the tension fell away from his body and mind. The difficult, dangerous, and stressful phase of the investigation was over. With only two days' planning, Gilbert and Shoemaker had pulled off a sting operation that had prevented yet another South Florida business from saving money by dumping toxic substances illegally.

Now all they had to do was finish up the lab work, serve the subpoenas, and help out the prosecutors. The evidence was in. They had the company's owners -- residents of Miami and Weston -- on tape, making a deal with Shoemaker to dump the drums in the Everglades. To the pair of veteran DEP investigators, the case seemed solid as a rock, in Gilbert's words, "one of the strongest environmental cases I've ever put together." The next day, he was filling out paperwork when he came across the following question on a briefing report: "What is the anticipated length and result of the investigation?" His confident assessment: "I anticipate it will take approximately two weeks for the investigation and procurement of arrest warrants."

He was wrong. Not until two years later were arrests made, and by that time Gilbert's case had been dropped by a county prosecutor and picked up by the federal government. Punishing the polluters, he found out, was a lot more complicated than catching them in the act.

The sting hadn't taken long for Gilbert to set up. Just two days earlier he'd received a phone call from a confidential informant who told him that a company was looking to hire someone to get rid of some drums filled with toxic substances.

But Gilbert's investigation actually had begun three months earlier, with another ringing of another phone on a cool day in February 1997. The phone was answered by Cathy Porthouse, a coordinator for the DEP's Bureau of Emergency Response (BER). The call was coming from someone at the Miami-Dade Department of Emergency Resource Management (DERM), which had been told about a possible dumpsite in northern Miami-Dade County. DERM was too busy to handle the call. Could she go out there?

Porthouse left her small office in the Florida Marine Patrol headquarters building in Port Everglades (an office bedecked with photographs of her fishing, sailing, snorkeling, and squeezing off rounds from her standard-issue 9mm Beretta side arm) and climbed into her Ford F-150 white pickup and drove southwest, to the border of the Everglades. There, she parked the truck and stepped into "the most disgusting thing I think I've ever seen."

For someone in Porthouse's position, that's saying something. Anytime an abandoned metal drum, or any other kind of container that may harbor hazardous materials, is reported to authorities in South Florida, chances are good that Porthouse will be the first on the scene. In four years on the job she's learned to be ready for anything. "I've seen drums filled with methyl-ethyl death," she says, "and I've seen drums filled with concentrated orange juice -- you just never know."

Not only was there a plethora of abandoned drums littering this gravel access road to a rock quarry off Okeechobee Road, but there were also "goat hides, guinea hens, rabbits, a dead cow, a dead dog, a pile of ducks, and maggots. Thousands and thousands of maggots. It was just... gross."

Porthouse could tell that the access road, just southwest of the intersection of I-75 and the Florida Turnpike extension in Miami-Dade County, "had become a common dumping ground." The ditches were lined with buckets and trays of used fuel oil, a sign that truck drivers knew the spot. Porthouse thought the dead animals were possibly the remains of Santeria sacrifices.

Now it was time to clean up the mess. In this case, however, the mess was more than Porthouse could handle alone. When dealing with drums filled with unknown chemicals, one doesn't just load them up and haul them to the nearest high-temperature incinerator, their typical destination. "When you have a flammable chemical in a drum with only a quarter headspace -- that is, when the drum's three-quarters full -- you can have vapor building up to such intense pressure that what you're really dealing with is an unexploded bomb," she explains. "I've seen them explode."

And that appeared to be the situation. One of the drums was so swollen and distended that a special backhoe had to be called in with a non-sparking copper spike and a heavy metal shield to protect the operator. The spike is used to punch a hole in the drum, relieving the pressure and reducing the chances of an explosion.

Still, the danger was there. Most of the drums contained (as Porthouse later learned) used industrial solvents such as toluene mixed with heavy metals such as cadmium, chromium, and lead. "This stuff had a flashpoint of less than 70 degrees, meaning any kind of spark at normal temperatures would have set it off," Porthouse says. Breathing the gases in concentrated form could have easily caused sickness or death. This time Porthouse and the crew of environmental contractors she was supervising were lucky; the drum was punctured without a spark or a bang.

As the cleanup proceeded, so did the detective work. The other facet to Porthouse's job is to track drums to their source. First, the entire dumpsite, as well as each individual drum, was photographed from different angles. A detailed record was created listing every mark and notation on every drum. Soil samples were taken to a depth of six feet. The contents of every abandoned drum on the site were sampled, and the samples were sent to a laboratory in Tallahassee to be tested.

Porthouse didn't have much hope for success. Normally, sleuthing of this sort is a fruitless venture. Less than ten percent of abandoned-drum investigations result in criminal charges, mostly because it's difficult to prove that a particular person or company ordered a particular drum to be dumped, according to BER environmental specialist Kyle Boudreaux. Steel drums are used and reused in various industries, and to prove that a drum came from a specific business is next to impossible.

"In other places, like Detroit, you've got major industry," says Joe Stilwell, director of DERM. "Here in South Florida, you've got thousands of small businesses, many of them tiny mom-and-pop operations, and many of them run on a shoestring,"

Even so, when Porthouse comes across a particularly nasty site, she always tries to trace its ownership with help from the DEP's Office of Investigations. And sometimes they get a break.

This was one of those times.
"Basically, we got lucky," says Gilbert. "We found some shipping labels on the drums, and we were able to trace them back to an address in Hialeah. That address turned out to belong to an empty warehouse, so we had a talk with the property owner. He told us a fly-by-night company by the name of ARSCO International had recently abandoned its lease and moved out suddenly, leaving behind a mess. He admitted that the mess included some drums and said he'd hired a guy to clean up the space and haul away the trash."

In March 1997 Gilbert tracked down this man -- a man he'll refer to only as "Henry" -- and began asking questions. Henry turned around and pointed his finger at the landlord.

"Yeah, [Henry] had been hired to clean out the warehouse, but he said there'd been another truck -- he remembered it was yellow; it looked like a Ryder truck -- and he remembered it hanging around one day while he was working, loading up something. He didn't pay too much attention," says Gilbert.

One thing was obvious: Somebody, either Henry or the landlord, was lying. The question was who. "At this point, one and one just weren't adding up to two," Gilbert recalls. "Basically we had the owner of the property telling us one thing and this guy Henry telling us another thing."

It's at this point that environmental criminal investigations often break down, local prosecutors say. The reason? It's not enough to simply establish a connection between an abandoned drum and a place of business. "It's not an actual crime until we determine intent, motive, capability, opportunity -- all the elements necessary to make a viable criminal case," Gilbert explains.

Palm Beach County prosecutor Darren Shull recalls a case in which sheriff's deputies came across roofing debris that had been dumped illegally. "Searching through the debris, they found a pizza box which had an address on it," Shull says. "When they went to that address, the deputies noticed that the house had a new roof. So they asked the owner of the house who had done his roofing job. Eventually, they backtracked to the guy who'd been driving the truck."

Instead of asking the driver whether he knew anything about the debris, they simply told him they'd found the mess and he needed to clean it up. But they didn't mention the location of the dumpsite. The deputies then waited to see if the man would drive to the right dumpsite, which he promptly did -- thus providing proof that, at the very least, he had knowledge of the illegal dumping. But the deputies waited until the driver had reloaded the debris before arresting him. They didn't want the state to have to pay for the cleanup.

In his case Gilbert took a similar approach with his main suspect. As lead investigator, he made a tactical decision to make nice with Henry, while surreptitiously checking him out. It was a decision that would later prove controversial. "We decided to try to build a rapport with him," Gilbert says, "because we didn't have any solid evidence to connect him with the drums." (The landlord was charged with transporting hazardous waste, but the case was settled without adjudication; the landlord ended up paying a fine of $15,500.)

For Henry, the friendly arrangement was a godsend. He was already on probation for a theft conviction, and an arrest for illegal dumping, a felony, could have put him in prison for five years. Over the next few weeks, Henry deluged Gilbert and Shoemaker with phone calls: Did they want to be lead to a truckload of stolen frozen foods? How about power tools? Sports equipment? Tires? Medical equipment? But none of it panned out.

"Basically, he's a con man," says Shoemaker. "Any officer with four or five years experience, he's going to run across guys like Henry. He wants to talk, so you say, 'OK, we'll talk,' and he just keeps talking. Now if you have the patience to sift through the dregs, a lot of times you'll find a useful nugget. And that's what we did."

That nugget appeared on April 22, 1997, when Henry told Gilbert he'd just been contacted by a company that wanted to hire him for a dumping job involving some kind of poison. Was he interested?

Tell me more, was Gilbert's reply.

Manuel J. Rojas, co-owner of a Miami outfit known as County Line Moving and Storage, wanted Henry to remove debris from the company's warehouse. Henry told Gilbert he'd done jobs for County Line in the past; but this time, as he and the owner were discussing a fee, Rojas suddenly asked whether Henry could "dispose of about 30 drums containing various chemicals that would be very costly to dispose of legally," according to court documents. When Henry replied that he knew someone who might be interested in the job, Rojas "said he did not care if he dumped the drums into the ocean; he just wanted to get rid of them."

It took Gilbert and fellow DEP investigator Tim Hardee less than a day to arrange the sting. Later that same April afternoon, Hardee met Henry near the warehouse and wired him with an audio cassette recorder hidden in a cell phone case. Henry went to the warehouse and met again with Rojas, a resident of Weston.

The meeting almost ended before it began, when Henry was patted down by a Rojas employee who, fortunately for Henry and Gilbert, overlooked the cell phone case. The meeting went forward as planned.

Later, after listening to the tape, Gilbert and Hardee knew they had something hot. On the tape, Rojas acknowledges that he had contacted DERM and a fire department to find out how much it would cost to legally dispose of the drums. Rojas didn't mention the actual cost at the meeting, and DERM officials say they don't have a record of the phone call. But, for comparison's sake, the BER later spent more than $50,000 processing and disposing of the 37 drums taken from the County Line location.

Henry told Rojas that his friend wasn't interested in disposing of anything that might be flammable. But, he added, he "knew a gringo" who would do the job. A meeting was set up for the following day.

Gilbert already had his "gringo" picked out: Phil Shoemaker, a friend who worked in the Resource Protection Unit of the Florida Marine Patrol, a branch of the DLE. The resource protection unit is more concerned with poachers than polluters, but Shoemaker seemed like the perfect choice. Why? "I looked like your basic dirtbag," answers Shoemaker. With a long, bushy ponytail hanging past his shoulders and an even bushier beard spilling over the collar of his shirt, "I could have gone outside and sat down on the curb at NW 75th Street and I-95, and I'd have fit right in," he says. "You'd have never known the difference."

The next day Henry brought Shoemaker to the warehouse, where he introduced the undercover enviro-cop as "Morris," a man with a truck and an interest in making money. After a brief excursion to the warehouse yard to show him the drums in question, Rojas brought Morris into the office of Rojas' father and business partner, Manuel E. Rojas. As Shoemaker recalls it, there was absolutely no chitchat involved. "It just became very apparent, very quickly, that the only thing that mattered to them was money," he says. "This was pure economics. They didn't care about anything else."

Shoemaker led off with a price of $15 for every drum that didn't have toxic material, and $25 for every drum that did. Because some of the drums were clearly marked "toxic," he planned on charging $25 per drum for the whole bunch. Rojas Jr. said that because some of the drums contained only water (which was true, as it turned out), he shouldn't have to pay the surcharge on every drum. But Shoemaker didn't budge. "I told him that my price for taking every one of those drums out into the Everglades and dumping them where nobody would ever find them was $25 per drum," he recalls.

So Rojas Jr. got out a calculator and came up with a total charge of $750, 30 drums at $25 per drum. Shoemaker agreed, and -- just to make sure -- again explained to Rojas Jr. that the drums were going straight into the Everglades. "[Rojas Jr.] lived out there [in Weston] and really didn't care where he dumped them," Gilbert later reported. "If questioned later about the drums, he would say he came to work one day and the drums were gone. If anything further came of it, he could just fire his father, and then nothing could be done to him about the drums." Business concluded, and the men shook hands.

The next day, Shoemaker and Henry returned with a rental truck and loaded up the drums as promised. Because of the noxious odor, and for safety's sake, the two men donned surgical masks and rubber gloves. About halfway through the job, a man Shoemaker had never seen before drove up in a pickup truck and told the forklift operator to get himself a surgical mask too. "That stuff's poison! It'll kill you!" he shouted. It was just about then that the contents of one of the drums sloshed over Shoemaker's arms.

The next few weeks were taken up with field-processing and lab work. The processing -- shooting photographs, writing detailed descriptions, reading shipping labels, establishing a chain of custody -- took place at a temporary field center set up at the Florida Marine Patrol's Port Everglades headquarters. The work was supervised by Cathy Porthouse, who was waiting for the arrival of the Ryder truck immediately after Shoemaker drove off the warehouse lot.

Content samples were sent for testing to the Tallahassee lab of the national environmental contractor Laidlaw Environmental Services, Inc. On May 20, 1997, the results came back: Of the 37 drums collected, nine had been found to contain materials defined by the federal Environmental Protection Agency as hazardous. The more prominent chemicals included toluene, ethyl benzene, acetone, methyl ethyl ketone, and heavy naphtha. Transporting hazardous materials without a license is a second-degree felony.

As the lab work proceeded, the prosecution seemed to be moving forward as well. A week after the sting, Gilbert met with Miami-Dade prosecutor Gary Winston, who "reviewed the case and advised that his office would prosecute the felony case," according to court records. Then, on June 18, 1997, Gilbert sat down with Winston again. In a memorandum of the meeting, Gilbert wrote that an affidavit in support of a warrant for arrest had been filed, listing four felony charges: Knowingly disposing of hazardous waste at a place other than a hazardous waste facility; causing hazardous waste to be transported without a manifest; knowingly failing to file an application, or record, when disposing of a hazardous waste; and causing and authorizing an imminent hazard to occur.

But the case never went to court. After six months no one was arrested, and no one was arraigned. Winston says he conveyed a plea-bargain offer to the Rojases' attorneys: a felony conviction and an $80,000 fine. The Rojases' attorneys suggested a $25,000 fine instead. But Winston never followed up to this response.

DEP officials were dumbfounded. "When someone doesn't go forward on a case, you like to know why," says Bill Keenan, BER director. "Our people were angry. We felt we had a solid case."

Nevertheless, the case sat idle for the next six months. So Gilbert and Shoemaker made contacts with federal investigators to sound out the possibility of presenting the case to the U.S. Attorney's Office. On December 18, 1997, Gilbert sat down with U.S. Attorney Diane Patrick, who "expressed interest in prosecuting the case for the Federal Government," Gilbert later reported. The case was alive again.

At 6:15 on the morning of August 3, 1998, Gilbert, Shoemaker, and several other state and federal agents knocked on the front door of Manuel E. Rojas' opulent house in Miami. In their hands they had an arrest warrant. From there the agents drove north to Weston, where they arrested Manuel J. Rojas. Both father and son were booked and held at the Federal Detention Center in Miami.

Four months later the elder Rojas, along with his corporation, pleaded guilty to federal charges of conspiracy and violation of federal hazardous-waste laws. On February 23 they were sentenced to four years of probation and fined $153,048 -- $100,000 as punitive damages, and the remainder as restitution to the DEP for the cleanup.

What went wrong? If the feds were able to secure a tough plea bargain, why did the state case sink so quickly?

Punishment for an environmental violation is usually a fine levied by a county, state, or federal regulatory agency. This makes sense, in a way, because businesses pollute for financial reasons. It's a simple cost-benefit calculation: Legally disposing of even a small amount of hazardous material can cost tens of thousands of dollars. Because the incentive is financial, the penalty should also be financial.

But the question for environmental investigators and prosecutors becomes: When should a polluting case be dealt with criminally instead of civilly? Opinions differ. Especially between those responsible for investigating environmental crimes and those prosecuting them.

"Is it a lesser crime if you kill one person rather than 50 people?" asks Robin Greenwald, an attorney with the Environmental Crimes Section of the U.S. Department of Justice. "That is a question that's frequently asked of environmental prosecutors, and the answer is, 'No, they're just different crimes. They're both important.'"

But in the real world, choices have to be made. "You have to have a very solid case to proceed criminally," says Ed Walsh, the assistant state attorney in charge of environmental prosecutions for Broward County. "Consider just one aspect of a case: the lab work. Was the lab certified to conduct this type of testing? Was the equipment calibrated correctly? When? And can you prove it? Who was the lab technician? What were his or her qualifications? Was the chain of custody followed? Can you prove it? You remember the O.J. trial, right? A good defense attorney can tear your case to shreds if you don't have every single detail nailed down."

Another area of controversy concerns a practice that Walsh and others refer to as "sending a bad-guy letter." "Those are the kind of letters in which the prosecutor sends a letter out to the target, basically saying, 'We have reason to believe you're involved in a crime, and we'd like you to come in and talk to us about it,'" says Joe Stilwell, director of DERM. Such letters have their uses, especially in courts with heavy caseloads, but "if I have a very well investigated, extremely strong case against a [polluter], that might not be a good letter to send," says Stilwell.

But those who, like Porthouse, have to deal with the dangerous messes others leave behind oppose treating pollution cases as regulatory matters. "Is it an economic matter when you have a drum leaking heavy metals into a mangrove swamp or a manatee breeding area? You tell me," she says. "Is it an economic matter when a child goes out and climbs onto an abandoned drum filled with hazardous material? Or falls in and dies? You tell me."

Ultimately those decisions aren't the investigators' calls; they come under the heading of prosecutorial discretion. Winston's own opinion is that Gilbert had his priorities backwards. Henry had a criminal record (the Rojases didn't), and Winston wanted him behind bars. "I thought it was patently unfair to go after Rojas by cutting a deal with [Henry]," he explains. "I told them, 'First you bring me [Henry], then we'll talk about the Rojases."

Gilbert argues that a deal was never made with Henry. Although he was used to help build a case against the Rojases, Henry was never needed to make that case in court. In fact, by the time federal prosecutors took over the Rojas case, Henry had disappeared. Gilbert speculates that Henry sensed that he had gone from being the tool of the DEP to its target. "We were able to connect him with the renting of a Ryder truck on the same day that the drums were purportedly removed from the Hialeah warehouse," Gilbert admits. (Henry is currently being sought on a warrant related to that incident.)

Winston says Gilbert also violated a fundamental rule of police work: Don't surprise the prosecutor. "Was I surprised [by this case]? How about all the time," he says. "They went out and did all this without me knowing about it, and I had to react to it. I wasn't brought in until after the sting."

For both Winston and the investigators, yet another factor led to the abandonment of the case. During plea negotiations, investigators and the BER are supposed to take part in the process, mainly because any fines agreed upon have to cover costs of cleaning up a site. When Winston told the investigators about the $25,000 offer from the Rojases' attorneys, they balked, saying it would cover only half the costs. Next thing they knew, Winston had dropped the case.

Winston would not admit that the failed plea agreement had anything to do with his decision. But at least some of the investigators feel that the very nature of environmental investigations creates conflicts between them and prosecutors in general.

"Some people try to take a simplistic view," says Stilwell. "They say that the criminal process should not cross over into the economic arena, in the same way that a murderer's punishment doesn't necessarily go into the economic consequences of the crime.

"But another view is that [dumping] is an economic crime to begin with, and so those damage considerations need to be looked at in terms of restitution to the public. And, anyway, why shouldn't my opinion matter? The public has entrusted me with a particular job to do, to enforce the environmental regulations."

But that can make it difficult for prosecutors who, in dealing with other types of crimes, don't have to answer to the cops when constructing plea arrangements. "It is an unusual situation," Winston admits. "Sometimes it's frustrating."

At any rate, after Winston declined to prosecute the case, Gilbert didn't hesitate to present it to federal prosecutors.

On March 4, more than two years after the original sting operation had taken place, Gilbert's work finally paid off with a letter from federal prosecutor Diane Patrick. "Dear Guy," the letter began. "This is to advise that we are proceeding to close our file on this case in light of the defendant's sentencing on February 23, 1999.... I also received on this date a check in the amount of $10,000 as payment towards the court-ordered restitution.... Many thanks to you and Phillip Shoemaker for your outstanding efforts in this case. I'm so glad we all had an opportunity to work together, and I look forward to many more such occasions!"

And last month Terry Edwards, DEP regional administrator, sent this e-mail to his emergency response team: "Looks like the good guys finally won one. Way to go, everybody."

At this late date, with his prosecution secured, Gilbert is careful to avoid direct criticism of Winston. "I learned a long time ago that you just have to concentrate on how you feel about your own job. You can't rely on anybody else," he says.

But perhaps the person with the most important stake in seeing the case prosecuted is Phillip Shoemaker, the man who was sloshed with the toxins when loading the drums. As soon as he got back to the BER headquarters, he was stripped and decontaminated with chemical soap, after which a blood test showed no signs of ingestion.

Still, at the insistence of his boss, the plea agreement contains a provision that, if Shoemaker should ever succumb to any kind of sickness that can be traced to his loading of the poisonous drums, then the Rojases have to pay his medical bills. All of them. For life.

Contact Paul Belden at his e-mail address:


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