Jerry Kopel


It was just a battle over seven numbers (26-15-310), but it turned into a nasty pissing match ten years ago between Attorney General Duane Woodard, and Tom Vernon, head of the Dept. of Health under Gov. Roy Romer.

It began when a company called Jet Industries, owned by Laverne Everett Harris in Jefferson County had a fire on its premises. The company did piece-work fabrication, coating and painting metal parts for car repair. Staff from the Hazardous Waste Management Division of the Health Dept. investigated and determined the company had committed eight violations of the hazardous waste law. It ordered specific corrections.

Meanwhile, Jefferson County District Attorney Don Mielke brought criminal charges against Harris under CRS 26-15-310, and Harris sought dismissal of charges in the county court claiming Mielke had no jurisdiction to proceed. The county court sided with Mielke, but on appeal, the Jefferson County District Court on Aug. 30, 1989, ruled in favor of Harris.

The court decided that (1) only the attorney general was empowered to bring a prosecution under the hazardous waste law and (2) then only after prior referral by the Dept. of Health (under CRS 26-15-308) to the attorney general regarding crime in CRS 26-15-310.

While the appeal to the Court of Appeals was pending, Mielke and Woodard decided to seek a change in the law. In 1990, I carried the measure, HB 1066 in the House with Sen. Jack Fenlon (R) Aurora, as Senate sponsor. We were "spear carriers" only. The gathering of documentation, committee witnesses, and lobbying efforts were done by Woodard and Mielke.

Too much time and effort was spent on whether or not the Health Dept. was doing its job in referring criminal cases to the attorney general (AG) as opposed to arguing whether the legislature could or should delegate authority to the executive branch to determine whether the AG or DA could prosecute particular criminal acts. The Jefferson District Court said the legislature could, and did, limit prosecution authority.

On the issue of actual referrals, after the smoke cleared, Dave Shelton, director of the waste management division, told Westword "during the past five years health department regulators have referred 35 cases for possible criminal prosecutions to federal environmental authorities, who have more investigative resources than the state attorney general."

Brian Weber, Colorado Springs Gazette Telegraph reporter, quoted testimony by Shelton defending the lack of felony prosecutions by allegedly saying "the Dept. of Health does not think criminally." Later on, Shelton by letter claimed two referrals to the AG in 1986, but the AG's office continued to claim no referrals were made.

HB 1066, which would have given the AG and DAs independent authority to charge hazardous waste criminal violations, was sent to Local Government with a second assignment to Finance Committee.

On one side in Local Government was the Dept. of Health siding with the Colorado Assn. of Commerce and Industry vs. the AG and District Attorneys Assn. The bill, which passed 6 to 5, went to Finance Committee, but the bill was already dead. Martin-Mariettta and Eastman-Kodak officials had placed calls to committee members backing up CACI lobbyists. The bill died on a straight party-line vote 7 to 4.

Legislative watchers found the silence from Gov. Romer in this fight deafening. A word from him would have kept the Health Dept. from siding with CACI on the issue. Once the bill was dead, Romer issued a "can't we all just get along" statement. The AG had become a Democrat and was supposedly on the same page as Romer. DA Mielke wrote to Romer "(This) the only place in the statutes where a bureaucrat is involved in the decision to prosecute a criminal."

Woodard stated "It is unusual and inappropriate to condition criminal prosecution on referral from an executive branch agency..." In a Denver Post interview he said "The health dept. would rather handle a matter through the civil permit process than the criminal route but a civil fine is nothing more than a slap on the wrists paid for by corporate profits.

"I'm convinced it takes criminal penalties with the potential of people serving time in jail or prison to get the attention of a polluter."

According to information furnished me by the AG's office during the debates, the Hazardous Waste Management program was adopted in Colorado and all the other states in order to allow EPA to cede local jurisdiction, but the language in our statutes regarding referral or veto power in the Dept. of Health was NOT required by EPA. According to the AG's office, only one other state allowed their health dept. to shield polluters from prosecution.

In 1991, the Colorado Court of Appeals approved the district court decision, limiting criminal prosecutions to the attorney general and not the district attorney, and giving exclusive enforcement authority to the Dept. of Health. "If the department chooses to initiate criminal proceedings under the Act, it may ask the attorney general to prosecute."

It would appear from the 1991 decision that the legislature could rewrite a number of the regulatory licensing laws, giving boards sole decision making authority as to whether or not the DA or AG can bring a criminal action. Let's hope it never happens.

U.S. Sen. Wayne Allard has introduced the "Ombudsman Reauthorization Act of 1999", to keep EPA from wiping out EPA's national ombudsman. Allard would make the ombudsman independent of the EPA, give him his own budget and have him report directly to the Congress.

As long as Allard is amending the EPA statute, how about a few words saying any state executive branch ceded authority by the EPA shall NOT have veto or referral rights against criminal prosecution by the Attorney General.

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Copyright 2015 Jerry Kopel & David Kopel