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Enforcement Options and Case Studies

Enforcement Options and Case Studies. Lisa Brown Assistant Counsel for Enforcement Cal/EPA CUPA/UST Conference February 8, 2006. Topics . Types of Enforcement Actions Choosing an Enforcement Action Case Studies. You have completed your inspection….

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Enforcement Options and Case Studies

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  1. Enforcement Options and Case Studies Lisa Brown Assistant Counsel for Enforcement Cal/EPA CUPA/UST Conference February 8, 2006

  2. Topics • Types of Enforcement Actions • Choosing an Enforcement Action • Case Studies

  3. You have completed your inspection…. Found several instances of non-compliance…. Written a well-documented report…. Submitted it to your supervisor……… Now What?

  4. Types of Enforcement Actions Criminal Civil Administrative Informal Enforcement Agency & Court System Enforcement Agency only

  5. Informal Actions • Oral or written warnings • Noncompliance checked on the inspection report • Notices to Comply (minor violations)

  6. CUPA Administrative Enforcement • Administrative Enforcement Orders (penalties, clean up or other orders) • Denial, suspension, revocation of permits • Can be contested at a hearing • Standard of proof – “Preponderance of Evidence”

  7. Civil Actions • Monetary penalties • Injunctions (require or prohibit action) • Filed through court system (City Attorney, District Attorney, Attorney General) • Standard of proof – “Preponderance of Evidence”

  8. Criminal Actions • May result in fines, imprisonment and/or probation • Misdemeanors (max. one year jail) • Felonies (max. more than one year in prison) • Filed through court system (City Attorney, D.A., A.G., U.S. Attorney) • Standard of proof – “Beyond a Reasonable Doubt”

  9. Civil Injunctive relief needed Multi-agency issues (i.e. CUPA and non CUPA) Previous violations of administrative orders Prosecutor available Repeat violator Administrative Violations with one agency only First time violator Which Option(s) to Choose?

  10. Civil Injunctive relief needed to obtain compliance or remediation Multi-jurisdictional issues (cross-media) Previous violations of administrative orders Statute of limitations Criminal Civil or administrative remedies inadequate Maximum deterrence needed Sufficient evidence to convict beyond a reasonable doubt Civil and/or Criminal?

  11. Administrative, Civil and Criminal It is possible!

  12. Statutes of Limitations • Misdemeanor - 1 year from date of the offense to filing the complaint • Felony - 3 years • Note federal criminal statute is 5 years

  13. Statutes of Limitations • Civil – • 1 year CCP § 349 (HMMP & Cal/ARP) • 4 years B&P § 17208 • 5 years after the discovery by the agency (Haz waste, UST) CCP § 338.1 • Administrative – use the above rules

  14. So Who Decides What’s a Crime? PUBLIC PROSECUTERS

  15. Public Prosecutors "The district attorney is the public prosecutor, except as otherwise provided by law… "The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses." Gov't Code26500-26543

  16. Public Prosecutors • Determining whether to institute criminal proceedings is discretionary. • Authority to investigate the facts is unlimited.

  17. Illegal storage/disposal/transportation of hazardous waste Illegal discharge of anything other than rainwater to storm drains or waterways Asbestos rip & tears Failure to report release Operation without a permit Fraud Common Enviro Crimes

  18. (More) Examples of Criminal Cases • Lying, cheating, stealing • Flagrant, deliberate, repeated violations • Deception, cover up, conspiracy • Willingness to pay penalties with continued noncompliance • Institutional cost avoidance (failure to make upgrades, failure to maintain equipment) • Tampering, threats/intimidation, evidence destruction

  19. Where to Get Help • Will the DA take your case? • Where can I get enforcement training? • Where can I find out what agencies are doing?

  20. Environmental EnforcementTask Forces A coordinated approach to environmental enforcement between federal, state and local entities usually involving periodic meetings

  21. What Cases to Take to Your Task Force? • Intentional, repeat, recalcitrant violations. • Pattern and practice of non-compliant behavior • Potential or actual substantial harm to public or environment • Threaten integrity of the effectiveness of program goals (falsification and/or lack of record-keeping) • Violations in multiple programs • Cases where you need help

  22. How to Participate www.calepa.ca.gov/programs/taskforce/ DTSCContact.htm

  23. Enforcement Principals • Enforcement should be swift, predicable and certain • Enforcement should be consistent among the CUPA programs • Every violation should be noted and recorded • Escalating enforcement for repeat violations

  24. Enforcement is a Public Process • Final documents are public records. • Publicize all enforcement actions. • Never negotiate publicity. • Never agree to secret or off the record settlements. • There is no deterrence without public information.

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