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Enforcement Options Enforcement Options and Case Studiesand Case Studies

Enforcement Options Enforcement Options and Case Studiesand Case Studies

Lisa BrownLisa BrownAssistant Counsel for Enforcement Assistant Counsel for Enforcement

Cal/EPACal/EPACUPA/UST ConferenceCUPA/UST Conference

February 8, 2006February 8, 2006

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Topics Topics

Types of Enforcement Actions Choosing an Enforcement Action Case Studies

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You have completed your inspection….

Found several instances of non-compliance….

Written a well-documented report….

Submitted it to your supervisor………

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Types of Enforcement ActionsTypes of Enforcement Actions

Enforcement Agency only

Enforcement Agency& Court System

Criminal Civil

AdministrativeInformal

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Informal ActionsInformal Actions

Oral or written warnings Noncompliance checked on the inspection report Notices to Comply (minor violations)

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CUPA Administrative Enforcement 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”

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Civil ActionsCivil Actions

Monetary penalties Injunctions (require or prohibit action) Filed through court system (City Attorney,

District Attorney, Attorney General) Standard of proof – “Preponderance of

Evidence”

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Criminal ActionsCriminal ActionsMay 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”

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Which Option(s) to Choose?Which Option(s) to Choose?

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

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Civil and/or Criminal?Civil and/or Criminal?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

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Administrative, Civil and CriminalAdministrative, Civil and Criminal

It is possible!

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Statutes of LimitationsStatutes of Limitations

Misdemeanor - 1 year from date of the offense to filing the complaint

Felony - 3 years

Note federal criminal statute is 5 years

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Statutes of LimitationsStatutes of LimitationsCivil –

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

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So Who Decides What’s a Crime?So Who Decides What’s a Crime?

PUBLIC PROSECUTERS

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Public ProsecutorsPublic 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 Code 26500-26543

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Public ProsecutorsPublic Prosecutors

Determining whether to institute criminal proceedings is discretionary.

Authority to investigate the facts is unlimited.

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Common Enviro CrimesCommon Enviro Crimes

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

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(More) Examples of Criminal Cases (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

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Where to Get HelpWhere to Get Help

Will the DA take your case? Where can I get enforcement training? Where can I find out what agencies are doing?

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Environmental EnforcementTask Forces

Environmental EnforcementTask Forces

A coordinated approach to environmental enforcement between federal, state and local entities usually involving periodic meetings

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What Cases to Take to Your Task Force?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

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How to ParticipateHow to Participate

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Enforcement PrincipalsEnforcement 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

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Enforcement is a

Public Process

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.