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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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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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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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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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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