2. 1 Enforcement Options and Case Studies Lisa Brown Assistant Counsel for Enforcement Cal/EPA CUPA/UST Conference February 8, 2006 February 8, 2006

3. 2 Topics  Types of Enforcement Actions  Choosing an Enforcement Action  Case Studies

4. 3 You have completed your inspection…. Found several instances of non-compliance…. Written a well-documented report…. Submitted it to your supervisor………

5. 4 Types of Enforcement Actions Enforcement Agency only Enforcement Agency & Court System Criminal Civil Administrative Informal

6. 5 Informal Actions  Oral or written warnings  Noncompliance checked on the inspection report  Notices to Comply (minor violations)

7. 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”

8. 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”

9. 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”

10. 9 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

11. 10 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

12. 11 Administrative, Civil and Criminal It is possible!

13. 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

14. 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

15. 14 So Who Decides What’s a Crime? PUBLIC PROSECUTERS

16. 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 Code 26500-26543

17. 16 Public Prosecutors  Determining whether to institute criminal proceedings is discretionary.  Authority to investigate the facts is unlimited.

18. 17 Common 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

19. 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

20. 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?

21. 20 Environmental Enforcement Task Forces A coordinated approach to environmental enforcement between federal, state and local entities usually involving periodic meetings

22. 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

23. 22 How to Participate

24. 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

25. 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.