Transcript Resolution of Non-Compliance - Calcupa

Enforcement Options
and Case Studies
Lisa Brown
Assistant Counsel for Enforcement
Cal/EPA
CUPA/UST Conference
February 8, 2006
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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 Actions
Criminal
Civil
Administrative
Informal
Enforcement Agency
& Court System
Enforcement Agency
only
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Informal Actions
 Oral or written warnings
 Noncompliance checked on the inspection report
 Notices to Comply (minor violations)
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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 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 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”
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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




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 Criminal
It is possible!
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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
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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
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So Who Decides
What’s a Crime?
PUBLIC PROSECUTERS
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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
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Public Prosecutors
 Determining whether to institute criminal
proceedings is discretionary.
 Authority to investigate the facts is unlimited.
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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
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(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 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 Enforcement
Task 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?
 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 Participate
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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
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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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