|From:||CHARLES PATRIZIA <CAPATRIZIA@phjw.com>|
|Date:||Thu, 5 Aug 1999 10:03:20 -0700 (PDT)|
|Subject:||Re: "INSTITUTIONAL CONTROLS: THE NEXT FRONTIER" -Reply|
Whoa, Emery -- Institutional controls are effectively contracts. The remedies for contracts are quite clear, and in general, there are no criminal penalties for breaches of contract. There are criminal penalties for conduct that could also be a breach of contract, e.g., fraud. If an property owner or operator, by his/her conduct creates a situation that is a violation for which criminal penalties exist, then the owner/operator is subject to the criminal penalties. Reckless endangerment can be subject to such penalties. There certainly are criminal penalties under the Clean Air Act, Clean Water Act, RCRA, and state statutes for environmental crimes. But not every violation of an institutional control rises to that level, and criminalizing all bad conduct is lousy public policy. One reason why the environmental statutes have civil enforcement provisions and allow citizen suits is precisely because Congress recognized that relying exclusively on criminal enforcement would not be appropriate -- it's easier to get civil judgments (after all, the burden of proof is less, the presumptions regarding interpretation of the provisions, intent, etc. are easier), and there are more potential litigants (District Attorneys and US attorneys after all do have other things to prosecute, as most of us remind them every time we get stopped for minor traffic offenses....). What would take to cure a violation of an institutional control -- how about an injunction? How about a civil penalty and an order to remediate? Those at least assure that the violation gets cured -- paying a criminal fine to the local treasury or sending a corporate official to jail doesn't cure the violation. >>> Emery Graham <"egraham"@ci.wilmington.de.us> 08/04/99 05:46pm >>> I don't understand why there shouldn't be stiff fines, jail terms, and penalties for failure to execute institutional control agreements. It seems that there is more than passing hesitance to use normal legal sanctions in situations where the life, health, and safety of the public is at risk. I find it very hard to discount the fact that the vast majority of the decision makers and writers on this topic tend not to be the same people who live close proximity to these hazardous waste sites. Why wouldn't we want this problem to be controlled by those government representatives with the closest ties to the location and to the people most likely to be effected? So let me ask this question. If you were living near a hazardous waste site that had been put back in use and institutional controls were put in place, what level of sanction, monitoring, and control would be satisfactory to you? Would you want your local government, your state government, or your federal government to be the enforcement agency? In this entire hazardous waste site debate there seems to be a point where we are not capable to posit an ideal situation and seemingly retreat from saying what our selfish opinions might be if we were personally confronted with the worse case scenario. The insights and perspectives that emerge from conscious thought about our "selfish" perspective is valuable information in the same sense as any other perspective of the situation is valuable information. It might be surprising to compare the level of concensus generated by "selfish" vs "scientific" perspectives.
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