1999 CPEO Brownfields List Archive

Date: Thu, 5 Aug 1999 10:03:20 -0700 (PDT)
Reply: cpeo-brownfields
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

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