Re: "INSTITUTIONAL CONTROLS: THE NEXT FRONTIER" -Reply

[Emery Graham <"egraham"@ci.wilmington.de.us>]

Charles,
I was thinking of institutional controls in another sense; the idea of land
use
codes that have the force of law at the local level. When you think of the
laws
that are enforced by local licenses and inspections and code enforcement
offices,
the principles of use limitations as they relate to legal uses of land come
into
mind, e.g., trash on lots, abandoned cars, etc. In our local code it is
illegal to
site dangers to life, health, and safety on land within the city limits.
There are
also nuisnace ordinaces related to land. When viewed from this perspective
a local
community can impose land use controls that provide criminal penalties for
failure
to maintain privately owned land in decent, safe, and sanitary condition.
This is
very traditional practice in cities across this country. Criminal penalties
and
fines do come into play.

It only stands to reason that EPA had this type of solution in mind when they
initiated the Brownfields initiatives. What other tools did local
communites have
to protect their interests? Code enforcement and public health officers
were in
place or there was plenty of precedent for their use at the local level.
EPA made
environmental pollution and its remediation a local issue. Why wouldn't
you, they,
or anyone else not expect local governments to handle these issues in their
customary manner?

You have to remember that local municipalities have been enforcing property
related laws for years and taking private property at sheriff sale for owners
failing to pay related fees, taxes, and upkeep costs. Why not impose the same
sanctions on owners of hazardous waste sites? The logic is different; the
results
the same?

CHARLES PATRIZIA wrote:

> 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.