From: | Ignacio Dayrit <idayrit@ci.emeryville.ca.us> |
Date: | Thu, 12 Aug 1999 12:32:03 -0700 (PDT) |
Reply: | cpeo-brownfields |
Subject: | RE: "INSTITUTIONAL CONTROLS: THE NEXT FRONTIER" -Reply |
The City of Sacramento, CA has incorporated the environmental status of properties in the zoning designations (in one part of the city). Oakland and Emeryville use a different approach tied to their GIS systems. Though not identical, both systems record the allowable use(s) based on approvals of regulatory agencies. > -----Original Message----- > From: Emery Graham [SMTP:"egraham"@ci.wilmington.de.us] > Sent: Wednesday, August 11, 1999 5:00 PM > To: cpeo-brownfields@igc.org > Subject: Re: "INSTITUTIONAL CONTROLS: THE NEXT FRONTIER" -Reply > > 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. > > > > | |
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