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

[Ignacio Dayrit <idayrit@ci.emeryville.ca.us>]

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.
> 
> 
> 
>