Week 16 - Enforcement PDF

Chapter 2, Enforcement and Liability Chapter 17, Environmental Management Systems and Environmental Law Why EMS? Occupational and Environmental Law (OEH 5262) course description: This course is designed to introduce students to the organizational and management principles that...

Chapter 2, Enforcement and Liability Chapter 17, Environmental Management Systems and Environmental Law Why EMS? Occupational and Environmental Law (OEH 5262) course description: This course is designed to introduce students to the organizational and management principles that underlie EHS management systems, programs and practices. EMSs may help when violations occur, or may be required as a result of a violation What is an EMS? An Environmental Management System (EMS) is a “framework that helps an organization achieve its environmental goals through consistent review, evaluation, and improvement of its environmental performance” Basic Process in an EMS Reviewing the organization's environmental goals Analyzing its environmental impacts and compliance obligations (or legal and other requirements) Setting environmental objectives and targets to reduce environmental impacts and ensure compliance Establishing programs to meet these objectives and targets Monitoring and measuring progress in achieving the objectives Ensuring employees' environmental awareness and competence Reviewing progress of the EMS and achieving improvements  Plan-Do-Check-Act Plan: Establish environmental goals and processes that are necessary to achieve results in conformity with the organization’s environmental policy Do: Carry out those processes and procedures Check: Monitor and measure the process to ensure that the organization’s environmental targets and objects are met Act: Take actions in order to continually improve the EMS Components Needed for an EMS (p. 1057-58) Top management leadership, participation, and policy setting Identifying environmental issues (or risks) and legal requirements Establishing objectives to successfully manage those issues and requirements in line with policy Creating programs and procedures that establish how, by whom, and when the objectives will be met Training people so that they know their roles and responsibilities in the system Monitoring, measuring and auditing to track performance and verify implementation Taking preventive and corrective action An Effective EMS: Decreases the likelihood that noncompliance will occur (but does not guarantee it) Increases the likelihood of early detection of noncompliance should it occur Enhances the opportunity for prevention, early mitigation, and corrective action May lead to more lenient enforcement responses by regulators should non-compliance occur Legal Liabilities Environmental civil liability is strict liability It does not take into consideration whether the responsible party knew about the law or regulation they violated It does not matter why they were non-compliant Standard of proof is based upon “a preponderance of evidence” Environmental criminal liability is triggered through some level of intent Criminal guilt must be established "beyond a reasonable doubt" Legal Liabilities If a civil defendant is found liable or agrees to a settlement, the result can be: a monetary penalty injunctive relief (actions required to correct the violation and come into compliance, e.g., install pollution control equipment), and/or additional actions taken to improve the environment (Supplemental Environmental Programs - SEPs) Legal Liabilities If a criminal defendant is convicted or pleads guilty, the result can be: a monetary fine restitution (reimbursing the government for the cost of cleanup or response, compensating for the harm caused by the violation, e.g., paying for medical testing for people exposed to asbestos) Incarceration EPA criminal enforcement https://www.youtube.com/watch?v=fAJlHxyapa0&t =6s Legal Liabilities Cleanup enforcement gets property cleaned up by: finding the companies or persons responsible for the contamination negotiating with them to perform the clean up themselves, or ordering them to perform the clean up, or to have them pay for the clean up performed by another party or EPA Statutory Defenses The CWA prohibits the discharge of pollutants from a point source to WOTUS unless the discharge is done in compliance with a permit issued by EPA or the state Permit shield – if the facility is in compliance with the permit, it cannot be cited CAA also provides a permit shield Statutory Defenses Defenses Against CERCLA An act of God An act of war An act or omission of a third party Someone else dumps something on your property Innocent Landholder Defense All appropriate inquiry Phase I and Phase II ESAs Enforcement Environmental violations can be enforced at the federal, state or local level Some violations can be enforced through administrative actions by a local, state or federal agency with the punishment being a monetary fine Other violations can be enforced via criminal or civil actions by the U.S. Department of Justice or a state’s attorney general office Many of the federal environmental statutes like the CWA and the CAA also allow citizens to file lawsuits in federal court to enforce these laws when the government has failed to do so Enforcement Begins with inspection to verify compliance with environmental regulations Could be routine, employee or citizen complaint, or random Could also be a part of a National Compliance Initiative EPA https://www.epa.gov/enforcement/national-compliance-initiative- stopping-aftermarket-defeat-devices-vehicles-and-engines https://www.epa.gov/enforcement/national-enforcement-and-compliance- initiatives OSHA National Emphasis Program: https://www.osha.gov/enforcement/directives/nep Engineered stone https://www.osha.gov/news/newsreleases/national/09252023 If an inspection identifies compliance deficiencies, a warning letter may be sent describing the findings The company should address each finding and voluntarily respond to the agency on how each finding was resolved Enforcement Notice of Violation (NOV) An NOV is a more formal enforcement action. An NOV typically signals that an administrative order is forthcoming The recipient of an NOV may wish to request a meeting with the agency to discuss the situation in an effort to avoid further administrative action. DEQ will bring their attorneys. Attorneys like to talk to attorneys Settlement Agreements Most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. Settlement agreements can include injunctive relief, fines, and/or supplemental environmental projects (SEPs) Injunctive Relief as Part of a Settlement Action “Injunctive relief” - a court order that prohibits an organization or an individual from taking a specific action. Conversely, an injunction may also require an entity to take a certain action. Injunctive Relief as Part of a Settlement Action https://www.epa.gov/sites/default/files/2018- 10/documents/emssettlementguidancetab8.pdf “EPA’s approach in all enforcement actions is to seek appropriate injunctive relief to return violators to compliance and minimize or eliminate the potential for repeat violations by addressing the root causes of noncompliance. Where EPA determines, taking into account a violator’s size, characteristics, and overall compliance obligations, that the root cause of a defendant’s or respondent’s violations is the absence of a systematic approach to identifying, understanding, and managing the regulated entity’s compliance with applicable environmental requirements, the appropriate injunctive relief should include an EMS with a compliance focus.” Settlement Agreements “As part of a settlement, an alleged violator may propose to undertake a project to provide tangible environmental or public health benefits to the affected community or environment, that is closely related to the violation being resolved, but goes beyond what is required under federal, state or local laws.” “The voluntary agreement to perform a Supplemental Environmental Project (SEP) is one factor that is considered in determining an appropriate settlement penalty, and may be the basis for a reduction in the final penalty.” https://www.epa.gov/enforcement/supplemental- environmental-projects-seps (read) Enforcement and Compliance History Online (ECHO) https://echo.epa.gov/ U.S. EPA Supplemental Environmental Projects Policy https://www.epa.gov/sites/default/files/2015- 04/documents/sepupdatedpolicy15.pdf “An EMS is more than a statement by the organization of its intentions and principles in relation to its overall environmental performance; it also provides a framework for action for the company to set and meet its environmental objectives and targets” EMSs are allowable as SEPs only for small businesses. For large businesses with multiple environmental requirements, EMSs are more appropriate as part of the injunctive relief sought for environmental violations. Case teams considering EMSs proposed as SEPs by a large business must seek prior approval Administrative Penalty Amounts Most Federal Statutes provided for penalty amounts of $25,000 per day per violation Each year, a Civil Monetary Penalty Inflation Adjustment is made and published 2024 https://www.federalregister.gov/documents/ 2024/02/12/2024-02829/civil-monetary- penalties-inflation-adjustments-for-2024 Appears to be cumulative/compounding Administrative Penalty Amounts Certain factors can affect the penalty amount imposed depending upon the relevant federal or state law being enforced: Ability to pay Any economic benefit gained as a result of the non-compliance Gravity of the offense Past compliance history Gravity Based Penalty Matrix Table on p. 94 Environmental Audits Environmental Audits Are a part of the EMS process, but can (and should) be performed regardless of whether a company has an EMS Difference between audit and inspection https://www.youtube.com/watch?v=McsGMle63Ys EPA Audit Protocols https://www.epa.gov/compliance/audit-protocols Environmental Audits Voluntary Disclosure: EPA Audit Policy https://www.epa.gov/compliance/epas-audit-policy Formerly called “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” To take advantage of these incentives, regulated entities must voluntarily discover, promptly disclose to EPA, expeditiously correct, and prevent recurrence of future environmental violations Voluntary Disclosure Significant Penalty Reduction https://www.epa.gov/compliance/epas-audit-policy#incentives 100% of the gravity-based penalties if all 9 conditions are present https://www.epa.gov/compliance/epas- audit-policy#conditions 75% of gravity-based penalties if the company did not have a systematic discovery process Legal Issues of Audits Internal documents that identify noncompliance are discoverable Enforcement Consent Agreement and Final Orders If agreement can be reached, the parties may submit a consent agreement to the court for consideration Must obtain a final order to be “final” If agreement cannot be reached, it goes to litigation with an administrative law judge See example Consent Order Citizen Suits The CWA, CAA, and RCRA all contain provisions for citizens to file suit when a facility is in violation of a water discharge permit if state or federal governments have not taken enforcement actions Here are the citizen suit provisions in the CWA: “any citizen may commence a civil action on his own behalf— against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation..” Citizen Suits Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. https://supreme.justia.com/cases/federal/us/528/167/ Laidlaw operated a wastewater treatment plant in South Carolina that held an NPDES permit. Laidlaw violated its permit limitations 489 times between 1987 and 1995 by discharging too much mercury. Friends of the Earth filed suit. The District Court found that Laidlaw had gained a total economic benefit of $1,092,581 as a result of its extended period of noncompliance with the mercury discharge limit in its permit. The court awarded $405,800 in civil penalties to the United States, who participated as amicus curiae in favor of the environmental groups. Amicus curiae is a legal term that refers to a person or organization that is not a party to a case but offers relevant information or arguments to the court. The term literally translates to "friend of the court" in Latin. Citizen Suits Can also sue EPA: https://www.epa.gov/ogc/notices-intent-sue-us- environmental-protection-agency-epa Wynnewood Refinery https://www.epa.gov/system/files/documents/2024-11/wynnewod- noi-103124.pdf Criminal Cases https://www.justice.gov/usao-cdca/pr/monsanto- agrees-plead-guilty-illegally-using-pesticide-corn- growing-fields-hawaii-and https://www.justice.gov/opa/pr/chief-executive- officer-pleads-guilty-submitting-hundreds-false- monitoring-reports https://www.justice.gov/usao-wdok/pr/oklahoma- city-business-owner-pleads-guilty-violating-clean-air- act-tampering-emissions https://abc7ny.com/asbestos-inspectors-new-york- city-inspections/3019161/  Other Legal Concerns Contractual Liability Scope of Work Fixed-Fee vs. Time/Materials Clarity of Language and “Meeting of the Minds” Differing Site Conditions http://www.mondaq.com/unitedstates/x/382544/real +estate/Differing+Site+Conditions+What+Are+They +And+Are+You+Protected Differing Site Conditions in Your Report Conditions reported are as of xx/xx/xxxx date  Insurance General Liability Insurance Breaking a window, damaging equipment Note: Always Check for “Pollution Exclusion” Professional Liability Insurance Often called Errors and Omissions policies To secure protection from litigation arising from professional activities  Insurance Types True Occurrence If an incident occurs during coverage, coverage is afforded even if claim made at a later time Hard to get Claims Made Claim must be made while policy is in force Coverage may end when the policy expires  Legal Concerns Indemnification Clause If you are the indemnified party, an indemnification clause is simply a promise by the other party to cover your losses if they do something that causes you harm or causes a third party to sue you. The key words are “indemnify,” “hold harmless,” and “defend.” Be aware who the indemnified party is In most cases, the contract expects you to indemnify the building owner. You must promise to cover their losses if you do something that causes them harm. Homework None