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Stepped EnforcementStepped Enforcement
Karl RooversKarl RooversEnvironmental Enforcement SpecialistEnvironmental Enforcement Specialist
October 19, 2011October 19, 2011
22
Environmental Enforcement Environmental Enforcement RoleRole
Consult with regulatory and law Consult with regulatory and law enforcement staff on case development and enforcement staff on case development and evaluationevaluation
Lead enforcement conferencesLead enforcement conferences
Draft enforcement documents such as Draft enforcement documents such as Orders and prepare cases for prosecutionOrders and prepare cases for prosecution
Investigate environmental violations Investigate environmental violations
33
Environmental Enforcement Environmental Enforcement RoleRole
Serve as liaison to DOJ and assist Serve as liaison to DOJ and assist prosecutor in resolution of cases prosecutor in resolution of cases
Help provide consistency in Department Help provide consistency in Department actionsactions
Assist in developing or revising laws Assist in developing or revising laws and policiesand policies
Provide Environmental Enforcement Provide Environmental Enforcement trainingtraining
44
What EE Can Do For YouWhat EE Can Do For You
We can separate enforcement actions We can separate enforcement actions from your program actions (technical)from your program actions (technical)
We can provide enforcement history We can provide enforcement history (Casetrack)(Casetrack)
We can escalate enforcement actions We can escalate enforcement actions through stepped enforcementthrough stepped enforcement
We can hold conferences to allow We can hold conferences to allow violator to explainviolator to explain
We resolve violations at the lowest levelWe resolve violations at the lowest level
55
WhyWhy Environmental Enforcement is Environmental Enforcement is Important to Important to YouYou
Enforcement can help you do your job Enforcement can help you do your job (compel return to compliance)(compel return to compliance)Encourages consistencyEncourages consistency– You don’t always know what effect your You don’t always know what effect your
actions will have on another program or actions will have on another program or RegionRegion
You don’t know if the document you You don’t know if the document you generate today will be an exhibit in 10 generate today will be an exhibit in 10 yearsyearsNew voice, new emphasisNew voice, new emphasis
66
The Goal of Stepped The Goal of Stepped EnforcementEnforcement
To obtain compliance with To obtain compliance with environmental laws and environmental laws and regulations and regulations and
To protect human health and To protect human health and the environmentthe environment
77
What is Stepped Enforcement ?What is Stepped Enforcement ?
A planned series of actions that expand A planned series of actions that expand and intensify as the case goes onand intensify as the case goes on– To increase the motivation toward To increase the motivation toward
compliance compliance
Starts informally but becomes more Starts informally but becomes more
formal and legal as the steps progressformal and legal as the steps progress
Tailored to fit the circumstances of each Tailored to fit the circumstances of each casecase
99
Why Do We Use It ?Why Do We Use It ?
Environmental cases can be complexEnvironmental cases can be complex
To enhance communicationTo enhance communication
It helps build our caseIt helps build our case
1010
Why Do We Use It ?Why Do We Use It ?
Efficient and effectiveEfficient and effective– Most cases are resolved Most cases are resolved
through use of Notices of through use of Notices of Violation and Enforcement Violation and Enforcement ConferencesConferences
– Typically about 10% of cases Typically about 10% of cases will escalate to Orders and/or will escalate to Orders and/or ReferralsReferrals
1111
Why Do We Use It ?Why Do We Use It ?
2010 Statewide actions 2010 Statewide actions (Civil)(Civil)
– 461 461 NOVs IssuedNOVs Issued
– 232 Enforcement Conferences Held232 Enforcement Conferences Held
– 51 Cases Referred to DOJ 51 Cases Referred to DOJ
1212
Why Do We Use It ?Why Do We Use It ?
Stepped EnforcementStepped Enforcement–Shows courts that we Shows courts that we
go the extra milego the extra mile to to communicate and obtain communicate and obtain voluntary compliance before voluntary compliance before recommending prosecutionrecommending prosecution
1313
When When NOTNOT to use Stepped to use Stepped EnforcementEnforcement
EmergenciesEmergencies
Cases where violations are Cases where violations are serious and severeserious and severe
EPA Timely and Appropriate EPA Timely and Appropriate GuidelinesGuidelinesWe actually still use stepped enforcement – just We actually still use stepped enforcement – just
fewer stepsfewer steps
1414
Informal ContactsNotice of Noncompliance
Request for Secondary EnforcementNotice of Violation
Enforcement ConferenceAdmin. / Consent Order
Referral to DOJ/DA/EPAProsecution / Citation
Stepped Enforcement
1515
Informal ContactsInformal Contacts(First Steps)(First Steps)
Program StaffProgram Staff
–Phone calls, letters, site visits, Phone calls, letters, site visits, inspections and complaintsinspections and complaints
–Facility Contact Forms, File Memos, Facility Contact Forms, File Memos, Case Activity Reports, Samples and Case Activity Reports, Samples and PhotosPhotos
1616
Notice of NoncomplianceNotice of Noncompliance(NON)(NON)
Issued by Program StaffIssued by Program Staff– Letter sent to violatorLetter sent to violator
Advises of problemsAdvises of problems
Requests correctionRequests correction
1717
NONNON
When to IssueWhen to Issue
– Program decision based on seriousness Program decision based on seriousness of alleged violation & individual case factsof alleged violation & individual case facts
– As soon as appropriate response is lostAs soon as appropriate response is lost
Don’t wait any longer than necessaryDon’t wait any longer than necessary
1818
NONNONWhat the NON What the NON shouldshould contain contain– Description of problems and what is required Description of problems and what is required
to return to compliance i.e. plan condition, to return to compliance i.e. plan condition, code….code….
– Specific time frame to document responseSpecific time frame to document responsePick a date for Pick a date for response to youresponse to you, NOT a time , NOT a time period to return to complianceperiod to return to compliance
– By no later than Monday, June 16, 2012, please By no later than Monday, June 16, 2012, please submit your written response describing steps you submit your written response describing steps you have taken to return to compliance have taken to return to compliance
vs. vs. – You have 30 days to return to complianceYou have 30 days to return to compliance
– Statement that enforcement actions may be Statement that enforcement actions may be escalated if return to compliance is not timelyescalated if return to compliance is not timely
1919
NONNONWhat the NON What the NON should notshould not contain contain– Penalty citationPenalty citation
Leave this for the Notice of ViolationLeave this for the Notice of Violation– Dear Dan, Cindi, BuffyDear Dan, Cindi, Buffy
This is a formal documentThis is a formal document– Enforcement outcomesEnforcement outcomes
Don’t make promisesDon’t make promises– Timeframes that allow violator to remain Timeframes that allow violator to remain
out of complianceout of compliance– ““You are in violation of….” We may only You are in violation of….” We may only
allege a violationallege a violation
2020
Request for Secondary Request for Secondary EnforcementEnforcement
Decision to pursue further enforcement Decision to pursue further enforcement action is made by Program Staff, action is made by Program Staff, Supervisors and EE Specialist Supervisors and EE Specialist – EE will review for:EE will review for:
ConsistencyConsistency
ProofsProofs
Elements of the offenseElements of the offense
2121
Request for Secondary Request for Secondary EnforcementEnforcement
Have you met the Elements of the Have you met the Elements of the Offense?Offense?Section 289.31(1), Wis. Stats: Operating Section 289.31(1), Wis. Stats: Operating license. License requirement. No license. License requirement. No personperson may may operateoperate a a solid waste facilitysolid waste facility or or hazardous waste hazardous waste facilityfacility unless the unless the personperson obtainsobtains an an operating operating licenselicense from the departmentfrom the department..
S. 289.01(27), Wis. Stats: "Person" means an individual, S. 289.01(27), Wis. Stats: "Person" means an individual, owner, operator, corporation, limited liability company, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, partnership, association, municipality, interstate agency, state agency or federal agency.state agency or federal agency.
2222
Request for Secondary Request for Secondary EnforcementEnforcement
Can you prove it?Can you prove it?
ProofProof is the evidence (testimony, is the evidence (testimony, documentation, photos, data, physical documentation, photos, data, physical samples) which a party presents to the samples) which a party presents to the trier of fact (the judge and jury) which trier of fact (the judge and jury) which leads them to draw reasonable leads them to draw reasonable conclusionsconclusions
Your documentsYour documents
2323
Request for Secondary Request for Secondary EnforcementEnforcement
Program Staff use Program Staff use Environmental Environmental Enforcement Request FormEnforcement Request Form to transmit to transmit case via supervisors to Environmental case via supervisors to Environmental EnforcementEnforcement
2424
ENVIRONMENTAL ENVIRONMENTAL ENFORCEMENT REQUEST FORMENFORCEMENT REQUEST FORM
Filling out Form 4100-189Filling out Form 4100-189
2525
2626
2727
2828
2929
3030
ENVIRONMENTAL ENVIRONMENTAL ENFORCEMENT REQUEST FORM ENFORCEMENT REQUEST FORM
(Review)(Review)
Violation SummaryViolation Summary– Specific STATUTE, CODE, or PERMIT condition Specific STATUTE, CODE, or PERMIT condition
violated, date(s) of violation(s) or date range, violated, date(s) of violation(s) or date range, lay term lay term descriptiondescription of violation such as “Failure to report”. of violation such as “Failure to report”. ((Be Specific!)Be Specific!)
Actions TakenActions Taken– i.e., NON, calls, letters; attach copy (Documents)i.e., NON, calls, letters; attach copy (Documents)
Electronic files are helpful, but we need Electronic files are helpful, but we need Signed Signed CopiesCopies
DO NOT give us your original documentsDO NOT give us your original documents
3131
ENVIRONMENTAL ENVIRONMENTAL ENFORCEMENT REQUEST ENFORCEMENT REQUEST
FORMFORMConfidentialConfidentialDo not email formDo not email formDo not keep a copy of the formDo not keep a copy of the formSave to GenshareSave to GenshareCall your supervisor to let them know the Call your supervisor to let them know the request is on the Genshare drive in the folder request is on the Genshare drive in the folder you namedyou namedAvoiding email helps to keep the form Avoiding email helps to keep the form confidentialconfidential
3232
Questions to Ask when Questions to Ask when Considering Secondary Considering Secondary
EnforcementEnforcement
How big a threat is this to public health?How big a threat is this to public health?
How big a threat to the environment?How big a threat to the environment?
How serious is the violation?How serious is the violation?
How responsive is the violator?How responsive is the violator?
How toxic is the pollutant? How toxic is the pollutant?
How important is this violation to EPA?How important is this violation to EPA?
3333
Questions: Questions:
What is the location of the source of pollution? What is the location of the source of pollution?
How long or how many times has this happened?How long or how many times has this happened?
Is this a new or existing facility or source? Is this a new or existing facility or source?
Was there significant monetary gain?Was there significant monetary gain?
Are there any mitigating circumstances or Are there any mitigating circumstances or
defensesdefenses??
3434
Secondary EnforcementSecondary Enforcement
3535
Notice of ViolationNotice of ViolationFormal letter issued by EE staff which:Formal letter issued by EE staff which:– States the violationStates the violations, and permit, statute or s, and permit, statute or
code citationcode citation– Gives brief description of violationGives brief description of violations and s and
circumstancescircumstances– Warns of possible prosecution and penaltiesWarns of possible prosecution and penalties– Requests informationRequests information, documentation or , documentation or
response within set time period (10 days) or by response within set time period (10 days) or by specific date (June 16, 2012)specific date (June 16, 2012)
– Invites violator to an Invites violator to an enforcement conferenceenforcement conference– Includes Includes Notice of ClaimNotice of Claim for governmental for governmental
unitsunits
3636
Notice of Claim Notice of Claim Must comply with s. 893.80(1), Wis. Stats.Must comply with s. 893.80(1), Wis. Stats.
We must issue a Notice of Claim when we take legal We must issue a Notice of Claim when we take legal
action (Admin. Orders, Referrals, Citations) against action (Admin. Orders, Referrals, Citations) against
Governmental Units Governmental Units
Included as part of the NOVIncluded as part of the NOV
Applies to Applies to ALLALL Environmental Statutes Environmental Statutes
Exceptions: Injunctions, Administrative Order with Exceptions: Injunctions, Administrative Order with
Penalty, Criminal CasesPenalty, Criminal Cases
3737
NOC TimelinesNOC Timelines From the Date of ViolationFrom the Date of Violation, , we have 120 dayswe have 120 days to serve to serve (hand deliver) a Notice of Claim with the (hand deliver) a Notice of Claim with the Governmental UnitGovernmental Unit
Not the date of discovery of the violation, but Not the date of discovery of the violation, but the actual date the violation occurredthe actual date the violation occurred
From the Date of service of our Notice of ClaimFrom the Date of service of our Notice of Claim, , they they have 120 dayshave 120 days to send us a to send us a Written Disallowance of Written Disallowance of ClaimClaim – If they do not do this, the claim is automatically disallowed at If they do not do this, the claim is automatically disallowed at
the end of the 120 day periodthe end of the 120 day period
3838
NOC TimelinesNOC Timelines
From the Date of a Written Notice of From the Date of a Written Notice of Disallowance, Disallowance, we have 180 dayswe have 180 days to file to file an action, (issue citation, file complaint)an action, (issue citation, file complaint)
From the Date of an From the Date of an automatically automatically disallowed claimdisallowed claim, we have until the , we have until the Statute of Limitations expires to take an Statute of Limitations expires to take an actionaction
3939
Service of a Notice of ClaimService of a Notice of Claim
Service has to be in personService has to be in person– Ss. 801.11(4) and 893.80(1)(a), Wis. Stats.Ss. 801.11(4) and 893.80(1)(a), Wis. Stats.
Certified Mail is not acceptable as Certified Mail is not acceptable as proper service, the document has to be proper service, the document has to be presented presented in personin person– Most often served by program staffMost often served by program staff
Within the 120 day timeline from the Within the 120 day timeline from the actual date of the violationactual date of the violation
4040
Service of a Notice of ClaimService of a Notice of ClaimWho gets served: Who gets served: – CountyCounty: County Board Chair or Clerk: County Board Chair or Clerk– TownTown: Chairperson or Clerk: Chairperson or Clerk– CityCity: Mayor, City Manager or Clerk: Mayor, City Manager or Clerk– VillageVillage: Village President or Clerk: Village President or Clerk– Technical College DistrictTechnical College District: Secretary or : Secretary or
District Board ChairDistrict Board Chair– School DistrictSchool District: Board President or Clerk: Board President or Clerk– Any other governmental unitAny other governmental unit: Officer, : Officer,
Director, or managing officialDirector, or managing official
State agenciesState agencies are covered in a different are covered in a different statute. Contact Environmental Enforcementstatute. Contact Environmental Enforcement
4141
Service of a Notice of ClaimService of a Notice of Claim
““I can’t find them”, or “They’re not here I can’t find them”, or “They’re not here right now, come back next week:” right now, come back next week:”
““In lieu of delivery to the person... the In lieu of delivery to the person... the copy may be left in the office of such copy may be left in the office of such officer, director, or managing agent, with officer, director, or managing agent, with the the person who is apparently in charge of person who is apparently in charge of the officethe office.” S. 801.11(4)(b), Wis. Stats. .” S. 801.11(4)(b), Wis. Stats.
4343
Enforcement ConferenceEnforcement Conference
Program Staff, EE specialist, violator, Program Staff, EE specialist, violator, violator’s attorney violator’s attorney
Open meeting with violator on a scheduled Open meeting with violator on a scheduled datedate– If the public or press attend they are seated If the public or press attend they are seated
away from the table and may not participateaway from the table and may not participate
Typically held at a Department officeTypically held at a Department office
4444
Enforcement ConferenceEnforcement ConferenceDiscuss technical problemsDiscuss technical problems
Work to find acceptable technical solutionWork to find acceptable technical solution
Develop action plan & schedule Develop action plan & schedule
Document the agreementDocument the agreement– EC summary letterEC summary letter– SubmittalSubmittal
Explain enforcement optionsExplain enforcement options
Good Problem Solving OpportunityGood Problem Solving Opportunity
Good source of leads for future investigation and Good source of leads for future investigation and prosecutionprosecution
Often serves to expose litigation risksOften serves to expose litigation risks
Leads to compliance agreement, no further action or Leads to compliance agreement, no further action or escalated enforcement actionescalated enforcement action
4545
...with apologies to David ...with apologies to David Letterman (and everybody else) Letterman (and everybody else)
we present:we present:
The ALL TIMEThe ALL TIME
TOP 10 LISTTOP 10 LISTof Excuses for of Excuses for
Environmental ViolationsEnvironmental Violations
4646
TOP 10 EXCUSES FOR TOP 10 EXCUSES FOR ENVIRONMENTAL VIOLATIONSENVIRONMENTAL VIOLATIONS
5.5. A DNR guy (whose name I don't remember) said it was A DNR guy (whose name I don't remember) said it was OKOK
6.6. Environmental Laws and Rules are [ ] Unconstitutional, Environmental Laws and Rules are [ ] Unconstitutional, [ ] Unrealistic, [ ] Arbitrary and [ ] Capricious [ ] Unrealistic, [ ] Arbitrary and [ ] Capricious
(pick all that apply)(pick all that apply)7.7. We can't afford to do it right We can't afford to do it right “I have to leave for the “I have to leave for the
opening of our new multi-million dollar headquarters”opening of our new multi-million dollar headquarters”8.8. This was the work of disgruntled employees - who have This was the work of disgruntled employees - who have
been fired (or shot)been fired (or shot)9.9. I'm just a dumb person... I'm just a dumb person... 10. It's all DNR's Fault10. It's all DNR's Fault
4747
TOP 10 EXCUSES FOR TOP 10 EXCUSES FOR ENVIRONMENTAL VIOLATIONSENVIRONMENTAL VIOLATIONS
1.1. “We studied this situation extensively, completed “We studied this situation extensively, completed computer modeling, made calculations, performed computer modeling, made calculations, performed multiple regression analysis, and multiple regression analysis, and we have absolutely we have absolutely NO idea what happenedNO idea what happened” (Or simply “We don’t want to ” (Or simply “We don’t want to tell you.”tell you.”
2.2. It's all (pick one) [ ] condensed It's all (pick one) [ ] condensed steam, [ ] product, [ ] steam, [ ] product, [ ] noncontact cooling water, [ ] perfectly safe to drink noncontact cooling water, [ ] perfectly safe to drink "I've been working with this stuff for 10 years and I'm "I've been working with this stuff for 10 years and I'm not dead” not dead” (YET!)(YET!)
3.3. Blame the Dead GuyBlame the Dead Guy4.4. We didn't do it, Somebody else did. We didn't do it, Somebody else did. “Some criminal “Some criminal
stole our garbage and dumped it“ stole our garbage and dumped it“ “The Raccoons did it”“The Raccoons did it”
4848
If you get one of these excuses, If you get one of these excuses,
it it doesn’t doesn’t mean they’re lying,mean they’re lying,
it just means you’ve got questions to askit just means you’ve got questions to ask
Every Every LIELIE has an element of truth, has an element of truth,
Every truth has an element of lieEvery truth has an element of lie
Sometimes, you can hear the Sometimes, you can hear the TRUTHTRUTH stretch a whole bunchstretch a whole bunch
4949
OrdersOrdersUse an Order to:Use an Order to:– Set a Schedule for ActionSet a Schedule for Action– Revoke a PermitRevoke a Permit– Require Submittal of DocumentsRequire Submittal of Documents
Types of OrdersTypes of Orders– Unilateral or Administrative OrderUnilateral or Administrative Order– AAdministrative dministrative PPenalty enalty OOrderrder
Public Water Supply, s. 281.99(1), Wis. Stats.Public Water Supply, s. 281.99(1), Wis. Stats.– Consent OrderConsent Order– Emergency OrderEmergency Order
5050
Positives of an OrderPositives of an Order
Clearly Outlines a Technical RemedyClearly Outlines a Technical Remedy
Specific ExpectationsSpecific Expectations
Specific ScheduleSpecific Schedule
Non-compliance Strengthens ReferralNon-compliance Strengthens Referral
Drawbacks of an OrderDrawbacks of an OrderNo Authority to Assess PenaltiesNo Authority to Assess Penalties– Except for Public Water Supplies Except for Public Water Supplies
Review Time for Region and Central OfficeReview Time for Region and Central Office
5151
ReferralsReferrals
RecommendationRecommendation by the Department by the Department to prosecute for violationsto prosecute for violations
Who Prosecutes?Who Prosecutes?– Wisconsin Department of JusticeWisconsin Department of Justice– District AttorneyDistrict Attorney– EPAEPA
5454
When to Refer?When to Refer?
Public Health or Environmental Threat Public Health or Environmental Threat or Damage or Damage
Significant Exceedance of LimitsSignificant Exceedance of Limits
Recurring ViolationsRecurring Violations
Degree of CooperationDegree of Cooperation
Significant Benefit for Non-ComplianceSignificant Benefit for Non-Compliance
Criminal IntentCriminal Intent
Available Proofs?Available Proofs?
5555
Referral ProcessReferral Process
Decision to ReferDecision to ReferPre-Referral ProcessPre-Referral ProcessDraft Referral PackageDraft Referral PackageRegional Review / ApprovalRegional Review / ApprovalCentral Office Review / ApprovalCentral Office Review / ApprovalReferral Letter to DOJ from Secretary / Referral Letter to DOJ from Secretary / Deputy SecretaryDeputy SecretaryReferral Letter to Violator from EE Advising Referral Letter to Violator from EE Advising They have been ReferredThey have been Referred
5656
Referral PackageReferral Package
Transmittal MemoTransmittal Memo
Regional ApprovalsRegional Approvals
Executive SummaryExecutive Summary
Supporting DocumentationSupporting Documentation
CONFIDENTIAL!CONFIDENTIAL!
5757
Transmittal MemoTransmittal Memo
From Region to Steve Sisbach / Tim From Region to Steve Sisbach / Tim AndrykAndryk
Used by Reviewers & ProsecutorsUsed by Reviewers & Prosecutors
Identifies the Violator and ViolationsIdentifies the Violator and Violations
Requests Review for ProsecutionRequests Review for Prosecution
5858
Sections of Transmittal MemoSections of Transmittal MemoReferral SummaryReferral Summary– Overall Narrative of EventsOverall Narrative of Events– Brief statement of environmental Brief statement of environmental
impact/significanceimpact/significance– Recommends Transmittal to Department Recommends Transmittal to Department
of Justice for prosecutionof Justice for prosecutionPotential Defendant(s)Potential Defendant(s)– Name, Address, d/b/a, Aliases, etc.Name, Address, d/b/a, Aliases, etc.– Registered AgentRegistered Agent– Corporate/Property Ownership, Location, Corporate/Property Ownership, Location,
Licenses/PermitsLicenses/Permits
Department ContactsDepartment ContactsPotential WitnessesPotential Witnesses
5959
Sections of Transmittal MemoSections of Transmittal Memo
Enforcement Actions– NOVs….
Violations and Proof– Heart of Referral– Need Proof for Each Element of the Offense
Inspection Reports, Photos, Samples, Letters, CARsDocuments the Individual Days of ViolationLists Violations not Recommended for Prosecution
6060
Sections of Transmittal MemoSections of Transmittal Memo
Potential Defense Arguments and Potential Defense Arguments and Mitigating FactorsMitigating FactorsSignificance of ViolationSignificance of ViolationPenalty Recommendation, Remedial Penalty Recommendation, Remedial Activities, Plan Modification, Court Activities, Plan Modification, Court Ordered ScheduleOrdered Schedule– Referral facts Determine what we wantReferral facts Determine what we want
Forfeitures, Clean up, SEP, RestitutionForfeitures, Clean up, SEP, Restitution– Forfeiture CalculationForfeiture Calculation
6161
After ReferralAfter Referral
Prosecutor is the LeadProsecutor is the Lead
Enforcement Specialist is LiaisonEnforcement Specialist is Liaison
Program Staff are Technical ExpertsProgram Staff are Technical Experts– Don’t be afraid to continue to work with Don’t be afraid to continue to work with
the violatorthe violator– Refer questions about the litigation to Refer questions about the litigation to
the Enforcement Specialistthe Enforcement Specialist
Be Patient! Be Patient!
6262
After ReferralAfter ReferralOften DNR, DOJ and Violator Meet to Discuss Often DNR, DOJ and Violator Meet to Discuss Settlement – Case is Often Settled at this PointSettlement – Case is Often Settled at this Point– oror
Complaint filed with courtComplaint filed with courtAnswer (or Summary Judgment)Answer (or Summary Judgment)Litigation:Litigation:– Settlement NegotiationsSettlement Negotiations– Trial Preparation (including discovery)Trial Preparation (including discovery)
Case concludes with a stipulated settlement or a Case concludes with a stipulated settlement or a Court trialCourt trialCourt Decision or Order issued by judgeCourt Decision or Order issued by judge
Case settlement is best time for publicityCase settlement is best time for publicity
6363
After Settlement / Court OrderAfter Settlement / Court Order
Program staff tracks to see that the Program staff tracks to see that the defendant obeys the Court Orderdefendant obeys the Court Order
If the Court Order is violated, we contact If the Court Order is violated, we contact DOJ to enforce the OrderDOJ to enforce the Order
6464
After the Court OrderAfter the Court Order
Enforcement staff advise the DOJEnforcement staff advise the DOJ– Site is restoredSite is restored
No further actionNo further action
– Court Order violatedCourt Order violatedContempt actionContempt action
DOJ may issue “Satisfaction of Judgment”DOJ may issue “Satisfaction of Judgment”– When requested When requested
6565
Review of Violations and Review of Violations and Enforcement ResponsesEnforcement Responses
6666
Review of Violations and Review of Violations and Enforcement ResponsesEnforcement Responses
Routine ContactsRoutine Contacts– Informal, site visits, inspections, meetingsInformal, site visits, inspections, meetings
Low Significance ViolationsLow Significance Violations– LetterLetter– Notice of NoncomplianceNotice of Noncompliance
Low / Medium Significance ViolationsLow / Medium Significance Violations– Notice of Violation, option of Enforcement Notice of Violation, option of Enforcement
Conference, response requestedConference, response requested
6767
Review of Violations and Review of Violations and Enforcement ResponsesEnforcement Responses
Medium Significance ViolationsMedium Significance Violations– Notice of Violation / Enforcement Conference / Notice of Violation / Enforcement Conference /
CitationCitation
Medium / High Significance ViolationsMedium / High Significance Violations– Notice of Violation / Enforcement Conference / Notice of Violation / Enforcement Conference /
Order / Citation / Referral to DOJ / Order / Citation / Referral to DOJ /
DA / EPADA / EPA
6868
Review of Violations and Review of Violations and Enforcement ResponsesEnforcement Responses
High Significance ViolationsHigh Significance Violations– Notice of ViolationNotice of Violation
– Enforcement ConferenceEnforcement Conference
– Referral to DOJ / DA / EPA Referral to DOJ / DA / EPA
6969
Review of Violations and Review of Violations and Enforcement ResponsesEnforcement Responses
Emergencies / Imminent DangerEmergencies / Imminent Danger– Immediate InjunctionImmediate Injunction
Criminal ViolationsCriminal Violations
– Criminal Investigation & ProsecutionCriminal Investigation & Prosecution
7070
Miniscenario ExerciseMiniscenario Exercise
Objective:Objective:–To use & reinforce the trainingTo use & reinforce the training
you’ve just receivedyou’ve just received
7171
DIRECTIONSDIRECTIONS You’ll be given a scenario - look at the case You’ll be given a scenario - look at the case
facts considering the stepped enforcement facts considering the stepped enforcement process. Make a decision about how DNR process. Make a decision about how DNR should respond based on your training, the should respond based on your training, the facts and the Reviewfacts and the Review
You’ll be asked to make a short report:You’ll be asked to make a short report: Tell what you saw in the scenario, and Tell what you saw in the scenario, and Make a recommendation on how to proceed Make a recommendation on how to proceed
(NOV, Order, Referral….)(NOV, Order, Referral….)
7272
MiniscenariosMiniscenarios
Group 1.Group 1.– JAYPEE Environmental Services, Inc.JAYPEE Environmental Services, Inc.
Group 2.Group 2.– Roofer’s Economy PaintingRoofer’s Economy Painting
Group 3.Group 3.– Carl’s Custom PlatingCarl’s Custom Plating
7373
JAYPEE Environmental Services, Inc.JAYPEE Environmental Services, Inc. WHAT THE SCENARIO SHOWS:WHAT THE SCENARIO SHOWS:– Unresolved violationsUnresolved violations– Referable serious violationsReferable serious violations– Actual or potential release to environmentActual or potential release to environment
Enforcement Response:Enforcement Response:– Coordinated Statewide inspectionsCoordinated Statewide inspections– Coordinated Statewide stepped enforcementCoordinated Statewide stepped enforcement– Administrative order to obtain complianceAdministrative order to obtain compliance– Civil prosecution for forfeitures and Civil prosecution for forfeitures and
remediation?remediation?– Injunction to stop activity?Injunction to stop activity?
7474
Roofer’s Economy PaintingRoofer’s Economy Painting
WHAT THE SCENARIO SHOWS:WHAT THE SCENARIO SHOWS:– Minor noncomplianceMinor noncompliance– Minor violationsMinor violations– Technical problemsTechnical problems
Enforcement Response:Enforcement Response: – NON – first formal stepNON – first formal step– Increased inspection scheduleIncreased inspection schedule– NOV for further violationsNOV for further violations
7575
Carl’s Custom PlatingCarl’s Custom Plating WHAT THE SCENARIO SHOWS:WHAT THE SCENARIO SHOWS:– Willful (deliberate) violationsWillful (deliberate) violations– Negligent violationsNegligent violations– Actual or potential release to Actual or potential release to
environmentenvironment
Enforcement Response:Enforcement Response: – Environmental investigation / criminal Environmental investigation / criminal
prosecutionprosecution– Civil prosecution for remediationCivil prosecution for remediation
7676
OverviewOverview
We can separate enforcement actions from We can separate enforcement actions from program technical contactsprogram technical contactsEscalate enforcement actions as soon as Escalate enforcement actions as soon as necessarynecessaryMeet the elements of the offense through your Meet the elements of the offense through your proofsproofsDon’t make promisesDon’t make promisesDon’t establish timelines that condone Don’t establish timelines that condone noncompliancenoncomplianceNotice of Claim for municipalitiesNotice of Claim for municipalities
7777
Questions?Questions?