DENR Environmental Enforcement Training 2006

1
DENR Environmental Enforcement Training 2006

• Effective Use of Injunctions
• Mell Nevils, Division of Land Resources
• Stormie Forte, NCDOJ

2
Types of Enforcement

• Civil Penalties
• Injunctions
• Stop Work Orders
• Restoration
• Criminal Penalties
• Special Orders of Consent (SOC)
• Permit Revocation

3
What is an Injunction?

• A writ or order from a court prohibiting a
  person, group or entity from carrying out a given
  action or ordering a given action to be done

4
Estimated number of injunctions filed

• 2001 - 19
• 2002 - 23
• 2003 - 20

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Reasons for an Injunction

• Need immediate action
• Imminent threat or danger
• Civil penalties dont work
• Need to have the power of the court
• When more typical compliance efforts fail to
  bring the site into compliance

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Purpose of an Injunction

• Prohibitory To stop an action
• Mandatory To force an action

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Forcing an Action

• Filling in drainage ditches
• Installing esc measures
• Remove a waste but must show an imminent threat
• Clean up the site after waste is remove if an
  imminent threat
• Stop operations which could result in the
  business being shut down

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Stopping an Action

• Dumping Hazardous Waste
• Building a dam without a permit
• Mining wetlands
• Draining wetlands
• Land Disturbance without an approved ESC Plan
• A entity from generating a waste
• Waste lagoon in imminent danger of failing

9
Statutory Authority Examples

• Air Pollution Control 143-215.114C
• Coastal Area Management 113A-126
• Dam Safety Law 143-215.36
• Dry Cleaning Program 143-215.104R
• Public Health/Solid Hazardous Waste 130A-18
• Sedimentation Pollution Control Act 113A-65(a)
• Underground Storage Tanks 143-215.94Y
• Water and Air Resources 143-215.6C
• Water Resources 143-215.17(c)
• Well Contractors Certification Program 87-98.13

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Statutory language excerpt

• NCGS 113A-65(a)Whenever the Secretary has
  reasonable cause to believe that any person is
  violating or is threatening to violate the
  requirements of this Article he may, either
  before or after the institution of any other
  action or proceeding authorized by this Article,
  institute a civil action for injunctive relief to
  restrain the violation or threatened violation.
  The action shall be brought in the superior court
  of the county in which the violation or
  threatened violation is occurring or about to
  occur, and shall be in the name of the State upon
  the relation of the Secretary.

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Statutory language excerpt

• NCGS 143-215.6C Whenever the Department has
  reasonable cause to believe that any person has
  violated or is threatening to violate any of the
  provisions of this Part, any of the terms of any
  permit issued pursuant to this Part, or a rule
  implementing this Part, the Department may,
  either before or after the institution of any
  other action or proceeding authorized by this
  Part, request the Attorney General to institute a
  civil action in the name of the State upon the
  relation of the Department for injunctive relief
  to restrain the violation or threatened violation
  and for such other and further relief in the
  premises as the court shall deem proper. ...
  The court shall grant the relief necessary to
  prevent or abate the violation or threatened
  violation.

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Basic Requirement

• Show that the violation has occurred, is
  continuing to occur, or is threatened to occur.

13
Case Law

• A judge is more familiar with the private
  litigant requirements likelihood of success on
  the merits and either irreparable harm or the
  necessity to protect rights
• Test is different when the State brings an action
  to vindicate the public interest pursuant to a
  statute which provides for injunctive relief to
  abate violations of law
• Do not need to show actual injury
• Need only show violative acts or practices
  adversely affecting the public interest
• State ex rel. Edmisten v. Challenge, Inc., 54
  N.C. App. 513, 521-522 (1981)

14
Results of an Injunction

• Injunction may be used to encourage violator to
  resolve issues as well as abate environmental
  impacts.
• Brings the violator to the table to discuss
  solutions.
• Can result in a consent judgment and settlement
  agreement.

15
Phases of Injunctive Relief

• Temporary Restraining Order
• Preliminary Injunction
• Permanent Injunction

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Temporary Restraining Order (TRO)

• Lasts for 10 days
• Other side need not be present, but usually need
  to show judge effort at notification
• Judge considers evidence presented by the
  Department
• May need someone to testify

17
Preliminary Injunction

• Lasts until the hearing on permanent
• Hearing is normally required with testimony
• Other side present
• Department staff will testify

18
Permanent Injunction

• Permanent
• Hearing is normally required with testimony
• Other side present
• Department staff will testify

19
Information needed for an Injunction

• Memo Requesting the Injunction (normally from the
  Division Director)
• Information on the violations
• Evidence of the property owner (Deed)
• Information on the financially responsible party
• Site map
• Site inspection reports
• Previous NODS and NOVs on the site and any
  correspondence from the violator

20
Information needed for an Injunction

• Other agency correspondence if appropriate
• Chain of Custody for any samples
• Pictures with a map identifying where and in
  which direction pictures were taken
• Documentation of any previous enforcement actions

21
Achieving the Best Results

• Before going to court, determine what results you
  want
• Work with the AGs Office to organize, draft, and
  communicate a solution in the Prayer for Relief
  of the Complaint
• Think through possible schedules and benchmarks
  for the solution. For example Restoration Plan
  (development and approval), Monitoring,
  Reporting, After-the-Fact Permitting, Schedule
  with dates
• If settlement agreement, consider penalties for
  not adhering to the agreement.

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Prayer for Relief

• Last part of the Verified Complaint
• Specifically lists the relief sought
• Essentially sets forth the requirements for
  compliance with the law

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PRAYER FOR RELIEF EXCERPT

• 2.  That the Court enter a preliminary
  injunction ordering defendant
  to (A) immediately stop accepting waste at the
  facility
• (B) prevent access to the facility within five
  days.
• 3.  That the Court enter a permanent
  injunction requiring the defendant to remove
  all solid waste and transport it for disposal to
  a properly permitted facility, prohibiting the
  defendant from accepting any further waste at his
  unpermitted facility, and forever prohibiting the
  defendant from establishing and operating a solid
  waste management facility in violation of the
  Solid Waste Management Statutes, Chapter 130A,
  Article 9,  and the Solid Waste Management
  Regulations, 15A N.C. Admin. Code Chapter13B, on
  property owned, leased, or managed by any
  defendant in the State of North Carolina or on
  any property in the State of North Carolina.

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Verification Sample

• ___________, being first duly sworn, deposes and
  says
• that she is a (Title) with the (Name of Section)
  of the
• Division of____________, North Carolina
  Department of
• Environment and Natural Resources that she has
  read
• the foregoing Complaint and that she is familiar
  with all
• of the facts and circumstances stated therein
  that the
• same are true of her own knowledge, except as to
  those
• matters and things stated and alleged upon
  information
• and belief, and as to those matters and things
  she
• believes them to be true.
•  __________________________
• Subscribed and sworn to before me  this the ____
  day of ______, 2004.__________________________No
  tary PublicMy Commission expires___________(SEA
  L)

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The Litigation Process

• Participating in discovery
• Providing affidavits
• Providing testimony

26
Consent Judgment

• An agreement between the parties for injunctive
  relief which is approved by the Court.

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Remedy for Contempt

• Jail

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Considerations

• Harm or Threat to the public health or the
  environment
• The Repeat Violator
• The Procrastinating Violator
• The Asset Challenged Violator
• Note Any of these types of violators may also
  be recalcitrant in that they exhibit a stubborn
  resistance to authority and/or a defiance of
  authority or guidance.

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• Mell Nevils
• Division of Land Resources
• [phone]
• Mell.Nevils_at_ncmail.net
• Stormie Forte
• Assistant Attorney General
• (919) [phone]
• SFORTE_at_ncdoj.com