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Environmental Enforcement: Civil and Criminal

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Daniel Riesel


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This book, by one of the nation's first environmental prosecutors, is a detailed guide to environmental enforcement for members of the regulated community and their counsel. Environmental Enforcement: Civil and Criminal explains the potential consequences of enforcement actions and discusses procedures to follow to minimize exposure.

Topics include: how to conduct an environmental self-audit; civil investigatory procedures in environmental law; civil enforcement under the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Clean Air Act, the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). You'll also find analysis of “government guidance documents”; contribution suits between “potentially responsible parties”; penalties and penalty policies; preliminary injunctions; citizen suits, defenses and awarding of attorneys' fees; the criminal process; the Department of Justice's guidelines for pursuing criminal charges against corporations; criminal representation and defense; and audits to ensure compliance.

Book #00635; looseleaf, one volume, 1,220 pages; published in 1997, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-072-2.


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1220
  • ISBN: 978-1-58852-072-2
  • Pub#/SKU#: 635
  • Volume(s): 1

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  • Daniel Riesel

Daniel Riesel, a senior partner of Sive, Paget & Riesel, P.C., has been involved in the practice of environmental law, general litigation and criminal defense since 1970.  Previously, he served as the Chief of the environmental Protection Unit for the U.S. Attorneys Office, Southern District of New York.

Mr. Riesel chairs the annual ALI-ABA environmental Litigation Course, is past Chairperson of the environmental Law Section of the New York State Bar Association, and has served on and chaired numerous boards and professional associations, including the Association of the Bar of the City of New York's Committee on environmental Law.  He is presently a member of the adjunct faculty at Columbia University Law School and was previously an adjunct professor at Cardozo School of Law from 1986-1992.  Mr. Riesel has contributed to The National Law Journal and has authored such articles as "Criminal Prosecution and the Regulation of Hazardous Substances" and "Criminal Prosecution and the Defense of environmental Wrongs."  He received his LL.B. from Columbia University Law School in 1961 and his B.A. from Union College in 1958.


CHAPTER 1
The Structure of Environmental Enforcement

§ 1.01 Introduction
§ 1.02 Absence of a Comprehensive Approach
§ 1.03 The EPA’s Enforcement Structure
[1] The History of Disorganization
[2] EPA’s Trial Attorneys—The Department of Justice
[3] “De-Balkanizing” the EPA
[4] Consolidated Approach to Enforcement: Multimedia
§ 1.04 The Federal/State Relationship
[1] Overview
[2] The Delegation Process
[3] Parallel Proceedings, Overfiling and Judicial Abstention
[4] Double Jeopardy
§ 1.05 The Government’s Pre-Litigation Enforcement Authority
§ 1.05 A Agency Decisions and Rule Making
[1] The Administrative Record
[2] The Final Agency Action Requirement
[3] Judicial Deference to Agency Action
§ 1.06 Citizen Suits
§ 1.07 The Criminalization of Environmental Enforcement
§ 1.08 The Politics of Environmental Enforcement
§ 1.09 Conclusion

CHAPTER 2
The Statutory Power to Investigate

§ 2.01 Overview
[1] Administrative Subpoenas and Agency Interrogatories
[2] Statutory Reporting Requirements
[3] Intrusive Inspections and Searches
§ 2.02 The Statutory Framework
[1] Comprehensive Environmental Response, Cleanup and Liability Act
[2] Resource Conservation and Recovery Act
[3] Clean Water Act
[4] Clean Air Act
[5] Emergency Planning and Community Right-to-Know Act
[6] Toxic Substances Control Act
[7] Other Environmental Acts with Information Provisions

CHAPTER 3
Dealing with Government Investigatory Demands

§ 3.01 Introduction
§ 3.02 Difficulty of Obtaining Meaningful Review of Government Investigatory Demands
[1] Pre-Enforcement Review
[2] Standards of Review
§ 3.03 The Government’s Demand for Entry
[1] Responding to Demands for Entry and Inspection
[2] Restraints on Civil Inspections
[3] Standards for Obtaining an Administrative Warrant
[4] Warrantless Inspection Pursuant to Statutory Authority
§ 3.04 Scope of Response to an Information Request
[1] What Kind of Information Must Be Provided?
[2] Scope of Investigation by Recipient
[3] Assertions of Confidentiality and Privilege
[4] Can the Government Speak with a Facility’s Employees?
§ 3.05 “Reasonable Basis”
[1] Sufficient Cause
[2] The Paperwork Reduction Act
§ 3.06 Application of Sanctions for Insufficient Response
§ 3.07 The Takings Issue
§ 3.08 Combining Statutes for Tougher Results
§ 3.09 Handling the Investigatory Stage
[1] Mixed Questions of Law, Fact and Tactics
[2] Written Requests for Information
[3] Reporting Requirements Incident to Permits and Regulated Activities
[4] Inspections and Administrative Searches
§ 3.10 Conclusion

CHAPTER 4
Penalties and Penalty Policies

§ 4.01 Introduction
[1] Overview
[2] Distinguishing Civil and Criminal Penalties
§ 4.02 Counting Violations
[1] General Description of the Problem
§ 4.03 Statutory Criteria
§ 4.04 The 1984 EPA Generic Policy on Civil Penalties
§ 4.05 The BEN Model: Determining Economic Benefit of Noncompliance
§ 4.06 The ABEL Model: Determining the Ability to Pay
§ 4.07 Statute-Specific Penalty Policies
[1] Clean Air Act Penalty Policies
[2] The RCRA Civil Penalty Policy
[3] The Clean Water Act Civil Penalty Policies
[4] The CERCLA and EPCRA Penalty Policies
§ 4.08 Penalty Mitigation Through Environmental Benefit Projects

CHAPTER 5
Temporary Restraining Orders, Preliminary Injunctions, and Stays Pending Appeal in Environmental Litigation

§ 5.01 Introduction
§ 5.02 Rules Governing Interlocutory Injunctive Relief
§ 5.03 Preliminary Injunctions
[1] Standards for Granting Relief
[2] The Nature of Irreparable Injury
[3] Avoiding the Burden of Proving Irreparable Injury
[4] Innovative Applications of Injunction in the Environmental Context
[5] Injunctions Against Regulatory Agencies
§ 5.04 Procedures for Obtaining a Preliminary Injunction
[1] Timing
[2] Required Documents
[3] Affidavits
[4] Other Supporting Material
[5] Live Testimony
[6] Use of Discovery
[7] Consolidated or Accelerated Proceedings
§ 5.05 Strategy on Motions for a Preliminary Injunction
[1] Movant’s Tactical Advantages
[2] Ascertaining The Necessity of a Hearing
[3] Movant’s Preparation
[4] Beating the Trial Calendar
[5] Respondent’s Tactics
§ 5.06 Temporary Restraining Orders
[1] Nature of the Temporary Restraining Order
[2] Ex Parte Grants of TROs
[3] Protection Against Ex Parte Grants
[4] Emergency Nature of the TRO
§ 5.07 Other Aspects of Preliminary Injunctions and Temporary Restraining Orders
[1] Findings and Conclusions
[2] Orders
[3] Security for Preliminary Injunctions
§ 5.08 Motions for Stays Pending Appeal and Scope of Appellate Review

CHAPTER 6
The Criminal Process in Environmental Regulation

§ 6.01 Overview: The Interface Between Environmental Law and Criminal Justice
[1] Unique Characteristics of the Criminal System
[2] The Prosecutor
[3] The Grand Jury
[4] Limitations on Defense Counsel
§ 6.02 Federal Law of Environmental Crimes
[1] Introduction
[2] The Development of the Environmental Criminal Statutes
[3] The Federal Statutes
§ 6.03 The Element of Mens Rea
[1] Introduction
[2] Mens Rea and RCRA
[2A]  Mens Rea and the Clean Water Act
[3] The Negligence Standard
[4] Exceptions to Mens Rea the Misdemeanor
[5] Mistake of Fact and Mistake of Law
[6] Corporate Liability for Individual Actions
[7] State Approaches to Mens Rea
§ 6.04 State Enforcement of Environmental Criminal Statutes

CHAPTER 7
Criminal Representation and Defense in Environmental Law

§ 7.01 The Defense of Alleged Environmental Crimes
[1] Reasons for the Institution of Criminal Proceedings
[2] Guidelines for the Initiation of Criminal Proceedings
[3] Conducting the Pretrial Defense
[4] The Use of Scientific Data
[5] Competing Tensions
[6] Structuring the Approach to the Prosecutor
§ 7.02 Representation of the Corporate Client
[1] General Considerations
[2] Violations Committed During the Corporate Response
[3] Interview of Employees
[4] Search and Seizure—Criminal Investigation at the Gate
[5] The Grand Jury
[6] The Corporate Response
[7] Relationship with the Corporation’s Employees
[8] Department of Justice Guidelines on Prosecuting Corporations
§ 7.03 Disposition of the Criminal Case
[1] Disposition and Global Considerations
[2] Need for Confidentiality
[3] Plea Bargaining
[4] Structuring the Settlement of a Criminal Case
[5] Subsequent Civil Proceedings
§ 7.04 Significance of Criminal Prosecution

CHAPTER 8
The Whys, Whens and Hows of Environmental Self-Auditing

§ 8.01 Introduction
§ 8.02 What Is an Environmental Audit?
[1] Introduction
[2] Sources for Guidance on Self-Policing and Auditing
[3] Substantive Goals of an Environmental Compliance Audit
§ 8.03 The Benefits of Effective Environmental Auditing
[1] Introduction
[2] The Imposition of Significant Civil Penalties
[3] Economic Benefits of Environmental Auditing
[4] Exercising “Environmental Triage”
[5] Mitigation of Penalties as a Result of an Existing Audit Program
[6] Benefits Listed by the General Accounting Office
§ 8.04 How to Conduct an Effective Environmental Audit
[1] Dangers of Ineffective Auditing
[2] Principles of Effective Environmental Auditing
[3] Who Should Conduct the Audit?
[4] The Actual Performance of the Audit
[5] Making Sure the Documents Are Accurate
[6] Employee Interviews: Getting the Facts
[7] The Facility Inspection
[8] Verification of Data
[9] Writing the Environmental Audit Report
[10] Review Reconciliation and Implementation
§ 8.05 Minimizing the Risks Associated with Environmental Auditing
[1] The Risks
[2] Maintaining the Confidentiality of the Audit
[3] The Attorney-Client Privilege
[4] The Work Product Doctrine
[5] The Self-Evaluation Privilege
[6] The Risk of Waiver Through Prosecution
§ 8.06 Environmental Compliance Procedures Beyond Auditing
[1] Auditing and Environmental Management
[2] The “ISO 14000” Standards
[3] The CERES Principles
§ 8.07 Dealing With the Public and the Press
[1] Community Involvement
[2] Dealing with the Press
§ 8.08 Conclusion

CHAPTER 9
Civil Enforcement Under the Clean Water Act

§ 9.01 Introduction
§ 9.02 Antecedents
§ 9.03 The Clean Water Act Amendments of 1972
§ 9.04 The Permit System
[1] Point Sources
[2] National Pollutant Discharge Elimination System Permits
[3] State Pollutant Discharge Elimination System Permits
[4] Technology-Based and Water-Quality-Based Standards
[5] Water Quality Criteria for Toxics
[6] Toxic Pollutant Standards
[7] State Standards
§ 9.05 The Pretreatment Regulatory Program
[1] Introduction
[2] Prohibited Discharges
[3] Categorical Standards
[4] Other Controls
§ 9.06 Nonpoint Source Control
§ 9.07 Wetlands
[1] Introduction
[2] Potentially Liable Parties
[3] Administrative Enforcement
[4] Court Judicial Enforcement
[5] Settlement
[6] Government Policy
[7] Criminal Enforcement
§ 9.08 Oil Spills
§ 9.09 Civil Enforcement Under the Clean Water Act
[1] Varied Enforcement
[2] Discretion in Enforcement
[3] Federal Enforcement
[4] Administrative Enforcement
[5] Court Injunctions
[6] Emergency Powers
[7] Citizen Suits
§ 9.10 Defenses
[1] Introduction
[2] Initial Considerations
[3] Bypasses and Upsets
[4] Sampling Error
[5] The Permit Shield
[6] Violation-Counting Issues
[7] Litigating the Penalty
[8] Defenses in Citizen Suits
[9] Inadequate Defenses

CHAPTER 10
Civil Enforcement Under the Clean Air Act

§ 10.01 Introduction
§ 10.02 The Clean Air Act’s Alphabet Soup: NAAQS, NESHAPs and SIPs
[1] NAAQS
[2] NESHAPs
[3] SIPs
§ 10.03 The Clean Air Act’s Title V Permit Program
[1] Permits and Parameters
[2] Allaying the Fears of Business
§ 10.04 Information Gathering
§ 10.05 Federal Enforcement Provisions
[1] Compliance Orders
[2] Administrative Penalties
[3] Field Citations
[4] Federal Court Action
[5] Judicial Review
[6] Newer Federal Enforcement Tools
[7] Penalty Policies
§ 10.06 Defenses Under the Clean Air Act
§ 10.07 Climate Change Enforcement

CHAPTER 11
Civil Enforcement Under the Resource Conservation and Recovery Act

§ 11.01 Introduction
§ 11.02 The Management of Hazardous Waste
[1] Solid Waste
[2] Hazardous Waste
[3] The Subpart C Characteristics
[4] Testing for the Toxicity Characteristic
[5] The Subpart D Lists
[6] Special Provisions for Certain Hazardous Waste
[7] Generators of Hazardous Waste
[8] Transporters of Hazardous Waste
[9] TSD Owners or Operators
[10] Corrective Action
[11] Land Disposal Restrictions
§ 11.03 Regulation of Underground Storage Tanks
§ 11.04 Permits
§ 11.05 Federal Enforcement
[1] Compliance Orders, Administrative Penalties and Injunctive Relief
[2] Civil Penalties
[3] Interim Status Corrective Action
[4] Consent Orders
[5] Criminal Action
[6] The Likelihood of Enforcement
[7] What to Expect in a RCRA Investigation
§ 11.06 State Enforcement
[1] The Statutory Requirements
[2] The RCRA Grant Program
§ 11.07 Defenses
[1] Statutory Defenses
[2] Definitional Defenses
[3] Procedural Defenses
[4] Regulatory Exclusions
[5] Other Defenses
§ 11.08 Citizen Suits

CHAPTER 12
Structure of the Comprehensive Environmental Response, Compensation and Liability Act

§ 12.01 Overview of CERCLA
[1] Introduction
[2] Hastily Drafted Legislation
[3] Basic Structure of CERCLA
[4] Causation
§ 12.02 The National Priorities List
[1] Introduction
[2] How Sites Are Listed
§ 12.03 The National Contingency Plan
§ 12.04 The Heart of CERCLA—Section 107 Liability
[1] Parties Liable
§ 12.05 Defenses
[1] Standard Statutory Defenses
[2] Other Statutory Defenses
[3] The Small Business Liability Relief and Brownfields Revitalization Act
§ 12.06 Costs of Response
[1] Limited Damages
[2] Removal and Remediation Costs
[3] Oversight and Indirect Costs
[4] Interest
§ 12.07 Cleanup Standards for Response Actions
[1] Introduction
[2] Statutory Basis
[3] Degree of Cleanup
[4] Standards for On-Site Cleanups
[5] Standards Applicable to Off-Site Transfers
§ 12.08 Natural Resource Damages
[1] Introduction: The Statutory and Regulatory Scheme
[2] Natural Resource Damage Defenses

CHAPTER 13
Enforcement and Initiatives Under the Comprehensive Environmental Response, Compensation and Liability Act

§ 13.01  Government Enforcement
[1] Overview of EPA Enforcement Approaches
[2] Fund-Financed Actions
[3] Unilateral Remediation Orders Under Section 106
[4] Challenges to Agency Listing Procedure
[5] Emerging Defenses
[6] Administrative Reform and Enforcement
§ 13.02 Litigation Strategies
[1] Government Litigation Strategy
[2] Defendants’ Litigation Strategy
§ 13.03 Negotiated Settlements and Consent Decrees Under CERCLA
[1] Overview
[2] Statutory Framework
[3] The EPA’s Model Consent Decree
[4] Negotiating the Consent Decree
§ 13.04 Private Claims for Relief Under CERCLA
[1] Express Claim for Relief
[2] Claims for Contribution and Claims for Cost Recovery
[3] Consistency with the National Contingency Plan
[4] Tactics And Strategy
[5] Response Costs Recoverable Under Section 107
[6] Related Claims for Relief
[7] Award of Attorneys’ Fees
§ 13.05 Moving Toward the Future: Common Sense and Brownfields Initiatives

CHAPTER 14
Civil Enforcement Under the Emergency Planning and Community Right-to-Know Act (EPCRA)

§ 14.01 Overview
§ 14.02 Statutory and Regulatory Framework
[1] The Reporting Requirements
[2] Statutory Enforcement Provisions
§ 14.03 Defenses
[1] Defenses to Liability
[2] Defenses in Citizen Suits Under EPCRA
§ 14.04 EPCRA Civil Penalty Policies
[1] The Form R Penalty Policy
[2] Penalty Policy for Other EPCRA Requirements
§ 14.05 Applying the EPCRA Penalty Policies

CHAPTER 15
Citizen Suits, and the Award of Attorneys’ Fees in Environmental Litigation

§ 15.01 Overview
§ 15.02 Citizen Suits
[1] Legislative Intent
[2] Statutory Provisions
[3] Preservation of Existing Remedies (Savings Clauses)
[4] Who May Sue
[5] Who May Be Sued
[6] Where Suit May Be Brought
[7] Private Intervention in Government Litigation
§ 15.03 Litigation Strategies
[1] Suits Against the Administrator
[2] Supplemental Claims for Relief
[3] Plaintiffs’ Strategies
[4] Defense Strategies
[5] Settlement and Relief
§ 15.04 The Award of Attorneys’ Fees
[1] Introduction
[2] Non-Statutory Exception for Award of Attorneys’ Fees
[3] General Statutory Exceptions
[4] Statutory Provisions for the Award of Attorneys’ Fees
[5] Party Eligible for Award
[6] The Size of the Attorney’s Fee
[7] Fees of Non-Testifying Experts
[8] Award of Fees for Preparation of Fee Application
[9] Procedures for Obtaining Attorneys’ Fees
§ 15.05 Conclusion

Index