Academic journal article Journal of Environmental Health

Duty-to-Inform, Discrimination, and Septic-System Issues

Academic journal article Journal of Environmental Health

Duty-to-Inform, Discrimination, and Septic-System Issues

Article excerpt

With the federalization of pollution control laws in the 1970s and 1980s, environmental health enforcement choices proliferated. Many jurisdictions, instead of having the single option of pursuing a misdemeanor conviction against a violator, could choose to proceed against a violator for the same illegal activity with civil penalties--through an administrative or judicial order, injunctions, liens, license revocation or suspension, or administrative enforcement order--and with a felony prosecution. The availability of enforcement options is generally good for conscientious, reasonable, and fair environmental health officials. It allows an official to tailor enforcement to the type of polluter and the nature of the problem. A problem may arise, however, when a jurisdiction seeks both a civil remedy and a criminal prosecution.

It is not uncommon in environmental health law to have a civil penalty assessment and potential criminal prosecution against a person for the same environmental health violation. Sometimes the processes are simultaneous, and sometimes they are staggered. There is no standard for determining which enforcement action should come first.

For example, under 33 U.S.C. [section] 319 (Clean Water Act), a negligent discharge of a pollutant to a watercourse can result in both a civil penalty and a felony conviction. Under 42 U.S.C. [section] 6928 (Resource Conservation and Recovery Act), a person who knowingly treats, stores, or disposes of any hazardous waste without a permit may receive a civil penalty and a felony conviction regardless of his or her knowledge of whether the substance is hazardous waste or whether the company has a permit. The provision of two punishments (one civil and one criminal) is not double jeopardy prohibited by the Constitution. (1) Many states have similar provisions.

Starting from this understanding, Case 1 in this month's column concerns the responsibility of state health department officials who are pursuing remediation of a violation to inform the violator of potential criminal charges.

Case 2 involves a food inspector for the Health and Human Services Department of Houston, Texas, a black woman who sued the city for racial discrimination after she was placed on indefinite suspension for misuse of a city vehicle.

The last two cases concern sewage disposal. Case 3 is about the liability of Clinton County, Iowa, for a malfunctioning onsite sewage disposal system. Case 4 discusses the conviction of a disposal system installer in Fayette County, Georgia, for burying the system before it was inspected.

Case #1: Duty to Inform Violator of Potential Criminal Charges (2)

A real estate developer owned a private wastewater treatment plant worth around $325,000. During the summer of 1996, the South Carolina Department of Health and Environmental Control (DHEC) contacted the developer about the operation of the plant. In August 1996, the developer and his attorney met with DHEC officials, who suggested he pay a substantial civil penalty or transfer the sewage treatment plant to a nearby town. The developer declined the transfer because of the large financial loss and the possible inference of guilt. So the negotiations continued.

Meanwhile, a DHEC official involved in the negotiations referred the matter to the South Carolina Attorney General for possible criminal prosecution. Despite several personal visits and telephone conferences, the DHEC official never mentioned this fact to the developer and his attorney, and they never inquired about the potential for criminal prosecution. The developer's attorney "assumed" a settlement with DHEC would resolve "everything." The DHEC official, who "didn't want to put [the criminal charges] at jeopardy," was cautious not to represent that the settlement covered any criminal charges. She "didn't think it was anything that he needed to know," but she repeatedly assured the attorney that if the developer deeded the plant to the town, the "entire matter" would go away. …

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