HomeMy WebLinkAboutMINUTES - 10271987 - 2.2 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on _ October 27, 1987 by the following vote:
AYES: Supervisors Powers, Fanden, Schroder, Torlakson, McPeak
NOES: None
ABSENT: None
ABSTAIN: None .
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SUBJECT: Illegal Dumping of- Hazardous Waste
In response to a Board referral on July 28, 1987, the
Board received the attached report from Victor J. Westman, County .
Counsel, relating to increasing penalties for illegal dumping of
hazardous waste.
After discussion by Board members, .IT IS BY THE BOARD
ORDERED that the following actions are APPROVED:
1. REQUESTED the District Attorney to report to the
Hazardous Materials Commission on the impact on
consumers of increased penalties for. illegal dumping of
hazardous waste;
2. REFERRED the issue to the Hazardous Materials Commission
to report on the County' s ability to enforce current
laws on illegal dumping, to review a proposed ordinance
to increase penalties, and to develop a public education
program to inform the public of State law which provides
a reward for information relative to' illegal dumping of
hazardous waste; and
3. REQUESTED the Internal Operations Committee to review
the above information when received and report on
options available to the Board.
cc: District Attorney
Hazardous Materials Commission
Internal Operations Committee
County Administrator
I hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: ,l�' 'j`�'y� a`! �9�7
PHIL BATCHELOR,Clerk of the Board
of Supervisors and County Administrator
By od4,c4e ,
, Deputy
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Dare: October 7 , 1987
To% Board of Supervisors
From: Victor J. Westman, County Counsel l"T /
By: Lillian T. Fujii , Deputy County.
Re: Increasing penalties for illegal dumping of hazardous waste
("midnight dumping" )
RECOMMENDATION: This office recommends consideration of
proposing state legislation 11 (1) requiring that illegal dumping of
hazardous waste be punished as a felony, (2 ) increasing the
minimum fine for the same, with a greater percentage of the fine
to be distributed to the prosecuting county, and ( 3) imposing
civil liability upon responsible parties for costs associated with
investigation, prosecution and clean-up of the illegal dumping.
Consideration should be given to obtaining the District
Attorney' s views on this matter, especially with respect -to the
impact of such penalties on consumers.
BACKGROUND: On July 28, 1987, the Board requested the County
Counsel, Health Services Department and. Hazardous Materials
Commission to develop a county ordinance which would increase :..
penalties for illegal dumping of hazardous waste. If these goals
cannot be accomplished by the County under current law, the
Board requests recommendations on legislative changes necessaryto
accomplish these policies. Attached hereto is a September 16,
1987 memorandum submitted by this office to the Hazardous
Materials Commission and -the Health Services Director. The
subject was discussed by the Hazardous Materials Commission on
September 23, 1987. The Commission members expressed strong
support for the Board' s policy of imposing stiffer penalties for
illegal dumping of hazardous waste. The Commission members were
concerned, however, that under current California law, individual
consumers may be subject to prosecution for disposing of commonly
purchased consumer items (which are hazardous under California
law) , either down the drain or in the garbage can. The Commission
members would not support increased penalties against consumers .
Under Health and Safety Code § 25189.2, the disposal of a.
hazardous waste at an unauthorized point is punishable by a civil
fine of up to $10,000 for each violation. This is in contrast to
§ 25189. 5, pursuant to which a fine of up to $100,000 may be.
imposed for the knowing disposal of waste at an unauthorized
Board of Supervisors October 7 , 1987
point. Presumably, a consumer who unknowingly disposes of waste
at an unauthorized point may be liable under § 25189 . 2 , (but not
under §25189 . 5 ) . Of course, a maximum $10 ,000 civil penalty
would be severe for an act which was done- without malice or evil
intention (as -presumably a consumer' s act of wrongful disposal of
waste would 'be) . This office would be surprised if there have
been any suits or actions taken against consumers for "unknowing"
wrongful disposal of very small quantities of hazardous waste.
However, this question may be better answered by the District
Attorney.
Given the concerns expressed by the Hazardous Materials
Commission, the Board may wish to give this matter further
consideration.
LTF:df
cc: Hazardous Materials Commission
c/o C.L. Van Marter
Gary T. Yancey, District Attorney
Attn:. Jim Sepulveda, Deputy District Attorney
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COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Dare: September 16, 1987
To: Hazardous Materials Commission
Mark Finucane, Health Services Director
From: Victor J-. Westman, County Counsel �.� (✓
By: Lillian T. Fujii, Deputy County Counsel
Re: Increase penalties for illegal dumping of hazardous waste
( "midnight dumping" )
SUMMARY: This office recommends consideration of proposing.
.State"'legislation: ( 1) requiring that illegal dumping of
hazardous waste be punished as a, felony, (2 ) increasing the
minimum fine for the same, with a greater percentage of the fine
to be distributed to the prosecuting county, and ( 3) imposing
civil liability upon responsible parties for costs associated with
investigation, prosecution and clean-up of the illegal dumping.
BACKGROUND: Pursuant to Supervisor McPeak' s recommendation,
the Board of Supervisors requested that this office, the Health .'
Services Department, and the Hazardous Materials Commission
develop an ordinance designating the illegal dumping of hazardous
waste as a felony, increasing the fine to at least' $25,000. 00, 'to
be paid to Contra Costa County, and establishing responsible party
(iricluding 'corporate officer).. liability for costs associated with
investigation, prosecution -and clean-up of the illegal dumping.
If State authority is necessary, the Board further requests
that the County' s legislative program seek the authority necessary
to implement the above policy recommendations. `As discussed
below; all of these programs will require State authorization.
Your comments on these matters would be appreciated.
DISCUSSION:
1. Violation of County Ordinance Not a Felony. Pursuant to
Government Code § 25131, violations of a county ordinance are
misdemeanors, unless they are made infractions by the board of
supervisors . Thus, the County does not have the authority to make
a violation of its ordinance punishable as a felony. in order to
do so, ' Government Code 5' 25131 would have to be amended. In our-
view this would- be a major change in State law which the State
Legislature would not approve. A more practical approach would be
to seek other legislative amendments (to the Hazardous Waste
Control Law,. H. &S.C. § 25100 et seq. ) to accomplish the same ends .
FILE
COPY
Hazardous Materials Commission September 16',: 1987
Mark Finucane, Health Services Director
2 . Penalty for illegal Dumping. Hazardous waste illegal
dumping is specially prohibited and made punishable by Health and
Safety Code § 25189 . 5 (a ) and (b) :
"25189. 5.
: . . ('a) The disposal of. any hazardous. waste,
or the causing thereof, is prohibited when.
the disposal is at a' facility which does not
have a permit from the department issued
pursuant to this chapter or at any point
which 'is' not authorized according .to this
chapter.
(b) Any person who is convicted of
knowingly disposing or causing the disposal
of 'any hazardous waste, or who reasonably
should have known, that he or she was
disposing or causing .the disposal .-of . any
hazardous waste, at a .facility which does not
have a permit from the department . . . ,
or at any point which is not authorized . . .
shall, upon conviction, be punished
by imprisonment in the county jail for not
more than one year -or by imprisonment in the.
state. prison for 16, 24, or 36- months: "
This section makes illegal dumping punishable as a
misdemeanor or as a felony, depending upon the sentence imposed.
It is a misdemeanor if a county jail sentence is imposed, and a
felony if- .-a- -state...prison •sentence- is imposed.. (Penal .Code §
17(a) , (b) . )
If the' " Board desires that illegal dumping be punished as a
felony in all cases, consideration should be given to asking the
State Legislature to amend H.&S•.C. § 25189.5 to require a .felony
sentence upon conviction. ' You may wish to obtain the District
Attorney' s view on whether this change would create any
enforcement problems .
3. Fine for Illegal Dumping. Upon conviction for illegal
dumping, under.-H. &S.C. § 25189.5 (d) , the court must also impose:
a fine of 'not less than five thousand
dollars ( $5, 000) or more than one hundred
thousand dollars ( $100,000 ) for each day of
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Hazardous Materials Com:.Assion September 16, 1987
Mark Finucane, Health Services Director
violation . . . If the [ illegal dumping]
caused great bodily injury or caused a
substantial probability- that death could
result, the person convicted . . . may be
punished by imprisonment inthe state prison
for up to 36 months, in addition to the term : .
specified in subdivision (b) or .(c) , and may
be fined up to two hundred fifty thousand
dollars ( $250,000) for each 'day of violation."
(H.&S.C. §25189.5 (d) . )
To require the imposition of a fine of at least $25,000, the
minimum fine in this section would have to be raised from
$5,000 to $25,000.
4.. Apportionment of Civil and Criminal Penalties..
The Hazardous Waste Control Law also 'dicta'tes how fines are
to be apportioned. Under Section 25192, all ciil and criminal
penalties collected upon conviction for illegal dumping are
distributed as ' follows: 50% to the State' s Hazardous Substance
-, Account in the State' s General Fund; 25% to the prosecuting
agen::y; and 25% to the enforcement agency.
Urider' H.&S.C. § 25192 , County agencies may receive up to-. 5000-
of
o-. 50vof a fine or penalty collected upon conviction, if the crime is
prosecuted by the District Attorney and investigated by the
County Health Department. Fifty percent would go to the State.
(Presumably, if a matter is settled without a conviction, monies
--collected would be distributed..iri .any- manner agreed upon by the
parties. We would refer you to -the District Attorney's Office for
further detail in this area. )
Legislation amending § 25192, to require local distribution
of all of -the fine or penalty collected upon conviction, may be
difficult to obtain. However, consideration should- be given to
asking the Legislature to amend § 25192, to award a greater share
to local agencies when a violation is locally investigated and
enforced.
5. No Civil Penalties - by County.
Absent state legislation, a county may not seek to recover
costs of law enforcement. (County of San Luis Obispo v. Abalone.
Alliance [ 1986] 178 Cal.App. 3d 848, 859, 223 Cal.Rptr. 846)
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Hazardous Materials Commission September 16, 1987
Mark Finucane, Health Services Director
The Hazardous Waste Control Law does not expressly impose
responsible party liability for the actual or reasonable costs of
investigating, prosecuting or cleaning-up an act of illegal
dumping. We see no legal reason why this may not be accomplished
by appropriate state statutory amendment. Therefore,
consideratioh- should be given to- seeking that legislation: :.
6. Reward to Informants
. .At the 8-26-87 meeting of the Hazardous Materials Commission,
Supervisor Fanden raised the question of rewards-. to.-people who,
inform against persons who illegally dump hazardous waste. Upon
reviewing the Hazardous Waste Control Law, 'we found that State. law
already provides for rewards' to those providing information which
materially contributes to the imposition of a civil penalty or
criminal fine. (H.&S.C. § 25191.7. ) The reward amount is 10$.-of
the civil penalty or. criminal fine collected, not to exceed
$5,000.00.
LTF:df
cc: Board of Supervisors
Phil Batchelor, County Administrator
Attn: C. L. Van Marter
Gary Yancey, District Attorney
Attn: Jim Sepulveda
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