Many issues may be raised and disputed in typical enforcement actions. Enforcement officials should be prepared to:
- Assemble and review evidence sufficient to establish a violation of law, including working with investigators and experts.
- Prove that a violation has occurred. The standard of proof may vary, depending on whether the prosecution is administrative, civil, or criminal and how liability is imposed (e.g., negligence, strict liability).
- Establish that the procedures and policies were fairly and equitably followed and that the violator is not being unduly “singled out.”
- Demonstrate the underlying environmental or public health purpose for the requirement being violated, or harm caused or threatened to be caused to those interests by the violation. (It may be necessary to reiterate the importance of the requirement, and compliance with the requirement, to justify and support an enforcement case. This is particularly true when a case is being argued in front of an independent decision-maker who is not familiar with the requirement or its environmental or public health benefits).
- Demonstrate that a remedy for the violation is available (e.g., affordable pollution control equipment). Even though this is not usually the responsibility of the Government, this information can be important to negotiations.
- Establish the damages caused by the violation or establish the appropriate sanction or remedy that the law sets for the violation. Often laws provide a range of sanctions, and a prosecutor may need to prove to the trier of fact (e.g., the judge) what is the appropriate fine or other sanction.
- Demonstrate the ability of the violator to pay, e.g. showing that a “poor” facility is owned by a wealthy parent company. This also goes to the appropriateness of the requested penalty.
- In appropriate cases, consider the alternative of settlement, especially if an agreement can be worked out that may provide greater benefits to public health or the environment.
This checklist expands upon materials from INECE.