We have seen a recent trend in court filings to enforce a series of environmental law violations against gas stations and mini-mart owners and operators.  While we are always available to help our clients through any nasty legal surprise that may arise, we believe it is better to try to avoid these surprises in the first place – and rarely do we meet a client who disagrees.  Hoge Fenton attorneys monitor legislative actions and court filings to keep abreast of legal developments that may affect our clients' interests.  We want to tell you about these cases and suggest ways we can help now, before this trend affects you or your business.

Failing to Comply with Environmental Laws.  California's legal environmental framework is a complicated set of laws and regulations designed to control every aspect of the use, storage, transport and disposal of hazardous materials, including petroleum products.  There are legal requirements regarding storage plans, documentation of chemical use, posting and warnings, reporting, response plans, training of personnel, and even mandatory periodic upgrades to equipment.  The requirements are so voluminous that many businesses find it difficult to keep current, much less comply with all of them.  Nevertheless, any violation of these laws subjects the business to an injunction and civil penalties of $2,000 - $5,000 per day or more, and $25,000 per day if the violation is a knowing violation.  Keep in mind that no actual environmental harm is required for a business to be liable for such violations.  A violation of certain of the legal requirements, including the prohibition on actual releases of hazardous materials, may subject the business owner to criminal liability including penalties of $25,000 per day or one year of jail time.

Recent Activity in San Joaquin County.  The District Attorney of any county in California can file an action seeking an injunction and civil and/or criminal penalties for these violations.  The DA of San Joaquin County recently has filed such suits against many gas stations and mini-marts.  While the DA could have focused on many other potential areas of liability, these particular suits allege that the businesses failed to establish, submit and implement

hazardous materials release response plans as required by law.  The DA is asking for $200,000 in civil penalties as to each violator.

This is disturbing news.  In these cases,

1. The station owners and operators were not accused of causing any actual environmental harm (nor is such an allegation necessary) – they simply failed to have completed the required paperwork,
   
   
2. The owners and operators may now be subject to large civil penalties,
   
   
3. The DAs of the various counties talk to each other, and our experience has shown us that these complaints can come in waves as the DAs perceive the need and/or opportunity for enforcement in a particular area, and
   
   
4. Owners and operators are exposed to areas of potential liability beyond just written response plans – and there is no guarantee that these particular operators will not be subject to later complaints in other areas.

Inspection Can Lead to Discovery of Additional Violations.  In our experience, a county inspector visiting a site for one limited purpose may take the opportunity to perform a more wide-ranging inspection than necessary for that purpose, and to report other violations to the DA.  This recently happened to one of our clients, which then was sued for significant civil penalties by that District Attorney.  We were successful in negotiating a reduction of the civil penalties, but by the time we were asked to become involved it was too late for the client to avoid paying the county a significant amount.

 

What Should Businesses Do?  Consequently, we are recommending our clients everywhere in California:

• Systematically and proactively review every environmental provision that applies to its business,
  
  
• Review its own compliance in each area, and
  
  
• Quickly make those changes or corrections necessary for compliance.
  
  

We have a team that can perform a professional environmental audit of your business/facility to assist you in complying with your legal obligations and/or developing a plan for compliance.

The information provided in this update may not be applicable in all situations and should not be acted upon without specific legal advice based on your particular situation.

For more information on this topic, please contact:

James R. Hawley
jrh@hogefenton.com

Darcy K. Pruitt
dkp@hogefenton.com

John L. Lawrence
jll@hogefenton.com