clemmons injuctions

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Injunctions: 

Injunctions

Hypothetical: 

Hypothetical Wooden Recycling, Inc., is permitted by the Agency to operate a solid waste facility for grinding untreated wooden pallets into “mulch.” The facility is required to grind 75% of the waste received at the facility per month and to move it off-site, either by selling it to customers or by storing it in an off-site warehouse. The agency has learned that the facility is only grinding 35% of the pallets received at the facility per month, resulting in the accumulation of pallets at site. The facility has failed to move any of the processed material off-site. The facility has also been accepting treated and painted wood in violation of its permit. Piles of this waste cover approximately ¼ acre. Wood Recycling, Inc., has also begun land-disturbing activities at the back of the property possibly for purposes of creating an area for burning waste. A creek borders the back of the property. An Elementary school is located adjacent to the property. Residential homes are within ¼ mile. The Agency is considering its enforcement options, including injunctive relief.

An Injunction is a Remedy Ordered by the Court.: 

An Injunction is a Remedy Ordered by the Court.

Two Types of Injunctive Relief: 

Two Types of Injunctive Relief Prohibitory Injunction Mandatory Injunction

Slide5: 

A prohibitory injunction forbids a person from undertaking a certain activity.

Slide6: 

A mandatory injunction requires a person to perform a certain activity.

Slide7: 

The Secretary of DENR can seek injunctive relief.

Estimated number of injunctions filed:: 

Estimated number of injunctions filed: 2001 - 19 2002 - 23 2003 - 20

Examples of DENR programs with authority to seek injunctive relief:: 

Examples of DENR programs with authority to seek injunctive relief: Air Pollution Control NCGS §143-215.114C Coastal Area Management NCGS §113A-126 Dam Safety Law NCGS §143-215.36 Dry Cleaning Program NCGS §143-215.104R Public Health/Solid and Hazardous Waste NCGS §130A-18 Sedimentation Pollution Control Act NCGS §113A-65(a) Underground Storage Tanks NCGS §143-215.94Y Water and Air Resources NCGS §143-215.6C Water Resources NCGS §143-215.17(c) Well Contractors Certification Program NCGS §87-98.13

Examples of statutory language:: 

Examples of statutory language: NCGS §113A-65(a): Whenever the Secretary has reasonable cause to believe that any person is violating or is threatening to violate the requirements of this Article he may, either before or after the institution of any other action or proceeding authorized by this Article, institute a civil action for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the superior court of the county in which the violation or threatened violation is occurring or about to occur, and shall be in the name of the State upon the relation of the Secretary.

N.C.G.S. §130A-18(a): 

N.C.G.S. §130A-18(a) If a person shall violate any provision of this Chapter or the rules adopted by the Commission or rules adopted by a local board of health, the Secretary or a local health director may institute an action for injunctive relief, irrespective of all other remedies at law, in the superior court of the county where the violation occurred or where a defendant resides.

NCGS §143-215.6C: 

NCGS §143-215.6C Whenever the Department has reasonable cause to believe that any person has violated or is threatening to violate any of the provisions of this Part, any of the terms of any permit issued pursuant to this Part, or a rule implementing this Part, the Department may, either before or after the institution of any other action or proceeding authorized by this Part, request the Attorney General to institute a civil action in the name of the State upon the relation of the Department for injunctive relief to restrain the violation or threatened violation and for such other and further relief in the premises as the court shall deem proper. ... [T]he court shall grant the relief necessary to prevent or abate the violation or threatened violation. …

Slide13: 

Show that the violation has occurred, is continuing to occur, or is threatened to occur.

Initiating the civil case: 

Initiating the civil case Filing and serving the Verified Complaint.

VERIFICATION: 

VERIFICATION ___________, being first duly sworn, deposes and says that she is a (Title) with the (Name of Section) of the Division of____________, North Carolina Department of Environment and Natural Resources; that she has read the foregoing Complaint and that she is familiar with all of the facts and circumstances stated therein; that the same are true of her own knowledge, except as to those matters and things stated and alleged upon information and belief, and as to those matters and things she believes them to be true.  __________________________ Subscribed and sworn to before me  this the ____ day of ______, 2004. __________________________ Notary Public My Commission expires:___________ (SEAL)

“Prayer for Relief”: 

“Prayer for Relief” Last part of the Verified Complaint Specifically lists the relief sought Essentially sets forth the requirements for compliance with the law

PRAYER FOR RELIEF: 

PRAYER FOR RELIEF WHEREFORE, the plaintiff, State of North Carolina, prays that the Court grant to it the following relief: 1.  That the Court accept this verified complaint as an affidavit upon which to base orders of the Court. 2.  That the Court enter a **preliminary injunction** ordering defendant to: (A) immediately stop accepting waste at the facility and (B) post a “no dumping sign” and prevent access to the site within five days. 3.  That the Court enter a **permanent injunction** requiring the defendant to remove all solid waste and transport it for disposal to a properly permitted facility, prohibiting the defendant from accepting any further waste at his unpermitted facility, and forever prohibiting the defendant from establishing and operating a solid waste management facility in violation of the Solid Waste Management Statutes, Chapter 130A, Article 9,  and the Solid Waste Management Regulations, 15A N.C. Admin. Code Chapter13B, on property owned, leased, or managed by any defendant in the State of North Carolina or on any property in the State of North Carolina. 4.  That the Court retain continuing jurisdiction of this case until all provisions of its orders are carried out; 5.  That any preliminary injunction, and any subsequent permanent injunction issued by the Court shall be enforceable by and through the contempt powers of this Court, pursuant to Chapter 5A of the North Carolina General Statutes; 6.  That the costs of this action, including attorney fees, if allowable, are taxed against the defendant; 7.  That this Court grants such other and further relief as the Court shall deem to be just and proper. Respectfully submitted, this the ____ day of December, 2002. ROY COOPER Attorney General           Assistant Attorney General N.C. Department of Justice Environment Division

Slide18: 

Temporary restraining order- relief is needed immediately; emergency situations; time is critical; good for 10 days.

Preliminary Injunction: 

Preliminary Injunction An injunction obtained at the beginning of the lawsuit to keep the defendant from doing or continuing some act; also can be used to make a defendant take affirmative steps to stop violating the law; continues until the lawsuit is finally resolved.

Permanent Injunction: 

Permanent Injunction An injunction that resolves the case.

Order for Preliminary Injunction: 

Order for Preliminary Injunction Does not decide the entire case but gives interim relief.

Judgment: 

Judgment The final decision that resolves the lawsuit for injunctive relief.

The Litigation Process:: 

The Litigation Process: Participating in discovery Providing affidavits Providing testimony

Consent Judgment: 

Consent Judgment An agreement between the parties for injunctive relief which is approved by the Court.

Enforcing the Judgment: Contempt: 

Enforcing the Judgment: Contempt Willful disregard or disobedience of the Court’s Judgment or a Consent Judgment

Remedy for Contempt:: 

Remedy for Contempt: Jail

Considerations: 

Considerations Harm or Threat to the public health or the environment The Repeat Violator The Procrastinating Violator The “Asset Challenged” Violator Note: Any of these types of violators may also be recalcitrant in that they exhibit a stubborn resistance to authority and/or a defiance of authority or guidance.

Discussion questions: 

Discussion questions Do you think the hypothetical supports a case for an injunction?  Why or why not? What are the strengths? Weaknesses? Do you need additional information or facts to help you make your decision? If there are weaknesses, would further factual investigation strengthen the case? What specific relief would you seek?

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