Using Local Police Powers to Protect the Environment
| Publication year | 1995 |
| Pages | 1063 |
1995, May, Pg. 1063. Using Local Police Powers to Protect the Environment
This article discusses the powers of (1) fire protection districts, (2) law enforcement, (3) local departments of health, (4) designated emergency response authorities and (5) district attorneys to intervene, issue cease and desist orders and use other sanctions to control incidents(fn1) involving hazardous materials(fn2) or other violations of environmental law. The guiding features of this analysis are the various Colorado statutes relating to this question. It should be remembered that where a question exists concerning a possible environmental crime, the relevant state statute should be consulted to determine which agency is authorized to act.(fn3)
CRS § 32-1-1002(d) permits the board of any fire protection district, and its agents, to adopt and enforce the Uniform Fire Code ("UFC").(fn4) Fire marshals are authorized to enforce the UFC as to "[t]he storage, use, and handling of hazardous materials"(fn5) and to pursue "the investigation of ... unauthorized releases of hazardous materials."(fn6)
Article 80 of the UFC is devoted solely to hazardous materials, making criminal the release of hazardous materials "into a sewer, storm drain, ditch, drainage canal, lake, river, ground, sidewalk. . . ."(fn7) This prohibition applies regardless of amount. The UFC also allows law enforcement assistance, especially when a crime has been committed.(fn8)
Fire marshals also are granted virtually unlimited authority at the site of an emergency. Such authority supersedes that of law enforcement(fn9) and extends to taking "any other action necessary in the reasonable performance of duty,"(fn10) including the authority to order a person engaged in an unlawful release of toxic or hazardous substances to cease and desist.
Fire marshals are authorized to issue orders as necessary "for the safeguarding of life and property."(fn11) UFC § 2-1-2.205(c) specifically authorizes an order to stop an operation if violations of the fire code exist. While these sections do refer to "fire hazard," they include hazardous materials in their general sections, and the regulations apply to such materials equally as to actual fires. These orders may be made verbally, suggesting that emergency on-the-scene response is authorized.(fn12)
Under CRS § 32-1-1002(3)(b)(II)(B), no person may interfere with the work of a fire department or hinder or prevent such discharge of duties. Violation is a misdemeanor punished by a fine of from $50 to $250 per day. It is prosecuted by the district attorney. CRS § 18-8-104 also makes it a misdemeanor to obstruct a firefighter by the use or threat of force, stating that the firefighter must merely be acting under "color of authority." This is a class 2 misdemeanor.
Peace officers(fn13) have the duty to "act"(fn14) when a crime has been or is being committed in their presence. This power exists regardless of the jurisdiction they may find themselves in, as long as they contact the local agency if they act outside the jurisdiction of their employment. Peace officers have broad powers to "arrest"(fn15) that allow for action when the officer has a warrant, has probable cause to believe an offense was committed or the crime is committed in his or her presence.
Case law suggests that the "when in the presence" requirement is met if the arresting officer observes acts that are themselves "sufficiently indicative of a crime in the course of commission."(fn16) The standard of probable cause used for acts committed outside their presence is measured by probabilities gauged by the knowledge,(fn17) experiences, training and life experience of the officer, not technicalities.(fn18) These powers apply with equal
force to the investigation of crimes that involve hazardous substances or other environmental laws.
For example, CRS § 18-13-112 makes the abandonment or dumping of hazardous waste a class 4 felony. There are numerous exceptions to the statute; however, in most situations where enforcement of this law may be necessary, an immediate response to protect the public health may be called for. The essential elements of this offense are that (1) a person (2) intentionally (3) abandoned or spilled hazardous waste.(fn19) Therefore, to make an arrest, a peace officer need only know the identity of the offender, consider the circumstances to determine intent(fn20) and, probably with the assistance of an agent from the Department of Health or EPA, find out that the material is a hazardous waste as defined by statute.(fn21)
Obviously, the better the officers are trained in identifying hazardous substances (and other types of environmental law violations), the easier it will be for law enforcement to feel comfortable with a probable cause determination as a predicate to further action.
Although there is no specific authority for the police to issue cease and desist orders, Colorado case law and statutes authorize powers that are tantamount. A peace officer who has reasonable suspicion that a violation of law is occurring can restrain an individual so that an assessment of the situation can be made.(fn22) These limited detentions, if for a reasonable purpose, reasonable duration and conducted in a reasonable manner, are not considered arrests. Failure to comply with orders of a peace officer, even during such an investigatory detention, or even "hindering . . . the...
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