Environmental protection

Policing powers of the mayor

The environment is a line of business where the mayor has a significant role to play through his policing powers. It in particular belongs to him to intervene with respect to the wild discharges, of the automobile wrecks, waste oils, the graffiti and the classified installations. Your responsibility can be engaged in the event of absence or of misuse of your capacities. Contrary, the responsibility for the people who would not adhere to your measurements could also be engaged.

> 1.Vos policing powers with respect to the wild discharges

Under the terms of article 2 of the law of July 15th, 1975, any holder of waste likely to attack the health of the man and to the environment must ensure some or make some ensure elimination. However, one has to admit that the communes are confronted more and more with wild discharges.

Vis-a-vis this practice, it belongs to you:
>To proceed to the injunction of the contravener: he belongs to you to address to the owner of the ground on which the refuse was abandoned, an injunction so that he carries out their removal. If the author of the wild deposition is not the owner of the ground, it belongs to you to put in residence this last since the owner of the ground informs you that this deposition was carried out without its knowledge and that it had taken prophylactic measures to avoid it.
This injunction must fix the duration granted to the contravener to remove waste. It must be given according to the seriousness of the harmful effects.

>To make carry out office if the formal notice is not followed negotiable instruments. On this assumption, the owner of the ground must be informed, according to a circular of January 4th, 1985, date on which the communal technical services or a firm duly elected by your community will carry out the removal of waste. At the time of this material operation, the presence of a representative of the commune is necessary. This execution of office will have to be the invoicing purpose near the person responsible.
The procedure of execution of office is not forwarded to obtaining a preliminary jurisdictional decision to enter on a private ground, even enclosed (see ministerial answer , OJ , September 2nd, 1996, ).

Independently of the procedure of injunction and execution of office, of the penal sanctions can be marked against the people who proceeded to the abandonment of waste. Thus, the item of the new lays out which “is punished of the fine planned for the infringments of the 2nd class makes it deposit, to give up or throw, in a public place or deprived, except for the sites indicated for this purpose by the qualified administrative authority, of the refuse, waste, materials or any other purpose, of some nature that it is, if this deposition is not carried out by the person having the pleasure of the place or with its authorization. (...)”. The item of the new provides as for him that “the fact of embarrassing the public highway while depositing there or leaving there without need for materials or unspecified purposes which block or decrease freedom or the safety of passage is punished fine planned for the infringments of the 4th class”. Lastly, the item of the new , comes to sanction of an infringment of 5th class “makes it deposit, give up or throw, in a public place or private, except for the sites indicated for this purpose by the qualified administrative authority, either a wreck of vehicle, or of the refuse, waste, materials or any other purpose, of some nature that it is, when those were transported with the aid of a vehicle, if this deposition is not carried out by the person having the pleasure of the place or with its authorization”.

In order to avoid having recourse to this repressive system, you may find it beneficial to privilege the prevention by placing in particular at the disposal of the population stock rooms of cumbersome waste and stock rooms and evacuation of rubble.

> 1.2 Your policing powers with respect to the automobile wrecks

To fight against the wild depositions of wild wrecks of cars, of a surface lower or equal to 2, you have means of actions on various legal bases:
The depositions of vehicles out of use of a surface upper than 2 are forwarded to the legislation of the installations classified for environmental protection. These structures must obtain a preliminary prefectoral authorization, delivered after public survey and within sight of an impact study.

> 1.3 Your capacities resulting from the relative law to the waste disposal

On the legal basis of this text, you have the same capacities as for any other type of waste. It belongs to you to put in residence the contravener and to proceed to the need to the execution for office (see paragraph above).
Your capacities resulting from the Code of the route
According to item R. 285-2° of the , when the automobile wrecks are abandoned on the public highway or its accesses during more than seven days, you can, as an judiciary police officer, to make proceed to their setting in pound.
In addition, item R. 236 of the provides that any individual who places on a public highway open to public circulation or his immediate surroundings a purpose constituting a disorder for the circulation and which, in spite of an injunction, does not remove it is punished of a fine planned for the infringments of 4th class.

> 1.4 Your capacities resulting from the

According to the item of the new , fine planned for the infringments of the 5th class is punished makes it deposit, give up or throw, in a public place or deprived, except for the sites indicated for this purpose by the qualified administrative authority, either a wreck of vehicle, or of the refuse, waste, materials or any other purpose, of some nature that it is, when those were transported with the aid of a vehicle, if this deposition is not carried out by the person having the pleasure of the place or with its authorization.

> 1.5 Your policing powers with respect to waste oils

Under the terms of a decree of November 21st, 1979, are regarded as waste oils: “(…) mineral oils or synthetic which, inapt after uses for employment for which they were intended as new oils can (...) be re-used either like raw material with a view recycling or of regeneration, or like industrial fuel and whose rejection in the natural environment is interdict under the terms of the provisions of the decree of March 8th, 1977 (...). ”
The regulation relating to waste oils varies according to whether the holder has them because of his community activity or according to whether it is a question of a private individual.

The oils generated within the framework of an occupation. According to the decree of November 21st, 1979, the holders of waste oils coming from their installations must collect them and store them in tight installations until their collecting or their elimination.
The waste oils generated by a private individual.
If the provisions of the decree of November 21st, 1979 are not implemented to the private individuals who have waste oils, the latter cannot nevertheless pour them, deposit, discharge in any place.

In order to make adhere to these obligations, you can act through your policing powers resulting from the item and following from the general Code of the territorial collectivities or as an judiciary police officer to note the infringements with the provisions of the departmental medical regulation. You can also place you on the base of the items and of the rural Code which enable you to charge whoever will have “(...) jeté, poured or let run out (...) directly or indirectly of the unspecified substances whose share or reactions destroyed fish or harmed its nutrition, its reproduction or its food value”. The author of such an infringement incurs a fine of 023 080 francs and/or a two years imprisonment.

> 1.6 Your policing powers with respect to the graffiti

For a few years, one has witnessed a multiplication of the graffiti in the cities, which they are carried out on private properties or the public domain. This proliferation of graffiti is such as the legislator wished, within the framework of the introduction of the new Penal code, to make an offense through articles 322-1 and following.
These items lay down in particular a fine of 35 009 francs when the degraded good is: “(...) intended for the utility or public decoration and belongs to a person public or responsible for a public service mission (...), a building or a classified or registered movable purpose, an archaeological discovery or a purpose preserved or deposited in the museums, libraries or files belonging to a public person in charge of a public service or recognized public utility (...)”. The people found guilty of these degradations can in addition be prohibited civic rights, civil and of family.

Under article 34 of the law of December 31st, 1913 on the historic buildings, any conservative or guard who, in consequence of serious negligence, lets degrade a classified good, can be punished of a eight days imprisonment in three months and of a fine from 150 to 65 007 francs or one of these two sorrows only.

In order to avoid having recourse to this repressive arsenal, you have any interest with set up a preventive operative paragraph: recall in the documents intended for the population of the incurred sanctions, availability of spaces where the young people could realize in all legality of the graffiti, protection of the public buildings by products adapted, wash-out of the graffiti as of their appearance, etc

> 1.7 Your policing powers with respect to the classified installations

According to the law of July 19th, 1976, constitute a classified installation: “the factories, workshops, depositions, workings, careers and generally the installations exploited or held by any natural person or morals, public or deprived, which can forward dangers or disadvantages, either for the convenience of the vicinity, or for health, or for protection of nature and of the environment, or for the conversation of the sites and the monuments”. Thus, must be regarded as a classified installation the depositions of liquid manure out of containers of unit capacity higher or equal to 3.000 liters when full capacity is higher than 2, the establishments of sale, care, guard, breeding of dogs as from ten animals, certain livestock buildings such as the pigsties of more than 50 pigs, etc
Your capacities with respect to these classified installations are limited because the prefect is normally titular specific competences resulting from a special font. Consequently, you cannot oppose to you to the operation of a classified installation since there is no urgent situation (see EC, December 14th, 1981, , ). It only belongs to you to put in residence the owner of the establishment to adhere to the medical regulations (see EC, January 22nd, 1965, Alix, ), to note the possible infringements and to report some to the public prosecutor and to the prefect (see ministerial answer , OJ , July 8th, 1991, ).
On the other hand, you can intervene in the event of imminent danger (see EC, January 15th, 1986, Société Pec-Engineering, ).

> 2.Vos responsibilities

Within the framework of the exercise of your policing powers as regards environmental protection, you can see your criminal responsibility and civil engaged.

> 2.1 Your criminal responsibility

In the event of pollution, your criminal responsibility could be engaged on the base of the rural Code or the base of the law of January 3rd, 1992 on water if you did not intervene in order to put an end to wild depositions of waste. Thus, article 22 of the law on water makes it possible to sanction “whoever threw, poured or let run out in surface, underground waters or sea waters, within the limit of territorial water, directly or indirectly, one or of the unspecified substances whose share or reactions has, even temporarily, involved harmful negotiable instruments on health or of the damage to the flora or fauna” and “whoever threw or gave up waste in significant amount in surface or underground waters or sea waters within the limit of territorial water, on the beaches or the shores of the sea”. The person found guilty of the offense of article 22 of the law of January 3rd, 1992 incurs a sorrow of two months imprisonment to two years and a sorrow of fine from 2.000 to 510 400 francs, or only one of these two sorrows. The court can also impose on condemned to proceed to the restoration of the aquatic environment.
The commune, as an legal entity could also be continued, under the terms of article 121-2 of the new Penal code, for the same infringements.
example: You can be condemned on the base of the infringements provided for to the items, , and of the new rural Code if you do not use your capacities in order to regulate or to prohibit the flow of liquid manure (Voir Chaumont, May 17th, 1994, Proc. Item. Chaumont C./X… and other).

> 2.2 Your civil responsibility

If it is not proven that the use of the policing powers was, of your share, the purpose a detachable fault of the service, your civil liabilities will be always ensured by your commune. It could in particular be retained in the event of inaction of your share to put an end to attacks carried to the environment
example: The responsibility for your commune can be engaged if you did not take the necessary measures in order to put a term at the intrigues of the children of a district who did not cease ruining a surrounding wall and to throw rubbish in an orchard downwards (see EC, October 15th, 1980, , . EC, ).
>The responsibility for your commune can be engaged if you do not take the necessary measures in order to make abolish a wild deposition of refuse whereas you were seized on different occasions by residents (see EC, October 28th, 1977, Commune of , . EC, ).
>The responsibility for your commune can be engaged if you do not take the necessary measures in order to avoid only one uninhabited ground floor open to crusher-run aggregate on the public highway near a market serf of toilet (see EC, November 29th, 1963, , . EC, ).

References
References relating to the wild discharges:
Law of the amended July 15th, 1975 relating to elimination
waste and with the recovery of materials
Circular of January 4th, 1985 relating to the elimination of the wild depositions of waste by execution of office to the expenses of the person responsible.
items, and of the new
References relating to waste oils:
Decree of the bearing November 21st, 1979 amended regulation of the recovery of waste oils
items and of the rural Code
References relating to the graffiti:
Articles 322-1 and following of the new .
References relating to the installations classified for protection
environment:
Law of the amended July 19th, 1976 relating to the installations classified for environmental protection.
Card-index realized by Bernard ,
qualified schoolteacher of public law, avocado at the bar of Paris,
François , assistant of public law at the University of Metz,
1st of and
François , allocatee-monitor at the University of Metz.

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