Module 3: Responding to Violations of Environmental Law

1. Module 3:Responding to Violations of Environmental Law

2. Compliance Monitoring

3. Compliance Monitoring Tools • Inspections • Self-Monitoring and Reporting • Citizen Monitoring / Complaints • Area Monitoring of Ambient Conditions

4. Inspections • Gather information to determine a facility’s compliance status • Collect evidence to support enforcement actions • Ensure quality of self-reported data • Demonstrate government’s commitment to compliance by creating a credible presence • Check whether facilities ordered to comply have done so • Provide technical education and assistance to the regulated community

5. Types and Levels of Inspections • Types: • Routine vs. For-cause • Surprise vs. Announced • Levels (increasing resource-intensiveness): • Walk-through – quick survey, checking for basic equipment, practices, and records • Compliance evaluation – more thorough inspection • Samplinginspection – includes collection and analysis of physical samples

6. Generic Inspection Procedure A compliance evaluation has eight basic phases: 1. Site selection 2. Preparation 3. Entry and opening conference 4. Field investigation, including interviewing and collecting evidence 5. Records investigation and review 6. Closing conference 7. Report writing 8. Referral for follow-up/enforcement

7. Considerations for Designing an Inspection Program • Facility Selection Process • Type, Level, and Frequency of Inspections • Thorough Understanding of Legal Authority • Training Program for Government Inspectors • Methods for Assuring the Quality and Reliability of Data Collected During Inspections OTHER CONSIDERATIONS?

8. Self-Monitoring & Reporting • Sources track their own compliance and record or report the results for government review • Shifts the burden to the polluter • Authorities must review how data was collected to ensure quality • Provide more extensive information than can be obtained through periodic inspections • Provide a mechanism for educating regulated community about requirements • Criminal penalties for falsifying reports Information can be used to target inspections or as a basis for enforcement actions

9. Self-Monitoring: Issues to Consider • Cost – what will the cost and paperwork burden be to industry and government? • Technology requirements – is technology for monitoring available, affordable, accurate, reliable, and easy to learn how to operate? • Data use – how exactly will enforcement officials use the data? • Extent of requirements – should the source report all data or just data that indicate a potential violation? • Public disclosure – should the self-reported data be made available to the public? • Self-Certification – should senior industry officials be required to certify that the facility is in compliance?

10. Area Monitoring of Ambient Conditions • Ambient Monitoring • Monitoring natural systems to determine existing conditions • E.g., may indicate whether water quality is getting better, worse, or not changing • Remote Sensing • Gather visual data that can trigger in-depth inspections • Can use satellites or aircraft overflights • E.g., can measure density, temperatures, and area of water discharges

11. Citizen and Whistleblower Complaints • Vital for detecting violations that occur within an organization or in an isolated locale • Methods for encouraging citizen disclosure: • Provide legal protections • Offer monetary reward for tips or for successful prosecutions • Educate public on ways to detect violations • Educate public about their right to lodge complaints • Establish anonymous system to receive complaints

12. Enforcement

13. What is Enforcement? • A set of actions governments or others take to compel or encourage compliance • Overall strategy to establish expectations among the regulated community about the negative consequences that will follow noncompliance

14. Goals for Enforcement • Address Current Violations • Resolve current environmental harms by enforcing against the violator • Provide Specific Deterrence • Enforcement action discourages violator from violating the regulation again • Provide General Deterrence • Enforcement action against one member of the regulated community discourages noncompliance in the community • Level the Playing Field • Ensure equity among industry • Force Internalization of Environmental Costs • Ensure that industry internalizes costs, leading to rational pricing

15. Ensuring that Enforcement Deters Non-Compliance • Ideally, there should be: • High likelihood that violations will be detected • Swift and predictable responses to violations • Responses that include appropriate sanctions • Perception among violators that these three elements are present You can balance some of these elements against each other (e.g., smaller likelihood of detection with much higher sanctions)

16. Enforcement Mechanisms • Notice of violation / Warning of legal action unless problem is resolved • Negotiated compliance agreement • Administrative actions • Civil enforcement • Criminal prosecution Response must return violator to compliance and discourage recidivism

17. Negotiated Compliance Agreements • Benefits: • Fewer resources required than for court actions • Possible to explore creative solutions • When not to use settlements: • When company would get undeserved benefit • When public will not accept a negotiated agreement • Crafting a settlement: • Settlements must have an enforceable dimension

18. Judgment vs. Settlements • Benefits of Judgments: • High profile of court case is more likely to have deterrent effect • Can be used to clarify law • Necessary if violator will not settle • Judicial response can foster societal ethic that favors the environment • Benefits of Settlements: • More time-efficient and potentially less costly • Require less documentation • Able to negotiate outcome

19. Monetary Sanctions • Purpose: • Ensure no economic benefit from violating law • Send message to regulated community that violations will be punished • Factors Governing Fines and Penalties: • Economic benefit derived from violation • Gravity of violation • Prior compliance history of the facility • Ability to pay

20. ExercisePenalty Calculation

21. Post-Enforcement Action Follow-up • All enforcement actions require follow-up • Ensure the company is performing • Verify that schedule/timetable being followed • Note that chronic violators need long-term scrutiny and inspections

22. Cooperating as an Enforcement Team • Collaborators Cooperation must be intra- and inter-agency Law Enforcement Police, prosecutors, customs Inspectors Attorneys Technical Experts • Other Actors The Public Citizens, watchdog groups, & nongovernmental organizations The Judiciary Important role in interpreting law & imposing sanctions/penalties

23. Coming Up Next • Module 1: Building a Legal Foundation for Good Water Governance • Module 2: Promoting Compliance with Environmental Laws • Module 3: Responding to Violations of Environmental Laws • Module 4: Designing Performance Indicators for Environmental Compliance and Enforcement Programs