Choosing the Appropriate Enforcement Mechanism Enforcement Response Policies

Basics of All Enforcement Response Policies Three primary goals: Three primary goals: Achieve compliance with the law. Achieve compliance with the law. Make certain all facilities are treated similarly and fairly. Make certain all facilities are treated similarly and fairly. Provide a useful and realistic program management tool. Provide a useful and realistic program management tool.

Basics ERPs are the primary means the Agency uses to determine if a formal or informal enforcement response is needed for specific violations or facilities in violation. ERPs are the primary means the Agency uses to determine if a formal or informal enforcement response is needed for specific violations or facilities in violation. Evaluation and response time frames are specified. Evaluation and response time frames are specified. Separate policies exist for every enforcement program. Separate policies exist for every enforcement program. U.S. experience indicates separate policies are necessary for specific media programs. U.S. experience indicates separate policies are necessary for specific media programs. These are just policies, not firm regulatory guidelines. These are just policies, not firm regulatory guidelines.

Common Elements: Informal Mechanisms Telephone call Telephone call Notice of Violation Notice of Violation Show Cause Notice (invitation) Show Cause Notice (invitation)

Common Elements: Formal Mechanisms Administrative Compliance Order (traditional, real-time, expedited) Administrative Compliance Order (traditional, real-time, expedited) Administrative Penalty Order Administrative Penalty Order Civil Judicial action in federal court Civil Judicial action in federal court Criminal (note: evaluation of a criminal response is on-going throughout any civil action) Criminal (note: evaluation of a criminal response is on-going throughout any civil action)

How to Choose the Right Response - Factors to Consider: Harm to the environment or public health Harm to the environment or public health Small impact may only warrant administrative action, while more severe impacts may warrant civil judicial action. Small impact may only warrant administrative action, while more severe impacts may warrant civil judicial action. Conduct Conduct Was there lying, cheating, stealing? If so, a criminal response may be appropriate. Was there lying, cheating, stealing? If so, a criminal response may be appropriate. Recalcitrance Recalcitrance What is the compliance history of the violator? If there is previous noncompliance, you may need to escalate response. What is the compliance history of the violator? If there is previous noncompliance, you may need to escalate response.

How to Choose the Right Response - Factors to Consider: Type of remedy needed Type of remedy needed Complicated relief may require civil judicial controls. Simple relief might warrant administrative action. Complicated relief may require civil judicial controls. Simple relief might warrant administrative action. Level of detail needed for the relief Level of detail needed for the relief Complicated relief may require more oversight and civil judicial controls. Complicated relief may require more oversight and civil judicial controls. Length of time to implement the remedy Length of time to implement the remedy Longer schedules may require civil judicial process under a specific statute (e.g., CAA). Longer schedules may require civil judicial process under a specific statute (e.g., CAA).

How to Choose the Right Response - Factors to Consider: Size of the penalty Size of the penalty Note CWA and CAA penalty limits. Note CWA and CAA penalty limits. Resources Resources Resources are limited at DOJ. Administrative actions are generally less costly and time- consuming. Resources are limited at DOJ. Administrative actions are generally less costly and time- consuming. General deterrent message General deterrent message What is the better vehicle to send a message to similar facilities? What is the better vehicle to send a message to similar facilities?

Common Elements: Significant Noncompliance (SNC) Definition Prioritizes violations. Prioritizes violations. Establishes those facilities or types of violations that merit a formal enforcement response. Establishes those facilities or types of violations that merit a formal enforcement response. A particular violation may require an immediate designation as SNC or designation only if a violation persists over a specified period. A particular violation may require an immediate designation as SNC or designation only if a violation persists over a specified period.

Common Elements: Time frames Establishes a time frame from violation determination to possible designation as an SNC. Establishes a time frame from violation determination to possible designation as an SNC. Establishes a time frame from designation as an SNC to formal action. Establishes a time frame from designation as an SNC to formal action.

Common Elements: Return to Compliance Defines compliance for specific programs. Defines compliance for specific programs. Establishes a termination date for the SNC period. Establishes a termination date for the SNC period. Usually defined as in full physical compliance or in compliance with a schedule established through an enforcement action. Usually defined as in full physical compliance or in compliance with a schedule established through an enforcement action.

Issues to Consider in ERP Development: SNC Should SNC definitions be the same for all media and if so, should the definition rely more on discretion and judgment, or on formal, objective criteria? Should SNC definitions be the same for all media and if so, should the definition rely more on discretion and judgment, or on formal, objective criteria? Do SNC definitions adequately capture the most significant violations? Do SNC definitions adequately capture the most significant violations?

Issues to Consider in ERP Development: SNC Should SNC determinations be limited to particular types of sources? Should SNC determinations be limited to particular types of sources? Should SNC definitions be driven or constrained by resources? Should SNC definitions be driven or constrained by resources? Should all SNCs require some kind of response? Should all SNCs require some kind of response?

Issues to Consider in ERP Development: Time Frames Should the time frames under different policies be identical? Should the time frames under different policies be identical? Should interim (and potentially difficult to track) deadlines be established? Should interim (and potentially difficult to track) deadlines be established? Does data entry come close to tracking reality? Does data entry come close to tracking reality?

Issues to Consider in ERP Development: Time Frames Should there be a different set of expectations for emergencies or complex cases? Should there be a different set of expectations for emergencies or complex cases? Should the time frame be driven by actual practice or should it be established in an effort to accelerate enforcement activity? Should the time frame be driven by actual practice or should it be established in an effort to accelerate enforcement activity? Is the time frame sufficient to drive facilities to compliance? Is the time frame sufficient to drive facilities to compliance?

Issues to Consider in ERP Development: Response Should the concept of appropriate response be limited to returning a facility to compliance? Should the concept of appropriate response be limited to returning a facility to compliance? Should the concept include both returning a facility to compliance in a timely manner and deterring future violations through an appropriate penalty? Should the concept include both returning a facility to compliance in a timely manner and deterring future violations through an appropriate penalty?

Issues to Consider in ERP Development: Return to Compliance Should the definition of SNC be retained until full physical compliance is achieved or should the designation end when a facility is in compliance with a schedule for compliance established by order? Should the definition of SNC be retained until full physical compliance is achieved or should the designation end when a facility is in compliance with a schedule for compliance established by order?

Discussion