1 Module 3: Responding to Violations of Environmental Law

2 Compliance Monitoring

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

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

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

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

7 Considerations for Designing an Inspection Program Facility Selection Process Facility Selection Process Type, Level, and Frequency of Inspections Type, Level, and Frequency of Inspections Thorough Understanding of Legal Authority Thorough Understanding of Legal Authority Training Program for Government Inspectors Training Program for Government Inspectors Methods for Assuring the Quality and Reliability of Data Collected During Inspections 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 Sources track their own compliance and record or report the results for government review Shifts the burden to the polluter Shifts the burden to the polluter Authorities must review how data was collected to ensure quality Authorities must review how data was collected to ensure quality Provide more extensive information than can be obtained through periodic inspections Provide more extensive information than can be obtained through periodic inspections Provide a mechanism for educating regulated community about requirements Provide a mechanism for educating regulated community about requirements Criminal penalties for falsifying reports 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? 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? 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? 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? 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? 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? Self-Certification – should senior industry officials be required to certify that the facility is in compliance?

10 Area Monitoring of Ambient Conditions Ambient Monitoring Ambient Monitoring Monitoring natural systems to determine existing conditions Monitoring natural systems to determine existing conditions E.g., may indicate whether water quality is getting better, worse, or not changing E.g., may indicate whether water quality is getting better, worse, or not changing Remote Sensing Remote Sensing Gather visual data that can trigger in-depth inspections Gather visual data that can trigger in-depth inspections Can use satellites or aircraft overflights Can use satellites or aircraft overflights E.g., can measure density, temperatures, and area of water discharges 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 Vital for detecting violations that occur within an organization or in an isolated locale Methods for encouraging citizen disclosure: Methods for encouraging citizen disclosure: Provide legal protections Provide legal protections Offer monetary reward for tips or for successful prosecutions Offer monetary reward for tips or for successful prosecutions Educate public on ways to detect violations Educate public on ways to detect violations Educate public about their right to lodge complaints Educate public about their right to lodge complaints Establish anonymous system to receive 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 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 Overall strategy to establish expectations among the regulated community about the negative consequences that will follow noncompliance

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

15 Ensuring that Enforcement Deters Non-Compliance Ideally, there should be: Ideally, there should be: High likelihood that violations will be detected High likelihood that violations will be detected Swift and predictable responses to violations Swift and predictable responses to violations Responses that include appropriate sanctions Responses that include appropriate sanctions Perception among violators that these three elements are present 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 Notice of violation / Warning of legal action unless problem is resolved Negotiated compliance agreement Negotiated compliance agreement Administrative actions Administrative actions Civil enforcement Civil enforcement Criminal prosecution Criminal prosecution Response must return violator to compliance and discourage recidivism

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

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

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

20 Exercise Penalty Calculation

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

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

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