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Module 3:Module 3:

Responding to Violations of Responding to Violations of Environmental Law Environmental Law

22

Compliance MonitoringCompliance Monitoring

33

Compliance Monitoring ToolsCompliance Monitoring Tools

InspectionsInspections Self-Monitoring and ReportingSelf-Monitoring and Reporting Citizen Monitoring / ComplaintsCitizen Monitoring / Complaints Area Monitoring of Ambient ConditionsArea Monitoring of Ambient Conditions

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InspectionsInspections Gather information to determine a facility’s compliance Gather information to determine a facility’s compliance

statusstatus

Collect evidence to support enforcement actionsCollect evidence to support enforcement actions

Ensure quality of self-reported dataEnsure quality of self-reported data

Demonstrate government’s commitment to compliance by Demonstrate government’s commitment to compliance by creating a credible presencecreating a credible presence

Check whether facilities ordered to comply have done soCheck whether facilities ordered to comply have done so

Provide technical education and assistance to the Provide technical education and assistance to the regulated community regulated community

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Types and Levels of InspectionsTypes and Levels of Inspections

Types: Types: Routine vs. For-causeRoutine vs. For-cause Surprise vs. AnnouncedSurprise vs. Announced

Levels Levels (increasing resource-intensiveness):(increasing resource-intensiveness): Walk-throughWalk-through – quick survey, checking for basic – quick survey, checking for basic

equipment, practices, and recordsequipment, practices, and records Compliance evaluationCompliance evaluation – more thorough inspection – more thorough inspection SamplingSampling inspection – inspection – includes collection and includes collection and

analysis of physical samplesanalysis of physical samples

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Generic Inspection ProcedureGeneric Inspection ProcedureA compliance evaluation has eight basic phases:A compliance evaluation has eight basic phases:

1. Site selection1. Site selection

2. Preparation2. Preparation

3. Entry and opening conference3. Entry and opening conference

4. Field investigation, including interviewing and 4. Field investigation, including interviewing and collecting evidencecollecting evidence

5. Records investigation and review5. Records investigation and review

6. Closing conference6. Closing conference

7. Report writing7. Report writing

8. Referral for follow-up/enforcement8. Referral for follow-up/enforcement

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Considerations for Designing an Considerations for Designing an Inspection ProgramInspection Program

Facility Selection ProcessFacility Selection Process

Type, Level, and Frequency of InspectionsType, Level, and Frequency of Inspections

Thorough Understanding of Legal AuthorityThorough Understanding of Legal Authority

Training Program for Government Inspectors Training Program for Government Inspectors

Methods for Assuring the Quality and Reliability Methods for Assuring the Quality and Reliability of Data Collected During Inspectionsof Data Collected During Inspections

OTHER CONSIDERATIONS?OTHER CONSIDERATIONS?

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Self-Monitoring & ReportingSelf-Monitoring & Reporting Sources track their own compliance and record or report Sources track their own compliance and record or report

the results for government reviewthe results for government review Shifts the burden to the polluterShifts the burden to the polluter

Authorities must review how data was collected to ensure qualityAuthorities must review how data was collected to ensure quality

Provide more extensive information than can be obtained Provide more extensive information than can be obtained through periodic inspectionsthrough periodic inspections

Provide a mechanism for educating regulated community Provide a mechanism for educating regulated community about requirementsabout requirements

Criminal penalties for falsifying reportsCriminal penalties for falsifying reports

Information can be used to target inspections or as a basis Information can be used to target inspections or as a basis for enforcement actionsfor enforcement actions

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Self-Monitoring: Issues to ConsiderSelf-Monitoring: Issues to Consider

Cost – Cost – what will the cost and paperwork burden be to industry and what will the cost and paperwork burden be to industry and government?government?

Technology requirements – Technology requirements – is technology for monitoring is technology for monitoring available, affordable, accurate, reliable, and easy to learn how to available, affordable, accurate, reliable, and easy to learn how to operate?operate?

Data use – Data use – how exactly will enforcement officials use the data?how exactly will enforcement officials use the data?

Extent of requirements – Extent of requirements – should the source report all data or should the source report all data or just data that indicate a potential violation?just data that indicate a potential violation?

Public disclosure – Public disclosure – should the self-reported data be made should the self-reported data be made available to the public? available to the public?

Self-Certification – Self-Certification – should senior industry officials be required to should senior industry officials be required to certify that the facility is in compliance?certify that the facility is in compliance?

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Area Monitoring of Ambient ConditionsArea Monitoring of Ambient Conditions

Ambient Monitoring Ambient Monitoring Monitoring natural systems to determine existing Monitoring natural systems to determine existing

conditions conditions E.g., may indicate whether water quality is getting E.g., may indicate whether water quality is getting

better, worse, or not changing better, worse, or not changing

Remote Sensing Remote Sensing Gather visual data that can trigger in-depth Gather visual data that can trigger in-depth

inspectionsinspections Can use satellites or aircraft overflights Can use satellites or aircraft overflights E.g., can measure density, temperatures, and area of E.g., can measure density, temperatures, and area of

water dischargeswater discharges

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Citizen and Whistleblower ComplaintsCitizen and Whistleblower Complaints

Vital for detecting violations that occur within an Vital for detecting violations that occur within an organization or in an isolated localeorganization 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 Offer monetary reward for tips or for successful

prosecutionsprosecutions Educate public on ways to detect violations Educate public on ways to detect violations Educate public about their right to lodge complaintsEducate public about their right to lodge complaints Establish anonymous system to receive complaintsEstablish anonymous system to receive complaints

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EnforcementEnforcement

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What is Enforcement?What is Enforcement?

A set of actions governments or others take to A set of actions governments or others take to compel or encourage compliancecompel or encourage compliance

Overall strategy to establish expectations among Overall strategy to establish expectations among the regulated community about the negative the regulated community about the negative consequences that will follow noncomplianceconsequences that will follow noncompliance

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Goals for EnforcementGoals for Enforcement Address Current ViolationsAddress Current Violations

Resolve current environmental harms by enforcing against the Resolve current environmental harms by enforcing against the violatorviolator

Provide Specific DeterrenceProvide Specific Deterrence Enforcement action discourages violator from violating the Enforcement action discourages violator from violating the

regulation againregulation again Provide General DeterrenceProvide General Deterrence

Enforcement action against one member of the regulated Enforcement action against one member of the regulated community discourages noncompliance in the communitycommunity discourages noncompliance in the community

Level the Playing FieldLevel the Playing Field Ensure equity among industryEnsure equity among industry

Force Internalization of Environmental CostsForce Internalization of Environmental Costs Ensure that industry internalizes costs, leading to rational pricingEnsure that industry internalizes costs, leading to rational pricing

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Ensuring that Enforcement Deters Ensuring that Enforcement Deters Non-ComplianceNon-Compliance

Ideally, there should be:Ideally, there should be: High likelihood that violations will be detectedHigh likelihood that violations will be detected Swift and predictable responses to violationsSwift and predictable responses to violations Responses that include appropriate sanctionsResponses that include appropriate sanctions Perception among violators that these three elements Perception among violators that these three elements

are presentare present

You can balance some of these elements against You can balance some of these elements against each other (e.g., smaller likelihood of detection each other (e.g., smaller likelihood of detection with much higher sanctions)with much higher sanctions)

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Enforcement MechanismsEnforcement Mechanisms

Notice of violation / Warning of legal action Notice of violation / Warning of legal action unless problem is resolvedunless problem is resolved

Negotiated compliance agreementNegotiated compliance agreement Administrative actionsAdministrative actions Civil enforcementCivil enforcement Criminal prosecutionCriminal prosecution

Response must return violator to compliance and Response must return violator to compliance and discourage recidivism discourage recidivism

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Negotiated Compliance Negotiated Compliance AgreementsAgreements

Benefits: Benefits: Fewer resources required than for court actionsFewer resources required than for court actions Possible to explore creative solutionsPossible to explore creative solutions

When not to use settlements:When not to use settlements: When company would get undeserved benefitWhen company would get undeserved benefit When public will not accept a negotiated agreementWhen public will not accept a negotiated agreement

Crafting a settlement:Crafting a settlement: Settlements must have an enforceable dimensionSettlements must have an enforceable dimension

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Judgment vs. SettlementsJudgment vs. Settlements Benefits of Judgments:Benefits of Judgments:

High profile of court case is more likely to have High profile of court case is more likely to have deterrent effectdeterrent effect

Can be used to clarify lawCan be used to clarify law Necessary if violator will not settleNecessary if violator will not settle Judicial response can foster societal ethic that favors Judicial response can foster societal ethic that favors

the environment the environment

Benefits of Settlements:Benefits of Settlements: More time-efficient and potentially less costlyMore time-efficient and potentially less costly Require less documentationRequire less documentation Able to negotiate outcomeAble to negotiate outcome

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Monetary SanctionsMonetary Sanctions

Purpose: Purpose: Ensure no economic benefit from violating lawEnsure no economic benefit from violating law Send message to regulated community that violations Send message to regulated community that violations

will be punishedwill be punished

Factors Governing Fines and Penalties: Factors Governing Fines and Penalties: Economic benefit derived from violationEconomic benefit derived from violation Gravity of violationGravity of violation Prior compliance history of the facilityPrior compliance history of the facility Ability to payAbility to pay

2020

ExerciseExercise

Penalty CalculationPenalty Calculation

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Post-Enforcement Action Follow-upPost-Enforcement Action Follow-up

All enforcement actions require follow-upAll enforcement actions require follow-up Ensure the company is performingEnsure the company is performing Verify that schedule/timetable being followedVerify that schedule/timetable being followed Note that chronic violators need long-term scrutiny Note that chronic violators need long-term scrutiny

and inspectionsand inspections

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Cooperating as an Enforcement TeamCooperating as an Enforcement Team CollaboratorsCollaborators

Cooperation must be intra- and inter-agencyCooperation must be intra- and inter-agency

Technical Experts

Law EnforcementPolice, prosecutors, customs

Inspectors Attorneys

The PublicCitizens, watchdog groups, &

nongovernmental organizations

The JudiciaryImportant role in interpreting law &

imposing sanctions/penalties

Other ActorsOther Actors

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Coming Up NextComing Up Next

Module 1:Module 1: Building a Legal Foundation for Good Water Building a Legal Foundation for Good Water GovernanceGovernance

Module 2:Module 2: Promoting Compliance with Environmental Promoting Compliance with Environmental LawsLaws

Module 3:Module 3: Responding to Violations of Environmental Responding to Violations of Environmental LawsLaws

Module 4:Module 4: Designing Performance Indicators for Designing Performance Indicators for Environmental Compliance and Enforcement ProgramsEnvironmental Compliance and Enforcement Programs