EP '-"901/9-76- 003a
ECONOMIC LAW
ENFORCEMENT
The Judges, (detail American woodcut, 19th Century).
VOLUME I

OVERVIEW
             CONNECTICUT ENFORCEMENT PROJECT

           U.S. ENVIRONMENTAL PROTECTION AGENCY

                    SEPTEMBER, 1975

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This report has been reviewed by EPA and
approved for publication.  Approval does
not signify that the contents necessarily
reflect the views and policies of the
Environmental Protection Agency, nor does
mention of trade names or commercial pro-
ducts constitute endorsement or recommen-
dation for use.
Copies of this document are available in
limited quantities through the Connecticut
Department of Environmental Protection,
State Office Building, 165 Capitol Avenue,
Hartford, Connecticut, 06115.

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The Judges (detail)
John Andrew and Son (after W H  Drake)
American, 19th Century
Wood engraving
Courtesy Museum of Fine Arts, Boston. Ma.

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 EPA-901/9-76-003a
ECONOMIC  LAW
ENFORCEMENT
                  VOLUME I
                  OVERVIEW
Final Report Submitted Under Purchase Order #WB6990547A
by: The Connecticut Enforcement Project
   (Douglas Bateson, Volume Contract Officer)
   Hartford, Connecticut 06115
to: The U.S. Environmental Protection Agency
   Region I
   Boston, Massachusetts 02203
        September, 1975

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                          ECONOMIC
                       LAW ENFORCEMENT
                     VOLUME I - OVERVIEW
Preface  and Acknowledgements                               i

Table of Contents  (Volumes I - VI)                          v

An Introduction to Connecticut's Economic Approach to
        Environmental Law Enforcement                       2

Attachments:

   (A)  The Enforcement Act of 1973                         36

   (B)  Representative Economic Enforcement Regulations     41

   (C)  The Economics of Economic Remedies                  56

   (D)  Public Comment on Economic Law Enforcement in
        Connecticut                                         72

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   THE CONNECTICUT ENFORCEMENT PROJECT
Douglas Bateson          Glen Gross
Sandee Blechman          Kathleen Kores
David Bognar             Blanchie McCarthy
Peter Connolly           Robert Mosteller
Fred Dennehy             Mary Nason
William Drayton          Mildred Pevar
Deborah Pillion          Phillip Reed
Philip Florkoski         Steven Seidel
Sandi Foley              Donald Shepard
Donald Gogel             David Tundermann
Robert Gogel             James Usdan
James Gomes              Andrew Weissman

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                  PREFACE AND ACKNOWLEDGEMENTS
      Those charged with administering the large number of
environmental statutes enacted in the late 1960's and early
1970's quickly learned how essential effective, equitable law
enforcement tools were.  Without such tools they could not
force the inevitable few recalcitrants to comply; and, as long
as they could not do this, they could neither fairly demand
nor reasonably expect others to comply voluntarily.  Without
general voluntary compliance, environmental goals would not be
met and the regulators' administrative costs would soar.

      Connecticut's Department of Environmental Protection real-
ized in 1972, its first year of operation, that its enforcement
responsibilities far outstripped the tools available to it.  The
Department created a special task force to think through and
design the tools it needed; and the General Assembly, after
considering and debating these recommendations at length, enacted
the Environmental Enforcement Act of 1973 authorizing the
Department to use the tools suggested by the task force.  The
U.S. Environmental Protection Agency, recognizing the value of
the proposed approach as a model that would help other environ-
mental agencies, funded the substantial work required to develop
and implement this new system in Connecticut.  The Connecticut
Enforcement Project (CEP), a task force of consultants and mem-
bers of the Department, was given responsibility for the design
and implementation of this work.

      As is typically the case with any significant social
innovation, the development and introduction of this new approach
to enforcement required the work and active support of many people
Three Commissioners of both parties have been involved.  Dan
Lufkin saw the need for effective enforcement and realized the
limitations of the existing tools.  He gathered the resources to
develop the initial ideas, supported them, and saw them through
to legislative enactment.  Douglas Costle helped define the
enforcement problem and the new approach, gathered together the
funds and people to turn the legislation into a working program,
carefully reviewed the proposed program personally, and launched
the first regulations,  Joseph Gill, who succeeded Douglas Costle
in 1975, reviewed the program afresh and saw its program develop-
ment work through to completion.

      Other members of the Department's top management under
these different Administrations played key roles.  Eckhardt C.
Beck supervised and supported the CEP's work closely as Deputy
Commissioner in the Costle Administration; John Curry, Special
Advisor to Commissioner Gill and a true professional who has
served Connecticut since the Great Depression, immediately knew
the right questions to ask and, along with Deputy Commissioner

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                             11
Melvin Schneidermeyer, contributed critically to the program's
implementation.

      Henry Seal, the Department's Director of Air Compliance in
the Costle and Gill Administrations and earlier a lawyer in that
Unit, has always had an especially close relationship with the
Enforcement Project.  He was one of the three-person task force
that initially analyzed what was needed and that drafted the
Enforcement Act.  His Unit bore the brunt of being the first to
install the new tools, and he and his staff worked long and hard
to make sure they were fully thought through.

      Henry Seal's chief associates in Air Compliance Enforcement,
Gerald Brodsky and James Vickery, contributed a great deal of
their considerable skill, their time and energy, and their
patience.  In particular, James Vickery did or supervised almost
all of the engineering work required, notably including the
development and verification of the cost curves used to determine
economically accurate assessments.

      The CEP is indebted to a great many others in and out of
the Department:  Theodore B. Bampton, Deputy Commissioner; Robert
Taylor, C. Zell Steever, and Ralph Adkins, Program and Administra-
tive Directors; and Mary Ann Callihan, Doreen Dryer, Michael
Harder  (who did the engineering work for the Water Compliance Sub-
Project) , James Murphy, Beverly Mockus and the many other members
of the Department who helped us and tolerated our many demands;
Kenneth Willis, who provided offices for six months while the
State Public Works Department could do nothing; Charles McKinney
and the staff of the Coastal Area Management program, for generous
help during the Project's last months; the distinguished members
of the Connecticut bar who reviewed the Project's work so care-
fully as pro bono members of the Project's Legal Advisory Council;
the many outside economists, management experts, and legal scho-
lars who reviewed our work,-notably including Professors William
Baumol of Princeton, Ralph Brown and Marvin Chirelstein of Yale
Law School, Andrew Gold of Trinity College, Henry Hansmann of
Pennsylvania. Law School, Daniel Saks of Michigan State University,
Thomas Nelson of the University of Connecticut Law School,
Richard Stewart of Harvard Law School, Daryl Wycoff of Harvard
Business School, and Richard Zeckhauser of Harvard's Kennedy
School; Russell Brenemann, one of Connecticut's leading environ-
mental lawyers, who offered wise advice throughout the Project:
the Connecticut Business and Industry Association and other mem-
bers of the state's business community who studied the proposed
regulations closely and worked with the Project staff to define
and strengthen them; and Connecticut's public interest, conserva-
tion, and environmental groups who also studied and strengthened
the program and who provided it with critical support.

      David Tundermann, Assistant Commissioner for Legal and
Governmental Affairs from the time the Department was established
until March, 1975, and now a member of the staff of the President's
Council on Environmental Quality, was the person charged with

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                               Ill
primary responsibility for the program within the Department.
He brought the original task force that prepared the initial
draft of the Enforcement Act of 1973 together, represented the
Department before the General Assembly as it considered these
proposals, and then prepared the funding proposal submitted to
the U.S. Environmental Protection Agency.  Once the CEP was
created, he represented the Department on the Project.  He
helped develop the program ultimately adopted, introduce the
Project's proposals in and outside the Department, run political
and administrative interference, and supervise such research
work, chiefly regarding legal problems, as his substantial on-
going commitments as Assistant Commissioner allowed.  After he
left the Department and before joining the Council on Environ-
mental Quality, he assumed responsibility for finishing the
design and for helping the Department begin to implement the
operating and maintenance sub-project.

      William Drayton, a lawyer, economist, and management con-
sultant with McKinsey and Company, conceived many of the
innovations embodied in the Connecticut approach and was respon-
sible for managing the CEP staff.  Drawing on prior consulting
experience and his special interest in the design of regulatory
and incentive systems, he conceived, among other ideas, of the
use of capital budgeting economics as a standard for remedy-
setting, of the approach's gradually escalating multi-step
response to noncompliance, and of the flexible reserve escrow
device.  He was a member of the original task force that
formulated the Enforcement Act; he drafted the Section 602/603
regulations, which served as the prototype for most of the CEP's
other regulations; he helped guide and quality control the work
of other members of the project; and he either wrote, rewrote,
or edited all of this final report.  Temporarily on leave from
McKinsey, he is currently a visiting professor at Stanford Law
School.

      Donald J. Gogel helped manage the Project during its early
and middle stages, surviving a commute from Harvard Law School
for most of this period to do so.  In addition to„helping with
overall program development and implementation, he was responsi-
ble for managing the development and implementation of the
prototype CEP program in the Air Compliance Unit.  Phillip Reed
had lead responsibility for developing the CEP program for the
Water Compliance Unit, and he assumed many of the general manage-
ment responsibilities Donald Gogel had to give up when he left
the Project to take up prior commitments in California.

      The other members of the CEP staff (and their chief areas
of responsibility) were Douglas Bateson (Air Compliance and
managing production of the final report), Sandee Blechman (Water
Compliance), David Bognar (graphics), Peter Connolly (Water
Resources),  Fred Dennehy (legal), Deborah Pillion (graphics),
Philip Florkoski  (programming and Air Compliance),  Sandi Foley

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                              IV
(secretarial), Robert Gogel (Water Compliance), James Gomes
(Water Resources), Glen Gross (Water Resources and legal),
Kathleen Kores (administrative and secretarial), Blanchie
McCarthy (legal secretarial), Robert Hosteller (Operations
and Maintenance and legal), Mary Nason  (administrative and
executive secretarial), Mildred Pevar  (legal/executive
secretarial), Steven Seidel (Air Compliance), Donald Shepard
(formulae),  James Usdan (Water Compliance), and Andrew Weissman
(legal and Operating and Maintenance).

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                              V
                  ECONOMIC  LAW ENFORCEMENT
                       TABLE OF  CONTENTS
VOLUME I        ECONOMIC ENFORCEMENT  PROGRAMS:   OVERVIEW

     AN INTRODUCTION TO CONNECTICUT'S ENFORCEMENT APPROACH       2

     ATTACHMENTS
       A.  The Enforcement Act of  1973                           36
       B.  Representative Economic  Enforcement  Regulations       41
       C.  The Economics of Economic  Remedies                     56
       D.  Public Comment on Economic Law  Enforcement in
           Connecticut                                            72


VOLUME II       STRENGTHENING ENVIRONMENTAL  LAW ENFORCEMENT:
                AIR POLLUTION
     PART I.    USING ECONOMIC CIVIL ASSESSMENTS                  1-1

       Chapter I    Using Economic Civil Assessments to Ensure
                    Compliance with Emissions  Standards and
                    Abatement Orders                              1-2
       Chapter II   Using Economic Civil Assessments to Ensure
                    Compliance with Progress Report  Requirements 1-12

     PART II.   BASELINE PROFILE                                  II--1


       Preface                                                    II-2
       Chapter I    General Enforcement                           II-8
       Chapter II   Order Overruns                                11-27
       Chapter III  Most Difficult Cases                          11-39
       Conclusion                                                 11-47
       Appendix                                                   11-48

     PART III.  CALCULATING ECONOMIC REMEDIES                     III-l

       Chapter I    Calculating Assessments                       ill-2
       Chapter II   Determining the Cost of Compliance            111-12
       Chapter III  Handling Inflation                            111-16
       Chapter IV   Adjusting for Individual Income  Tax Rates     111-18
       Chapter V    Using the Cost of Capital                     111-22

     PART IV.   CIVIL ASSESSMENT REGULATIONS                      IV-1

       Section 22a-6b-602 - Violating Emissions Standards         IV-2
       Section 22a-6b-603 - Violating the Terms of an Order      IV-6
       Section 22a-6b-601 - Violating Progress Report
                            Requirements                          IV-9

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                               VI
     PART V.
       Chapter
       Chapter
       Chapter
       Chapter
       Chapter
       Chapter VI

       Chapter VII
            A.
            B.
            C.
            D.
            E.
 OPERATING MANUAL FOR THE APPLICATION OF CIVIL
 ASSESSMENTS

I    The Connecticut Enforcement Program
II   How to Apply Section 602 Assessments
III  How to Apply Section 603 Assessments
IV   How to Apply Section 601 Assessments
V    How to Conduct Hearings in Civil Assess-
     ment Cases
     How to Use Surety Devices As Part  of  the
     Total Enforcement Program
     How to Use and Update Tools Employed  in
     Levying Civil Assessments
 Calculating the Cost of Compliance
 Determining the Applicable Cost of Capital
 Using Inflation Indexes
 Estimating the Source's Income Tax Rate
 Operating the Wang Calculator
       Chapter I


       Chapter II

       Attachments
     The Impact of the Emissions and  Order
     Compliance Regulations on Administrative
     Costs
     The Impact of the Progress Report  Regu-
     lations on Administrative Costs
V-l

V-5
V-7
V-27
V-35

V-44

V-52

V-61
V-62
V-128
V-149
V-151
V--153
     PART VI,   REDUCING THE ADMINISTRATIVE COST  OF  ENFORCEMENT  VI-6
VI-4

VI-12
VI-16
VOLUME III
     PART I.
     PART II,
 STRENGTHENING ENVIRONMENTAL LAW  ENFORCEMENT;
 WATER POLLUTION	

 USING ECONOMIC CIVIL ASSESSMENTS
       Chapter I
       Chapter II
     Using Economic Civil Assessments  to Stop
     Illegal'Discharges and  to  Enforce Water
     Pollution Abatement Orders
     Using Economic Civil Assessments  to Enforce
     Water Discharge Monitoring Requirements
 BASELINE PROFILE
       Chapter I
       Chapter II
       Chapter III
       Chapter IV
     Introduction
     Orders
     Permits
     Monitoring Reports
     PART III.  CALCULATING ECONOMIC  REMEDIES
       Chapter I
       Chapter II
       Chapter III
       Chapter IV
       Chapter V
     Calculating Assessments
     Determining the Cost  of  Compliance
     Handling Inflation
     Adjusting For Individual Income Tax Rates
     Using The Cost of Capital
1-1



1-2

1-21

II-l

II-2
II-7
11-45
11-49

III-l

III-2
111-13
111-24
111-26
III-2S

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                            vii
     PART IV.
CIVIL ASSESSMENT REGULATIONS
       Section 22a-6b-502 - Discharging Without A Permit
       Section 22a-6b-503 - Violating  The  Terms of An Order
       Section 22a-6b-504 - Violating  Monitoring Report
                            Requirements

     PART V.    OPERATING MANUAL FOR THE APPLICATION OF CIVIL
                ASSESSMENTS

       Chapter I    The Connecticut Enforcement Program
       Chapter II   How to Apply Section 502  Assessments
       Chapter III  How to Apply Section 503  Assessments
       Chapter IV   How to Apply Section 504  Assessments
       Chapter V    How to Conduct Hearings  in Civil Assess-
                    ment Cases
       Chapter VI   How to Use and Update  Tools Employed in
                    Levying Civil Assessments
            A.  Calculating the Cost of Compliance
            B.  Determining the Applicable Cost of Capital
            C.  Using Inflation Indexes
            D.  Estimating the Source's Income Tax Rate
            E.  Operating the Wang Calculator

     PART VI.   THE IMPACT OF ECONOMIC CIVIL  ASSESSMENTS ON
                THE ADMINISTRATIVE COSTS OF ENFORCEMENT
IV-1

IV-2
IV-12

IV-21
                                                   V-l

                                                   V-5
                                                   V-7
                                                   V-30
                                                   V-44

                                                   V-61

                                                   V-71
                                                   V-7 2
                                                   V-S7
                                                   V-108
                                                   V-110
                                                   V-112
                                                   VI-1
VOLUME IV
     PART I.
     PART II.
STRENGTHENING ENVIRONMENTAL LAW ENFORCEMENT:
ILLEGAL FILLING	

USING ECONOMIC CIVIL ASSESSMENTS

SURVEY OF COASTAL FILL AND STRUCTURES  VIOLATIONS
       Chapter I
       Chapter II
       Chapter III
       Chapter IV
    Introduction
    Coastal Structures
    Coastal Fill
    Conclusion
     PART III.  CALCULATING ECONOMIC REMEDIES

       Chapter I    Calculating Economic Assessments
       Chapter II   Determining the Cost of  Compliance
       Chapter III  Handling Other Variables
     PART IV.
CIVIL ASSESSMENT REGULATIONS
       Section 22a-6b-411 -

       Section 22a-6b-412 -
       Section 22a-6b-413 -
            Failure to Apply For A Permit
            To Place Coastal Fill
            Coastal Fill Without A Permit
            Coastal Fill Not in Compliance
            With the Terms of an Order  or
            Permit
1-1
II-3
II-4
II-7
11-11

III-l

III-2
III-9
111-21

IV-1
IV-2
IV-8
                                                                   IV-18

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                           Vlll

     PART V.    OPERATING MANUAL FOR THE  APPLICATION OF CIVIL
                ASSESSMENTS                                       V-l

     PART VI.   THE IMPACT OF ECONOMIC  CIVIL ASSESSMENTS ON
                THE ADMINISTRATIVE  COSTS  OF  ENFORCEMENT          vi-1
VOLUME V        ENSURING PROPER OPERATION AND MAINTENANCE:
                THE ENVIRONMENT'S NEXT  PROBLEM
     INTRODUCTION                                                 ii

     PART I.    A PROGRAM TO ENSURE  PROPER OPERATION AND
                MAINTENANCE                                       1-1

       Chapter I    O&M Enforcement  Problems                      1-3
       Chapter II   A Proposed Enforcement Program for O&M:
                    Administrative Tools  and  Economic Remedies   I--15
       Conclusion                                                 1-31
       Appendix:    Model Stipulation                             1-33

     PART II.   CALCULATING ECONOMIC REMEDIES FOR IMPROPER
                OPERATION AND MAINTENANCE AND FAILURE TO
                MONITOR     •                                •      IIr-1

       Chapter I    Calculating Assessments                      II-2
       Chapter II   Determining the  Costs of  Compliance          n-4
       Chapter III  Handling Inflation                            11-12
       Chapter IV   Adjusting for Taxes                           11-13
       Chapter V    Using the Cost of Capital                    11-16
       Chapter VI   Determining the  Useful Life  of Equipment     11-20
       Appendix:    Cost Curves for  Monitors                      11-22


     PART III.  OPERATION AND MAINTENANCE REGULATIONS            III-l

       Sections 19-508-100 to 19-508-105  - Operation and
                            Maintenance Standards                III-3
       Section 22a-6b-611 - Failing  to Operate and Maintain
                            Properly                             111-30
                Appendix: - Economic Appendix                    111-52
       Section 22a-6b-612 - Operating Without Operation and
                            Maintenance Permit                   111-61
       Section 22a-6b-613 - Failing  to Monitor                   111-75
       Section 22a-6b-614 - Violating a Monitoring Timetable     111-91


VOLUME VI       LEGAL ISSUES

     INTRODUCTION                                                 i

     PART I.    CONSTITUTIONAL ISSUES                             1

       A.  Delegation of Judicial Authority                      2
       B.  The Civil/Criminal Distinction (I)                     20
       C.  The Civil/Criminal Distinction (II)                   37

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                        IX
  D.  Self-Incrimination  (I)                                  44
  E.  Self-Incriraination  (II)                                 51

PART II.   STATUTORY ISSUES                                   73

  A.  Statutory Authority and Rules of Construction           74
  B.  Cost of Compliance As The Basis For Civil
      Assessments                                             80
  C.  Cost of Capital                                         88
  D.  Judicial Review of Formulae                             93
  E.  Deferring the Calculation of Civil Assessments         101
  F.  The Interpretation of "Amount" as "Rate"               117

PART III.  THE ASSESSMENT PERIOD ISSUE                       122

  A.  Assessments for Past Delay                             123
  B.  Assessments During Litigative Delay (I)                144
  C.  Assessments During Litigative Delay (II)               154
  D.  Due Process and the Assessment Period                  175

PART IV.   PROCEDURAL AND MISCELLANEOUS ISSUES               183

  A.  The Warning Letter                               ,      184
  B.  Deferred Hearing and Partial Final Order               204
  C.  Water Compliance:  Permit Liability                    212
  D.  O&M Requirements:  Scope of Review                     222
  E.  O&M Requirements:  Imposition of Class-Wide Orders     238
  F.  O&M Requirements:  Sanctions Available to Hearing
                         Officers                            250

APPENDIX

  A.  The Enforcement Act                                    272
  B.  Waukegan v. Pollution Control Board                    291
  C.  H. Goldschmidt, "An Evaluation of the Present and
      Potential Use of"Civil Penalties as a Sanction by
      Federal Administrative Agencies"                       300

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      AN INTRODUCTION TO
CONNECTICUT'S ECONOMIC APPROACH
              TO
 ENVIRONMENTAL LAW ENFORCEMENT

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                     AN INTRODUCTION TO

      CONNECTICUT'S ECONOMIC APPROACH TO ENVIRONMENTAL

                       LAW ENFORCEMENT
     Connecticut's Department of Environmental Protection is
now implementing a new economic approach to enforcement.  Several
of the innovations Connecticut is demonstrating are likely to
have significant value for other enforcement programs — in and
out of the environmental field.  The Connecticut model

     *  provides an economic standard - how much a violator
        has saved by not coming into compliance - for deter-
        mining remedies that are

           - just large enough to provide effective
             incentives

           - no larger than the unjust enrichment
             violators realize from noncompliance

           - fitted case by case to (1) the size of
             the savings from noncompliance and (2)
             the duration of the period of non-
             compliance

           - practicably useable because based on
             clearly defined, readily measurable
             criteria and therefore (1) objective,
             not discretionary, and (2) demonstrably
             equitable

           - easy and inexpensive to administer

     *  allows program administrators to avoid having to
        choose between the two extreme and generally in-
        effective responses to noncompliance typically now
        available — jawboning/extending orders (no real
        bite)  and going to court (costly, slow, and un-
        certain) ; it provides an inbetween series of quick,
        low-cost responses with escalating economic impact.

     This economic approach to enforcement has been a success so
far.  The first few cases to become subject to this new approach,
all companies with outstanding histories of noncompliance, experi-
enced dramatic performance turn-arounds.  The Department obtained
these results simply by sending a warning letter accompanied by
a clear explanation of what liability for continued noncompliance
would be.  No assessments were necessary. -This early experience
confirms Connecticut's expectation that its economic enforcement

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approach will not only greatly speed compliance, but that it will
achieve significant reductions both in the number of cases requir-
ing enforcement action and in the administrative cost required per
case.

     The Department's new enforcement program has won broad
public support and, probably more important, business acceptance.
Academic experts, the press, and Connecticut's environmental and
public interest groups supported the program strongly.  The
Connecticut business community, after close scrutiny, has not
opposed this strengthening of environmental law enforcement even
though it has opposed (and successfully blocked) other Department
programs during the same period.  The equity of the program and
the fact that it is based on familiar, basic business economics
both contributed to this acceptance.  So did the realization that
taxing away the savings of noncompliance would protect the law-
abiding majority of companies from the unfair competitive ad-
vantage now enjoyed by scofflaws.

     This volume provides a brief, summary overview of the work of
the Connecticut Enforcement Project  (CEP).  It begins by explain-
ing how Connecticut's two major innovations, economic remedies and
a wide range of effective administrative responses short of going
to court, work.  It then summarizes the application of these
tools:  it reviews the enforcement problems that led to their
development; it describes how they have been fitted to the parti-
cular problems of the Department's Air, Water Compliance, and
Water Resources (coastal filling, wetlands, etc.) programs; and
it outlines how they can be used to enable environmental regula-
tors to get a handle on the generation of enforcement problems
they are now having to spend more and more time confronting —
ensuring that the control facilities installed with such effort
and cost in recent years are properly operated and maintained.
This volume concludes with several brief attachments:  a copy of
the relevant provisions of the Enforcement Act; copies of repre-
sentative CEP regulations; a summary of the economics used in
calculating economic remedies; and some of the most important
testimony submitted in writing at the time of the initial CEP
Public Hearings, supplemented by several pages of representative
press comment.

     This summary volume is followed by five detailed back-up
volumes:   one each for the Air, Water Compliance, Water Resources,
and Operating and Maintenance enforcement applications developed
by the Project and a final, sixth volume that covers the legal
analysis underlying the design of these programs.


          ECONOMIC ENFORCEMENT:  TWO CRITICAL TOOLS

     The Connecticut Enforcement Project has developed two inno-
vations that could have wide application both within the Depart-
ment of Environmental Protection and beyond:  economic remedies
and a series of gradually escalating responses to noncompliance
that have economic bite but that do not require going to court.

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ECONOMIC REMEDIES

       Regulation is typically required when the public decides
that a class of persons must do something that those people other-
wise would not do because they feel it is not in their economic
interest.  Very few of the people who make asphalt would in-
stall baghouses (huge filters) on their batching plants unless
required to do so.  Such an investment may well cost $50,000
and then require $13,500 a year to operate and maintain.  For
this expenditure the batching company gets no revenue whatever;
it does not recoup its costs, let alone make a profit.  Naturally,
the company would much prefer to spend its money on a profit-
making project.  This preference is the source of most enforce-
ment problems.

       Economic remedies remove the economic incentive to delay
or to avoid compliance.  They do so by, in effect, guaranteeing
that those who comply will achieve a return on their investment
equal to the return they could achieve on an equal cost commercial
investment.  This guaranteed return is the saving of not having
to pay the economic assessments imposed by the State for non-
compliance.  For every month that the asphalt batching company
does not install a baghouse, it becomes liable to an economic
assessment equal to the value of that month's delay, roughly
$1666.

       This charge is calculated using the same formula that
businessmen use to evaluate alternative investment opportunities,
the capital budgeting formula.  The costs of the project are
estimated year by year over the project's life; these estimates
are adjusted for taxes and inflation; the resulting year-by-year
expenditure figures are then brought to a present value; and,
finally, a flat, monthly rate that will amortize the costs of
the project (including lost profits at the industry's average
cost of capital rate) is determined.   (Attachment C gives a full
explanation, illustrated by several examples, of these calcula-
tions and their underlying mathematics.)

       Such economic assessments are not effluent charges.  They
accept the regulatory framework set forth in existing State and
Federal law — that performance standards are set by legislation
or regulation and that sources are required to comply with those
standards.  Their objective is to remove the powerful economic
incentives that now work to discourage regulatees from complying.
While this approach to regulation is not the approach economists
would ideally prefer (because it forces sources to invest with-
out regard to the particular costs and benefits of their doing
so), it is both (1)  practical and easily understood, and  (2)
the law.  And, in any case, there is generally a rough correla-
tion between the size of a source's impact on the environment
and what it must pay to lessen this impact to conform to publicly
legislated standards.

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      The remedies calculated by the economic assessment formula
do more than neutralize existing disincentives to compliance;
they make compliance sufficiently attractive that the economically
rational businessman will want to comply — promptly.  They make
compliance a good business investment because an investment in
abatement ensures complying companies savings (not having to pay
these assessments) as great as the income generated from an equal
cost, attractively profitable investment.  In other words, com-
panies that comply are guaranteed a double-negative rate of return
on abatement investments equal to the rate of return they are ob-
taining on investments they have recently chosen to make.  (In
fact, the return on their investment in abatement is much more
secure than the usual commercial investment; a monthly payment due
the government is not subject to changes in market conditions,
consumer tastes, or the host of other risks associated with com-
mercial investments.)

      Economic remedies are fitted to the facts of each case.
The larger the benefits of noncompliance are, the larger the
assessment will be.  Similarly, the longer the delay in coming
into compliance, the larger the forfeiture becomes.  In other
words, any enforcement system whose incentives are calculated
according to this sort of economic criteria can be sure its in-
centives will always be just large enough to make compliance pay.

      Using such criteria will also ensure that the size of such
incentives will not be unfair or excessive.  Economic remedies
will always be just large enough to take away the economic bene-
fits of noncompliance and no larger.


      Remedies That Are Useable
      Because Equitable and Objective

      Statute books bristle with an impressive array of penalties
for environmental infractions.  They are, however, actually
employed rarely, and then only in a limited and erratic manner.
There are several basic reasons:

      *  Available remedies are generally too severe and,
         consequently,they are not used.

            - 'Injunctions are rare; enforced injunctions
               even more so. Administrators, prosecutors,
               and the courts are all reluctant to force
               plants to close given the attendant severe
               economic losses to the owners, their workers,
               and local tax revenue.

               Remedies that carry with them a criminal
               stigma also seem excessive in environmental
               cases, and both prosecutors and courts
               consequently shy away from their use.

-------
      *  The laws that authorize these huge penalties almost
         never provide clear and practically useable criteria
         for determining individual assessments.  This lack
         of guidance presents prosecutors and courts with a
         dilemma, especially in technically complex environ-
         mental suits, that they are often ill-prepared to
         handle and that they consequently either try to
         avoid or that they handle with great, often ex-
         cessive caution.

      Tying assessments to an economic standard should overcome
most of these inhibitions.  Connecticut's economic remedies are,
as we have seen, just big enough to ensure the legislature's
regulatory objectives will be achieved, and no bigger.  They
entirely avoid the massive secondary effects of the injunction.
They merely tax away the benefits noncomplying firms have ap-
propriated to themselves by ignoring the law.  Removing these
benefits has the useful additional effect of protecting comply-
ing competitors from being put at an unfair disadvantage.  Al-
though the economic criteria for calculating incentives that
Connecticut uses in its civil assessments can be used in setting
criminal as well as civil remedies, they fit especially well
with the rapidly developing use of civil penalties; and, to the
extent they are used with civil assessments, would have no
criminal stigma.

      The size of the economic remedy is likely to be accurate
in fact as well as in theory.  Connecticut guarantees those sub-
ject to its economic civil assessments a right to a correction
hearing after they have come into compliance and can present
vouchers to document actual costs.  Since the costs used to cal-
culate the assessments are easily measurable, and in fact are
generally already routinely measured and recorded by most bus-
inesses, it will be easy for those subject to regulation success-
fully to challenge overassessments should they occur.  Any such
overassessment would be refunded with interest at the same cost
of capital rate used to calculate the assessment in the first place.

      Administrators and courts consequently should have sufficient
confidence in the grounds for, and the reliability of  economic
remedies to be willing to use them promptly when needed.

      Administratively
      Useable Remedies

      How hard will it be to determine what the correct economic
remedy should be?  This is a critical question because, if it is
too difficult, neither enforcement officials nor the courts will
use economic remedies — no matter how much confidence they have
in the approach.  Existing staffs must be able to make this econ-
omic approach work easily, without having to undergo extensive
training.

      Shortly after it came into being, CEP tested how long it
would take Air Compliance engineers to make accurate cost estimates.

-------
Engineers were  given actual case files and  asked to estimate
within 20 percent  accuracy what it would cost the  source to come into
compliance,  specifically breaking out installed equipment costs
and expected annual operating and maintenance expenditures.  Some
cases were relatively simple, others complex.   Some folders had
only the materials that would be available  after an initial field
inspection;  others had all the materials that were in the folder
at the time  that either the engineering report  or plans and spec-
ifications were submitted to the Department.  In every case, CEP
knew what the case's actual costs of compliance were and conse-
quently was  able to control for accuracy.

      The results of the test were most encouraging.  Department
engineers demonstrated that they could make accurate estimates of
the costs of compliance in anywhere from one to sixteen hours
(depending on the complexity of the case and whether or not engin-
eering work  done by the source was in the case  file). (A survey
of private consulting engineers in Connecticut  confirmed the re-
sults of this test.  The private engineers  consistently required
somewhat less time to make their estimates  than did the DEP staff,
probably because they have to estimate costs for their clients
regularly whereas Department engineers are  not  otherwise required
to make cost estimates.)

          Without Special Training or Aids, DEP Air Compliance Engineers
          W£>re~Able to Estimate Costs Accurately in i_ to 1_6 Hours per Case

              Asphalt Batching Case - Hours Required For Costing

b
M
Estimating after
Field Inspection
1 \77777X
4

1 3
Confirming Costs Confirming Costs
from Engineering from Plans and
Reports Specs
1
Checking
Vouchers after
Compliance
            Complex Metal Processing Case - Hours Required For Costing

16
12
j|

8

5
%/fi/
Estimating after Confirming Costs
Field Inspection from Engineering
Reports
e

4 2
Confirming Costs Checking
from Plans and Vouchers after
Specs Compliance
         KEY
                  - DEP Test
                                  - Private estimates
      In other  words,  if nothing was done  to simplify the Depart-
ment's job,  it  would take five hours to  estimate the costs of
compliance accurately in the typical Air Compliance case.  Other

-------
steps, chiefly determining the appropriate cost of capital and
executing a series of calculations by hand, could take another
two hours.  As long as increased voluntary compliance makes it
necessary to impose economic assessments in only a limited number
of cases per year, this administrative burden would probably be
acceptable.

      The CEP has developed a series of tools that cut the time
required by 80-90 percent:

      *  Estimating the costs of compliance, which would
         otherwise take five hours, has been reduced to
         the simple step of reading reliable estimates
         from one or more cost curves, a process that
         requires only 10-20 minutes.

      *  Determining the cost of capital and other
         necessary bits and pieces of information has
         similarly been reduced to the quick and simple
         task of consulting a few tables.

      *  Translating these bits of cost information into
         a measure of the economic benefits of noncompli-
         ance and thus the assessment is done with a simple
         mathematical program useable on a simple desk
         calculator that automatically adjusts for the
         impact of taxes and inflation and that does all
         the calculating required in seconds.

      Clearly, the first of these time-saving devices, the cost
curves, is the most important.  Starting from basic, known vari-
ables — the flow rate of waste gas and the type of air pollu-
tion control equipment, or the flow and nature of water pollu-
tant (s), Department staff need only identify the point on the
relevant curves for any given flow rate in order to be able
to read off a reliable cost estimate.  Continuing the case of
the asphalt batching company once again, the relevant cost
curves for particulate control using baghouses (the appro-
priate control methodology for asphalt batchers)  follows:

-------
            Particulate Control Costs - Baghouse
                                                   KEY
                                                 	Installed Costs -
                                                     EPA Cost Curve

                                                   *  Actual Conn. Cases

                                                	 - 0 & M Costs -
                                                     EPA Cost Curve

                                                   •  Actual Conn. Cases
                  .4
1.6
6.2
25.0
100.0
                        Volume of Air
              (in Thousands of Cubic Feet per Minute)

       Source:  EPA Publication AP-51, pp.  164, 175  (Dec.  1972);
              Connecticut Tax and Registration Forms.
Assume that  a  Department inspector has  reported that the asphalt
batcher's  plant  emits 20,000 cubic feet per  minute of particulate-
laden air  that must be processed through control equipment.  Read-
ing up from  this CFM level to the curves,  a  Department engineer
would determine  that the batching company would have to pay
$50,000 for  installed equipment costs and $13,500 per year in
operating  and  maintenance expenses.  These curves, originally
developed  by EPA,  have been confirmed by actual Connecticut case
experience,  as the chart indicates.   (A complete set of curves for
most pollutants  and control approaches  in Air will be found in
Part V of  Volume II;  Part III of Volume III,  explains a similar
time-saving  method of estimating available for the Water Compliance
program area.)

      With these three aids, all an engineer need do to determine
the right  economic assessment for a particular case is (1) put the
small tape cassette containing the assessment formula in a desk
calculator,  (2)  type his estimates of the installed equipment
costs, the annual  operating and maintenance  expense, and the cost
of capital (read off the appropriate cost curves and tables) into

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                                10
the calculator, and  (3) press the machine's "go" button.  The calcu-
lator will produce the correct monthly charge after only a few
seconds.  The process is simple and quick.  It can also be a useful
negotiating aid.  "And, now, Mr. Titanic, let's see how much we will
have to charge you if you fall further behind your compliance sche-
dule. ..."

      With the exercise of a little care to avoid potential legal
problems, using economic assessments can be simplified even further.

      The initial test of the time it took Department staff to
make reliable cost estimates demonstrated that delaying when the
estimate has to be made (or defended) until after the source pro-
vides either detailed engineering information or actual expense
vouchers can cut the amount of time required to a small fraction
of what it would otherwise be.  The Department's civil assessment
regulations provide two ways the Department can avoid the extra,
unnecessary administrative cost of having to make early costs
of compliance estimates.

      Probably the most important method is to:  (1) make a
rough,  good-faith estimate, and (2) if the source feels the^ rough esti-
mate is too high, leave the amount assessed unchanged but collect
only what seems reasonable to the source until such later time
as either the source comes into compliance and presents expense
vouchers or sufficient information is available to make a quick
estimate reasonably reliable.  Connecticut's civil assessment
regulations specifically give the Department discretion to collect
the amounts assessed in whatever installments it thinks best.

      The Connecticut regulations provide two further devices
for avoiding a premature deadline for estimating the costs of
compliance.  The hearing officer can postpone any hearing regard-
ing the accuracy of the Department's initial estimates for a
reasonable period of time if he determines that information im-
portant to an accurate assessment is not available at the time
but will become available later.  The risk of court interven-
tion in such cases is limited because the source is guaranteed
(1) a special correction hearing at the time it comes into com-
pliance and can present vouchers to document its actual costs and
(2) that any overassessment will be repayed with interest.  Within
limits,  courts are likely to defer to this available administra-
tive remedy.

      In sum, economic assessments can be used relatively easily
and with very little administrative cost in most cases.  There
may be  a small number of cases for which cost curves or other
aids have not been developed and/or in which it may not be appro-
priate  to delay making a detailed, final estimate of the costs of
compliance.  However, the cost of handling even these few cases,
probably on average roughly a person-day, is manageable.

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                                11
      In any case, even after taking the added administrative
costs of estimating and calculating economic remedies into account,
Connecticut will experience major net administrative savings from
the introduction of its economic enforcement system.  These sav-
ings are discussed further in a few pages.


      Using Economic
      Remedies	

      Economic assessments can be used to determine  (1) the remedy
requested of a court in a civil or criminal action,  (2) the size
of a bond, escrow, or other surety liability or forfeiture im-
posed, and/or (3) the amount of an administratively imposed civil
penalty.

      Economic remedies are much better suited to civil than
criminal cases.   They charge a delinquent source what the source
has saved by not complying — but no more.  That is, economic
remedies make no provision for punishment.  (They might nonethe-
less still be useful in criminal cases as a means of establishing
a "floor.")  On the other hand, they provide exactly what is
needed in a civil action:  an exact measure of the incentive
necessary to induce the source to take remedial action.

      Further, economic remedies provide a missing element that
should make widespread use of administratively-imposed civil,
financial, incentives possible^Widespread use of economic reme-
dies by regulatory agencies would be a major breakthrough in
administrative law enforcement.  Such a tool would allow agencies
to assess scofflaws for whatever benefit they derive from delin-
quency with reasonable certainty and without delay.  This effec-
tiveness would cause much of the delinquency now experienced to
disappear.

      Now it is  all too easy'for the minority who actively seeks
to avoid or delay compliance to do so.  Despite a significant
number of seriously delinquent cases, especially in the Water
Compliance and Water Resources areas, since 1971 Connecticut's
Department of Environmental Protection has been unable to get the
courts to impose monetary penalties of any kind and able to get
only five injunctions in any of the key enforcement areas.*  The
ease with which the recalcitrant minority are able to ignore the
law, of course,  has a direct impact on how many others comply
voluntarily — and to what degree and how quickly they do so.

      Because administrative agencies have been seriously and
persistently frustrated by this inability to respond surely and
quickly to recalcitrants, they have pressed steadily for change.
First they obtained a lessening of the barriers preventing their
   Includes only programs for which civil assessments are or will
   be effective.

-------
                                12
getting satisfaction in court by developing and rapidly expanding
the use of civil penalties.  However hopeful this lessening of
the agencies' burden has been, their continued reliance on the
courts and the lack of a clear, workable standard for setting penal-
ties has left them still without a prompt and effective response
to delinquency.  Over the last several years, several jurisdictions
have taken the logical and critical next step; they have authorized
— and their courts have upheld — administrative imposition of
civil assessments or surety requirements/forfeitures.

      Administrative imposition, even though legal and promising
to be highly effective,  carries with it a serious and troubling
philosophic problem:  is it fair to give the regulator the power
to impose financial assessments on the regulatee?  Does doing so
make the regulator judge as well as prosecutor?  Does it give the
agency too much discretion?

      Administratively-imposed surety requirements/forfeitures
and civil penalties become much easier to accept, both philosoph-
ically and politically, once tied to the clear, objective standard
provided by economic remedies.  This standard ensures that no
regulatee can face an assessment larger than the savings it has
received as a result of noncompliance.  It makes remedy-setting a
ministerial task, well within the agency's technical capacity (and
beyond that of the usual court).  Without this standard, adminis-
trative imposition means the grant of extraordinary discretionary
power to an agency; with it, the agency is limited to an appro-
priately administrative role and the regulatee is fully protected.

      The Connecticut Legislature authorized the Department of
Environmental Protection to impose civil penalties administratively,
but insisted that it observe careful safeguards for the citizen in
doing so.  (A copy of the Enforcement Act of 1973 may be found in
Attachment A at the back of this  olume.)   The Department's
schedules of maximum assessments and requirements for setting
individual assessments,  both based on the economic remedies stan-
dard,  meet this requirement."


AN INTERMEDIATE
ENFORCEMENT RESPONSE

      When a regulatee falls behind schedule or otherwise breaks
the law,  enforcement  staffs now typically have only two ways of
responding:

      *   They can cajole or attempt to bluff the regulatee.
         This jawboning  approach generally entails repeat-
         edly excusing past delinquency.   For example,  if
         a source has failed to comply with the terms of

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                               13
         an order, enforcement staffs often "trade" an
         extension of the order's deadlines in return
         for a promise of future good behavior.

      *  Alternatively, enforcement staffs can attempt
         to obtain an injunction and/or a variety of
         penalties from the courts.  This option entails
         considerable expense, great additional delay,
         and a very low probability of ultimately ob-
         taining effective relief.  Moreover, for the
         large number of small violations  (such as
         failure to file periodic water pollution moni-
         toring reports), resorting to such an expensive
         response would clearly be unreasonable.

      This is an inadequate all-or-nothing choice.  It gives
regulators no means-of providing foot-draggers and recalcitrants
with a prompt, concrete incentive to comply.

      What is needed is a series of in-between steps.  These
remedies must be more serious than an exhortation but less so
than punitive fines or injunctions.  They must be quickly and
easily applicable.  Such in between steps would ensure more rapid
and much more uniform compliance — with less effort and cost to
the public — than is now the case.

      The Connecticut model provides a whole series of such in-
between steps.  They are of two types:  (1) administratively-
imposed civil assessments and (2) administratively-imposed
sureties.
     Economic Civil
     Assessments
     Administratively-imposed, economic civil assessments are
the first of these in between steps.  Armed with this authority,
the Department can charge a delinquent regulatee for delay even
as it is being incurred.

     Furthermore, even if the Department actually imposes such
assessments only rarely, the regulatees1 awareness of the avail-
ability of this tool adds greatly to the credibility of other,
less serious in between steps.  As mentioned above, warning let-
ters sent to notoriously recalcitrant sources mentioning the pos-
sibility of such assessments obtained quick, respectful responses.
Previous warning letters not backed by such assessment authority
were simply ignored.

     Economic civil assessments can be used to give regulatees
small warning jabs as well as to charge them for the full bene-
fit of noncompliance.  If, as is commonly the case with recal-
citrant sources, the regulatee has violated a procedural require-
ment for which a civil assessment has been defined, the Department

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                               14
can impose a small procedural civil assessment on it while simul-
taneously warning that continued noncompliance will make it liable
to the much larger civil assessment for substantive noncompliance.
Alternatively, the Department could impose an assessment for the
source's past substantive violation, but mitigate it down to a
small amount while making clear that future noncompliance will lead
to a much larger assessment.


      Sureties

      Sureties  ( e.g., performance bonds and escrows) provide a
wide range of additional in between steps.  By tying them to the
same economic standard as a civil assessment, sureties can provide
a series of finely gradated and economically coherent responses
from which the Department can choose depending on the facts of
the case before it.

      Connecticut's Enforcement Act of 1973 authorizes the Depart-
ment to require such "performance bonds or other security" as is
necessary.  This broad authorization in effect allowed the DEP to
select whatever financial devices were best suited to administrat-
ive environmental regulation.  The CEP found the escrow device to
be most promising.  It imposes a relatively small cost on the
regulatee; it is available to small as well as big regulatees; and
it entails no additional burdens for the Department.

      In its basic form, the escrow works as follows:  a regulatee
that is required to take certain steps to come into compliance and
about whose performance the Department has become concerned is
required to post cash, government bonds, or other acceptable secur-
ity equal in value to what the estimated economic civil assessment
would be for such a source for, say, 18 months of noncompliance.
The security would be deposited with an escrow agent, typically
a bank, who, 'for a small fee,  (1) will hold the security until such
time as the source comes into compliance and the agent is so noti-
fied by the State; or who(2) will deliver all or part of this
security to the State in the event that the source fails to meet
future deadlines as agreed.

      Requiring a regulatee to post such an escrow  is less severe
than imposing an economic civil assessment for delayed or non-
performance.  Whereas our delinquent asphalt batcher would be liable
for a $1666 civil assessment every month it was behind schedule,
posting an escrow would cost it roughly $132 per month, the sum
of  (1) the difference between what it could earn on the resources
tied up in the escrow account  (at least its cost of capital) and
what it will earn either in interest from the bank or on the bonds
used as security, and  (2) a small fee it must pay the bank.  Although
the economic bite of this enforcement response is not easily entirely
ignored, its chief impact is to force the regulatee to sit up and
take notice that, unless it mends its ways and moves promptly to
come into compliance, it will be subject to an assessment large
enough to make noncompliance economically unattractive.

-------
                             15
    There  is no doubt that  imposition of such surety liability
will have  the  sort of sharp communicative impact envisaged.  Re-
quiring a  source to post a  surety virtually ensures extensive
high-level management review.  The source's lawyers will inev-
itably be  involved; its managers will have to negotiate and
approve an arrangement with an escrow agent; and a large sum
of money must  change hands, even though it is not necessarily
lost forever.  If the root  of the problem had been an uncooper-
ative attitude by lower officials, forcing the matter to the
attention of higher-level management may well be sufficient to
bring about the desired change in the regulatee's behavior.
Moreover, even if the problem runs deeper than local or low-
level management, the risk  of significant forfeitures has
already been demonstrated to have a dramatic effect on the
performance of even some of the Department's most recalcitrant
regulatees.  Last year the  Air Compliance Enforcement Section
required several historically troublesome cases to post sureties:
up to that point, Case A had been 66 percent behind schedule
and Case B, 133 percent; thereafter Case A experienced only
2-1/2 percent  delay and Case B no delay.  Suddenly the managers
in these companies treated  compliance with the State's orders
as being as urgent as a commercial investment project.  Company
officers went  as far as to  fly to suppliers to ensure on-time
delivery of necessary equipment.

    Although requiring posting of an escrow is a less severe
step than imposing an economic civil assessment, it is still
quite costly for the regulatee.  Since adding unnecessarily
to the cost of environmental clean-up is in the interest of
neither the public nor the  Department, the CEP has developed
a simple variant of this basic escrow surety device that should
have virtually the same communicative impact but at a much re-
duced cost to  the regulatee.  This device, the "flexible
reserve escrow" works very  simply.  When the Department first
becomes concerned about a regulatee's performance, it will
require it to  accept liability for posting the same amount as it
would if the Department had imposed the full escrow.  However,
instead of requiring it to  post this sum with the escrow agent,the
Department would require only a small proportion, e.g. 10 percent,
to be actually placed with  the agent.  If our asphalt batcher were
required to post only this  10 percent or $2999.00 it would have
lost only one-tenth the interest spread (the difference between
what it could earn with the money, its cost of capital, and the
interest it would receive on the securities in the escrow account)
it would have lost if it had had to post the full amount.


    Despite this 90 percent cost saving, the communicative impact
of requiring the company to take this action would still be very
great.   A variety of managers, including members of the source's
legal staff,  would have to review and approve the document accept-
ing the full $29,992  escrow liability;  arrangements would still
have to be made with an escrow agent; and a check would have to be
drawn— and justified to the regulatee's financial officers.

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                              16
     If the company fell further behind, the Department could
increase the amount it required in the escrow account.  If the
regulatee regained lost time, the Department could similarly
reduce the amount of the reserve it required.  Once the source
had accepted full liability under the terms of the surety, it
would be bound to respond immediately to such subsequent demands
by the Department.  Because this would be a contractual obliga-
tion, the source would have no right to demand administrative
hearings or to appeal the Department's actions to the courts.

     Requiring a regulatee to accept a flexible reserve escrow
but to post only a small percent reserve is an extremely attract-
ive device for the Department to use initially when faced with a
regulatee that does not respond to simple warnings.  The regulatee
cannot ignore this response.  It applies the economic leverage of
a civil assessment without entailing any significant immediate
cost to the source.  Because the response is so reasonable, and be-
cause it entails virtually no immediate economic cost, it is much
less likely to invite a litigative response from the regulatee
than requiring the posting of the full escrow amount or, especially,
imposing a full economic civil assessment.

     With these devices available to the Department, it will prob-
ably be able to handle almost every case of delinquency effective-
ly with no more than a warning letter.  Backed as these warning
letters would be with the Department's authority to respond immed-
iately with concrete and economically adequate incentives, they
will be taken seriously.

     For the rare regulatee that does not respond to a warning
letter, the first, small bite of either a procedural civil assess-
ment or the imposition of a small flexible reserve escrow would
provide the Department with sufficient credibility to ensure
subsequent prompt compliance.


     A Progression
     of Steps	

     The several surety devices and the economic civil assess-
ments the Department can now impose administratively fit to-
gether into a coherent progression of steps the Department can
take depending on the degree of cooperation or recalcitrance
with which it is faced.  The following table illustrates how the
Department might want to use these steps assuming various degrees
of delay.

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                                        17
           The Progression of Enforcement Options CEP Makes Available
Number of
Months Regulates
Has Overrun Com-
pliance Deadline
       2

       3




       4 1/2
       5  1/2



       4  1/2


       6
     17
                     Warning letter
Warning  letter

Require  regulatee
to  sign  acceptance
of  specific  surety
liability

Require  regulatee
to  post  10%  of
surety amount  in
bank
Increase reserve
required in bank
to 50%

Reduce reserve
required to 25%
Partial  (50%)
forfeiture
                    Full forfeiture
Civil assessment
                             Comments

                      Requires quick, visible
                      follow-up to be cred-
                      ible.
Forces top management,
lawyers'  review of
problem area .
Forces new  top mgmt.,
lawyers ', and  compt-
roller's review  of
area -
                                          Economic cost limited
                                          to  (1) 10% of the dif-
                                          ference between the
                                          company's cost of capital
                                          and the interest rate
                                          paid by the escrow/
                                          bank or earned from
                                          government obligations
                                          used as security plus
                                          (2) bank fees.
State can increase
and decrease amounts
required flexibily.
Full forfeiture would
be at the economic
assessment rate that
neutralizes the ben-
efits of noncompliance.
(Forfeitures can go to
either a special fund
returnable to the reg-
ulatee or the General
Fund.)

At economic civil assess-
ment rate.

Begins as soon as surety
agreement amount exhausted.
                           Economic Cost
                           Per Month
                           To Regulate *

                              none
 none

 none
$132.00
(Assumes
$29,<992
escrow, i.e.
I 1/2 years
of civil
assessments)
 $  620



 $  315


 $  833
                                                   $  1666
 $ 1666
       The figures used here are fitted to the economics of  the asphalt
       batcher analyzed above.

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                                18


 In  the unlikely event that  the civil assessment does  not work,
 the agency can still go  to  court.

      This progression of steps is  a progression of  options.  The
 Department does not have to follow any particular pattern of re-
 sponses in every case.   It  may decide that certain  recalcitrants
 require the use of relatively  drastic steps early in  the process,
 Simple or short cases allow time for only one or two  responses.
 However,  having this full range of enforcement options  available
 allows the Department to select exactly the right combination of
 responses for each particular  enforcement problem.
     The intermediate enforcement responses outlined  above will
allow  the Department  (1) to  establish its credibility by demon-
strating that its promises are  backed when necessary  by quick and
sure responses,  (2) to force the upper-level management of non-
complying sources to focus on the implications of continuing
noncompliarice,  but (3) to do so while imposing only the minimum
necessary economic costs on  the regulatee.



          CONFRONTING CONNECTICUT'S ENFORCEMENT PROBLEMS



     The Connecticut Legislature enacted the Enforcement Act of
1973 because the first several  years of the then new  Department
of Environmental Protection's experience attempting to enforce
the State's  environmental laws  had made it clear that the Depart-
ment needed  additional tools if it was to do its job  effectively.
Before the Act,  uncooperative polluters could delay with virtual
impunity.

     A sample of the file of case summaries reviewed  by the En-
vironment Committee of the Legislature as it was considering the
Enforcement  Act  follows.  It should help explain the  problem the
Act was  designed to resolve.


                        Sample Case Histories

         "Ripley  Park.  Mr. Park is  a 74-year-old entrepeneur
         as set in his ways as Plymouth Rock.  One of  his ways
         involves  the production of  charcoal in an outdoor kiln.
         The Department calls it burning; he calls it  baking.
         Whatever  you call  it, the smoke emitted is powerfully
         odoriferous and dark.  In recent years, Mr. Park's farm
         has been  surrounded by suburban housing tracts.  Their
         residents complained mightily about the smoke and sent
         petitions to the Department.  Mr. Park began  burning  at
         night. The operation takes 3 days, once a month.   Mr.
         Park refused to accept Certified Mail delivery of
         Notices of Violation, and when the Order was  served
         by a Sheriff, he ran from the living room and locked
         himself  in the bedroom.  He  is devoted to his  operation
         and to the money it makes.

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                                  19
            The case  [went to court]...The  trial lasted four hours,
            even though,  since neither Mr.  Park nor his attorney
            showed up,  it was uncontested.   The Court issued an
            injunction.   Since then,  on the same schedule as before,
            Mr. Park  has  made charcoal."
            "E.  J.  Korvette, Inc.   The company operates an inciner-
            ator in which it burns packaging materials.  Violations
            have been  reported steadily since the first one was ob-
            served  January 7, 1971.  The incinerator emits partic-
            ulates  and odor in prohibited quantities, its smoke
            occasionally reaching Ringlemann violations close  to
            five (the  worst possible).   The equipment itself is
            of a type  prohibited by Regulation.

            On March 10, 1972 an Order to remedy violations of Section
            §19-13-G16 was issued granting thirty days for
            Korvette to come into compliance...The Order has been
            ignored.                                              ,

            As clear as this violation is, as offensive as the
            emissions  may be to immediate neighbors, it is one of
            hundreds of similar offenses, too time-consuming and
            insignificant to send to the Attorney General.  In
            any case,  the probable impact of prosecution is
            minimal since the likely "penalty" would be a court
            order to shape up."
            "Polycast Technology, Corp.   The company makes plastic
            windshields  for-Army helicopters...[and has been the
            subject  of prolonged enforcement efforts by the Depart-
            ment and of  repeated court battles].  As a result of
            his enforcement efforts,  the Director of Air Compliance
            is being sued by the company President for five million
            dollars.  In March 1972,  an injunction was issued against
            the company  ordering them to perform four pollution abate-
            ment actions (affecting air and water) by August 1, 1972.
            For no discernible reason, the work..,.[is not yet done].
Because these  case histories  focus on  cases that were  troublesome,
they  may have  the effect of overdramatizing the  problem of environ-
mental law enforcement in Connecticut.   Most  sources of air and
water pollution have  either complied voluntarily or have been
willing to do  so once brought under direct regulation.

      Although  there are relatively few troublesome, uncooperative
sources, the Department must  have an efficient,  effective way  of
handling such  cases.   If scofflaws are not brought to  book, volun-
tary  compliance by the presently law-abiding  majority  is threatened,

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                                 20
This  is  especially  so if, as  is  often the case in environmental
regulation,  sources that do not  comply are  given a significant and
unfair economic advantage over commercial competitors  that obey
the law.   If people feel they can get away  with delay,  they have
every economic incentive to try  to do so.   How widespread foot-
dragging becomes will largely depend on  (1)  how effectively the
Department dispatches a small number of  tough cases that attract
publicity and  (2) whether or  not regulatees perceive that others
in similar situations have been  able to  ignore the law successfully.

      When those subject to regulation perceive that their compliance
will  be  policed by  a tight enforcement system, voluntary compliance
increases sharply.   A CEP survey of the  impact of improved enforce-
ment  on  the rate of voluntary compliance in a variety  of regulatory
settings outside Connecticut  indicated that, after the introduc-
tion  of  improved enforcement, the percent of those who failed to
comply voluntarily  decreased  an  average  of  72 percent*
                     Improvements In Voluntary Compliance As a
                     Result of Improved Enforcement (in percent)
                                      83
                                               85


73



47










DOT . DOT Department University
Tire Automobile of Interior Parking
Standards* Safety Coal Mine Rules****
Standards** Standards***
                                                    72%
                Source: Interviews with agency personnel, enforcement
                      statistics.
                 * Violations of manufacturers' self-professed standard
                  dropped 73% when standard became enforceable.

                ** Standards added in 1970; ratio of violations/inspections
                  dropped 47% between 1970 and 1974.

               *** Violations/inspections ratio of new standards dropped 83%
                  between 1970 and 1973.

               **** The number of faculty members violating parking restric-
                  tions dropped 85% after sanctions were developed.



The  Department's own experience verifies the relationship  suggested

by this chart.
     A detailed discussion of the  study is available in  the
     Connecticut State  Library.  Copies are also available  upon
     request  from the Department of  Environmental Protection,
     State  Office Building, Hartford,  Connecticut and from
     William  Drayton, McKinsey and Company, 245  Park Avenue,
     New York,  New York.

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                                 21
      The Air  Compliance  Unit, the Department's  newest and most
 adequately  staffed Unit, has pursued a vigorous enforcement policy,
 has  had the resources to do so effectively, and has obtained an
 accordingly   tough image.   Of the State's known sources  of air
 pollution, only 3 percent have had  enforcement  problems  serious
 enough to require the issuance of orders.  Of these, 13  percent were
 responsible for fully 75 percent of all delay in complying with
 the  terms of  these orders—7 percent caused 56  percent.   On the
 other hand, the Water Compliance Unit,  which is less well staffed  and
 which had established a  public image before it  had the legal tools  to
 pursue a tight  enforcement policy,  is commonly  viewed as being "more
 reasonable."  The average water case overruns its legal  compliance
 deadlines by  over 100 percent.  The Water Resources Unit, drastically
 under-staffed and almost entirely toothless, finds over  80 percent
 of the coastal  structures (docks, dredging, filling, etc.)  it is
 supposed to regulate in  a state of  continuing,  open violation.
 (For a further  evaluation of the enforcement problems faced by
 these three Units, see Parts II of  Volumes II through IV of this
 Report.)

      The Department's cost  effectiveness  also depends importantly
on its ability  to deal effectively with the few tough uncooperative
cases.   The longer cases  drag on,  the higher the  per-case  cost
of enforcement  becomes for  the Department.   The longer the  case,
the  more correspondence,  the more meetings,  the more inspections,   and
the  more formal  proceedings  are required.   Even more important,
the  lower the voluntary  compliance rate,  the larger  the number of
cases  the Department  must process.    The probable  impact of  intelli-
gent and uniform application of CEP's new enforcement tools  by the
Department,  consequently, is dramatic:
              Projected Impact of Civil Assessments on the Average per Case Costs of
                           Enforcement (In Dollars)
        Air Compliance Orders*
                           Water Compliance Orders*
                                             Water Resources Orders**
                 272  t 43%
        Without
        Civil
        Assessments
With Civil
Assessments
Without
Civil
Assessments
With Civil
Assessn^nts
                                                       '5T7 "1 14%
Without    With Cival
Civil     Assessments
Assessments
       Source: Interviews with Unit Staffs; analyses of Unit files.
        Assumes all sources are informed of their financial liability for failure to abate air
        pollution. (See Part VI of Volume II.)

        Assumes 30 percent of all current delay is unavoidable. (See Part VI of Volume III.)

        Based on a CEP study of "Orders to Remove or Get a Permit," average costs of "Orders to
        Cease and Desist" should be cut by 45 percent.  (See Part VI of Volume IV.)

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                               22
       Being able to bring the few recalcitrant cases to book is
 also important  for the morale of  the Department staff.   These
 cases bulk very large in the  perceptions  of the staff,  much larger
 even than the disproportionate amount of  time they require to process.
 The staff view  these cases with more than conversational interest:
 they serve as tests of (1)  the seriousness of the Department's top
 management's environmental commitment and (2)  the Department's
 effectiveness.

      Although it  is  clear that  the Department must be able  to
 deal  effectively  with  the tough case,  it must also never forget
 that  most  citizens  comply voluntarily  (and  that,  in  programs now
 experiencing widespread delay and noncompliance,  voluntary  com-
 pliance should  increase markedly over  a several year period after
 the CEP tools are  introduced).  The  Department must  not  impose
 burdens on 90 percent  of those  it regulates in order to  get a
 handle on  a minority.

      Consequently,  the Department's  new economic  enforcement
 approach has been designed with two  key objectives always in
 mind:

      (1)   to be sufficiently tight and loophole-free to
           be able to provide the hard-core  recalcitrant
           case with  a prompt, certain, concrete,  and
           adequate  incentive to comply, and

      (2)   to do so  in  a way that does not impose  costs
           on the majority.

 The tools  outlined  in  the last  section provide the Department the
 basic means to accomplish these objectives.  The  next section out-
 lines how  Connecticut's economic enforcement approach has been
 adapted and applied to the full range of the Department's enforce-
ment problems.


                 APPLYING THE NEW APPROACH

     The discussion so far has dealt with the new tools Connect-
 icut is deploying and what they are designed to accomplish.  The
 following pages  discuss how these tools have been applied to the
 specific enforcement problems of the Department's several regulat-
ory units.

     Each application has been made to fit with existing proced-
ures  (and with the sharply varying styles and preferences of the
different administrative units), achieve the greatest possible
reduction in administrative costs, be equitable and legal,  and
still be sufficiently simple to be practicably useable.  Similarly,
the basic economic approach has had to be adapted from situation
to situation:  determining the value of new land created by fill
is quite different from estimating how much a baghouse would cost

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                              23
for an asphalt batcher with emissions of 20,000 cubic feet per
minute.  And, finally, what was designed has had to be tested,
drafted, explained to the public, and implemented.

     The first part of this section describes how the CEP approach
has been fitted to the basic order-based regulatory process used
by the Department (and most similar regulatory agencies).  The
second part summarizes very briefly how this approach has been
further tailored to the chief enforcement problems in each of
three key areas of environmental regulation:  air and water
pollution and illegal filling.


FITTED TO THE
REGULATORY PROCESS

     Fortunately, all three of the Department's units with major
enforcement responsibilities  (along with most regulatory agencies
elsewhere) share a common regulatory process.  Most of the new
economic enforcement regulations have been fitted to this common
process.

     Once an environmental problem has been detected, the Depart-
ment notifies whoever is responsible and, usually, tries to reach
agreement regarding what steps must be taken to eliminate the
problem by what dates.  If the problem is serious and is not
cleared up quickly,  the Department will issue an order specifying
what the regulatee must do and setting a series of deadlines by
which various steps must be complete.  The regulatee may contest
this order by requesting an administrative hearing within a
specified number of days.  If it does not, or if its challenge is
not successful, the order becomes final, i.e. legally binding.
The Department then monitors the regulatee's progress and attempts
to hold it to the deadlines set out in the order.


     This process runs into enforcement difficulties at two sep-
arate stages.  First, before an order is issued, new incentives
are needed to discourage noncompliance and, when noncompliance
is found, to encourage the source to accept a reasonably rigorous
order  (and not plunge the Department into lengthy and expensive
litigation).  Second, once an order is final, the Department_needs
to be able to induce the source to meet the deadlines specified
in the order.  Connecticut's new enforcement approach has been
designed to give the Department the tools it needs to deal with
both problems.  Each of the Department's three enforcement units
has two separate but closely related civil assessment regulations:

     *   A pre-order  assessment that recoups from the regulatee
        whatever benefits it has appropriated to itself by
        not meeting  either the State's emission standards
        (Air)  or permit requirements (Water Compliance and
        Water Resources).

     *   An order assessment that charges the regulatee the
        full value of its delays beyond scheduled order
        deadlines.

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                              24
These two assessments are logical extensions one of the other.
Since the value of a month's noncompliance generally is the same
in both periods, the underlying economics and the amount assessed
per month are likely to be identical.  Both use roughly the same
procedures and safeguards.

     Liability for a pre-order assessment ends the moment a
Department order covering the situation becomes final.  This
provision provides a built in "plea bargaining" incentive to the
regulatee designed to induce him to accept the Department's order.
The moment the regulatee accepts the order, it is freed from a
large, currently accrued liability the Department could assess
at will.  All it accepts in exchange is a possible future liabil-
ity that will not accrue unless it falls behind its order schedule.
In some cases the period of noncompliance used to calculate the
pre-order assessment extends back into the pre-detection period;
in all cases pre-order liability begins at the point of detection
and grows until the regulatee is under final order.  The longer
the delay in getting under order, of course, the greater this
potential liability becomes.  However, if the source agrees to an
order before the Department issues an assessment, the Department
will not impose the pre-order assessment.  And, as long as the
regulatee remains on schedule, the Department cannot issue an
order assessment.

     This disincentive for litigative delay is necessary once or-
ders have teeth.   If the Department could only impose civil assess-
ments for violating the terms of an order, it would face a dra-
matic increase in the number of orders that are contested and
ultimately appealed to the courts.  Until now, accepting an order
has entailed very little risk for a regulatee; with no effective
remedy generally available to it, the Department has had to respond
to delay with jawboning and extensions.  Once regulatees become
aware that accepting an order is no longer relatively riskless,
the balancing incentive provided by the pre-order assessment is
necessary.

     The pre-order assessment also serves other important ends,
notably that of encouraging voluntary compliance before any
Department action becomes necessary.  This is especially so for
the Water Compliance Unit, which has consistently had trouble
with sources starting new discharges without first obtaining a
permit.

     The following flow diagram describes in a somewhat simpli-
fied form how the Department's new tools would be used.  The
flow of steps, especially in the pre-order period, vary some-
what among the Department's three chief regulatory units.  The
diagram represents the most common flow applied to the typical
(cooperative) case.

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                                25
              The Enforcement Process: A Typical, Cooperative Case
   REGULATORY STEPS
                            i~-{HEARING AND APPEALS^>-
   DETECT
           CONFER
                     ORDER \-l
                              STEP I
                 STEP 2
   ACTION BY REGULATEE
           PROPOSES  \
           COMPLIANCE \
           PLAN    /
ACCEPTS
ORDER
MEETS\
DEADLINE \
MISSES
DEADLINE
(STRIKE)
   ENFORCEMENT ACTIONS BY DEP

SENDS \
WARNING \
LETTER /
ACCEPTS \
PLAN \
DRAFTS \
ORDER \
EXTENDS N,
ALL )
DEADLINES/
SENDS N.
WARNING y
LETTER /
      Once the Department detects a problem, it will normally send
a warning letter  to  the source advising it of the problem,  and of
its potential liabilities and rights.  The letter may  also  suggest
that the source propose a program for resolving the problem and
that it then discuss this problem with the Department.   If  the
source is not a repeat  offender, or if it has not had  prior notice
of what was required of it and of its potential liability to
civil assessments, the  Department will waive the pre-order  assess-
ment if the source takes "prompt and effective" action from that
time forward to resolve the problem.  Even if such a source wishes
to contest an order,  it will not be subject to the pre-order
assessment as long as it is moving vigorously to comply with the
law.  This provision (See, e.g., §22a-6b-602 (g) (4) in  Attachment B),
although somewhat of an administrative burden to the Department,
provides the regulatee  with a fundamental safeguard.   It ensures
that a Department inspector cannot walk up to a small  outfit and
announce that it  has been in violation for the last two years,
albeit perhaps unwittingly, and is therefore liable for an  assess-
ment of up to $25,000.

      When the Department requests a regulatee to provide  a com-
pliance plan or other information, "prompt and effective"  com-
pliance is defined to include providing such plans and information.
Once the source and  the Department have agreed to a reasonable plan,
the Department will  draft and issue an order based on  this  agree-
ment.  The regulatee then has 30 days in which either  to accept
the order or to request an administrative hearing and  contest it.
As explained above,  once such an order becomes final,  the  pre-
order assessment  can no longer be imposed.

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                              26
     Once under an order, the regulatee must meet a series of
deadlines, which typically include submitting engineering reports,
submitting plans and specifications, ordering necessary materials
and equipment, and having installed, tested, and begun operation
of the control facility.  As long as these deadlines are met, the
Department would take no enforcement action.

     If a deadline was missed for a legitimate reason, for example,
a strike, the Department would continue as it does now, to extend
that and all subsequent deadlines.  (In order to prevent opening
a loophole for the recalcitrant few. the civil assessment regula-
tions bar assessments only (1) when the delay is attributable to
the Department or (2) when it has a verifiable cause.   Thus
strikes, fires, and wars are grounds for mandatory exclusion,
but third party delay is not.  However, the Department will con-
tinue to provide extensions for other reasons, much as it always
has, on a discretionary basis^

     On the other hand, if the source misses a deadline without a
bona fide reason, the Department will typically send it a warning
letter that will note that the source is now behind schedule and
that, unless it regains the lost time, it may be subject to a
civil assessment for the delay in meeting its compliance schedule.
If the source indeed catches up and meets its final deadline,
the Department would not impose any civil assessment.

     In the event that the regulatee does not move promptly and
effectively to come into compliance, or in the event that it fails
to comply with its order schedule, the Department will impose civil
assessments.  The procedure for doing so is almost identical to the
procedure used in issuing a compliance order.  A Notice of Viola-
tion is sent to the regulatee stating the violation for which the
assessment is being issued and the amount assessed, and notifying
the regulatee of its rights.   The regulatee then has 20 days in
which to accept the Notice -, contest it, or take no action (in which
case the Notice  becomes a final  and effective order at the end of
the 20 days).

     In the event that a civil assessment order is contested, the
contest would first be heard in a Departmental hearing conducted
by the Commissioner, a Deputy Commissioner, or a duly appointed
hearing officer.  Hearings must be conducted in accordance with
the Connecticut Administrative Procedure Act and the Rules of
Practice of the Department.  At such hearings, the Department
carries the  burden of proving the violation and the reasonable-
ness of the proposed assessment,  and the regulatee has full
opportunity to cross-examine the Department's witnesses and to
present rebutting evidence.    Thereafter, the Commissioner will
issue a final decision in the matter, which could include a re-
duced assessment or no assessment.  The source could, if dis-
satisfied, then appeal this decision to the Superior Court for
Hartford County.  At any time during these proceedings, the
regulatee and the Department could, of course, settle the case.

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                               27
     Even after a final, contested decision, a source whose costs
of compliance proved less than those assumed in calculating the
assessment imposed in the final order, can, as a matter of right,
obtain a refund of the resulting over-assessment, with interest.
In addition, the Commissioner may mitigate any assessment at any
time. (However, if a case involves a significant assessment, the
Commissioner must give notice of the amount of the reduction and
state the grounds for his action.)

     In the unlikely event that a regulatee should refuse to pay
an amount assessed against him, the Enforcement Act provides a
quick and effective collection remedy.  In such an event, the
Department would file a copy of its final civil assessment order
with the Clerk of the Superior Court.  The Clerk is then required
to docket the final order, whereupon it obtains the same status
as a final judgment of the court  and will be enforced as such
by the Sheriff.


PROGRAM
APPLICATIONS

     This basic approach has been adapted to the particular needs
of each of the Department's three primary enforcement units (res-
ponsible respectively for air pollution, water pollution, and
coastal areas and wetlands).  Additional work has also been done
to develop an effective enforcement approach to the environmental
movement's next enforcement problem:  how to ensure that the
control facilities it has by now succeeded in getting installed
in most major sources are properly operated and maintained.  The
tool has also been adapted to small, simple procedural violations
as well as to the major substantive problems  discussed above.


      Air Compliance

      The Department's Air Compliance Unit was the first to imple-
ment CEP's new economic enforcment  tools.  All public hearings
on the proposed regulations were complete by November,  1974;  the
regulations had been approved by the Legislative Regulations  Review
Committee by December; the regulations were effective by January;
and the Department's first warning  letters went out in  February
of 1975.

     The Unit's two major substantive economic enforcement reg-
ulations, Sections 602 and 603 reflect the basic pattern outlined above
closely.   Section 602 provides pre-order assessment liability for
violation of the Department's existing particulate, hydrocarbon,
sulfur,  carbon monoxide, and nitrogen oxide emission control
regulations.  Section 603 authorizes the imposition of assessments
for failure to comply with the terms of a final order to abate
such emissions violations.  Both assessments are based on ident-
ical economics — charging for the value of having delayed the

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                                  28
costs of purchasing, installing, and operating and maintaining
necessary control equipment.*   (The Section 602 and 603 regula-
tions are reproduced in Attachment B to this volume.  Written
comments submitted at the time of the public hearings regarding
these regulations, including comments by a variety of leading
national experts, may be found in Attachment D.)

      The Air Compliance Unit has also promulgated and begun to
use a small civil assessment designed to encourage those required
by Department orders to submit periodic progress reports to do
so on time.  Even after a concerted follow-up effort in the
summer and fall of 1974, fully 17 percent of all progress re-
ports remain seriously delinquent.  Cutting this high delinquency
rate would help both compliance and Department costs.  Progress
reports alert both the regulatee and the Department if the reg-
ulatee begins to fall behind schedule.  Moreover, imposing a
civil assessment for delinquent progress reports should cut
Department administrative costs both by saving expensive field
inspections and by reducing the amount of staff time now spent
attempting to obtain delinquent progress reports.

      Volume II of the CEP Final Report discusses the Air program
in detail.  This Volume provides  (1) a summary description of
the Air program,  (2) a detailed baseline analysis of the Air
Compliance Unit's enforcement experience before the introduction
of these new tools, (3) an explanation of the economics underlying
these regulations,  (4) the regulations, (5) a detailed operating
guide (including a full set of cost curves) and  (6) an analysis
of the Unit's administrative costs with and without its new
economic enforcement tools.
*  The schedule in §22a- 6b-^602 (d )  defines the maximum amounts a
   person with given costs could be assessed.  These maximum
   amounts represent the largest savings a source could be
   reasonably expected to realize by postponing compliance with
   air quality emission standards or an air abatement order.
   This schedule is arranged according to equipment and operat-
   ing costs, so that any regulatee can quickly determine its
   maximum possible assessment by classifying its case according
   to these two cost factors and then locating the corresponding
   maximum amount in the schedule.   Calculation of individual
   civil assessments (§§22a-6b-602(e) and 603 (e)) would be governed
   by the same calculus but would use data describing the economics
   of a particular violator.  By contrast, the schedule of maximum
   assessment amounts was constructed using assumptions that all
   tend to increase the amount of the assessment.  Individual
   assessments would, therefore,  be much lower than the maximums
   listed in the schedule.

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                            29
     Water Compliance

     The Water Compliance Unit is proposing three economic civil
assessment regulations:  Section 503 for violations of the terms
of an order or permit, Section 502 for discharging without a per-
mit, and Section 504 for failing to submit monitoring reports as
required in the terms of an order or a permit.

     Section 503 is modeled closely on the Air Compliance Unit's
Section 603 regulation authorizing civil assessments for order
violations.  It has, however, been somewhat modified to fit the
different operating requirements and statutes of the Water Com-
pliance Unit.

     Section 502 is, however, quite different from the Air Com-
pliance Unit's Section 602.  Pre-order assessment liability for
water pollution cannot be based on effluent standards as the Air
Compliance Unit's are on emission standards:

   *  Connecticut in effect requires sources to reduce dis-
      charges to the extent technologically feasible.  Although
      the Department has developed informal, de facto dis-
      charge standards from this technical standard for
      common types of sources, liability could not be tied
      to such a standard because (1) it changes as technology
      advances, (2) many cases are not covered and (3)  the
      exact standard applicable to a given case is not de-
      termined until after a discharge is detected.

   *  Water Quality Standards are generally less stringent
      than the technical feasibility standard; and in any
      case, they do not translate readily into clear prede-
      terminable effluent standards for individual dischargers
      because the allowable individual discharge for a given
      class of stream depends on the concentration and types
      of other dischargers on the stream.

   *  The Federal Effluent Guideline standards cannot be
      used because:

         —  they rely on a measure of each industry's
             "product volume"-, e.g. the average number
             of ducks a duck farmer maintains over a
             year or the number of square inches of
             metal a metal plating company plates in a
             year.  Much of this information is unknown
             even to the company.  And the Department is
             certainly in no position to contest whatever
             number a regulatee may assert — which is to
             say that it will be virtually impossible to
             enforce such a standard.

             the effluent limitations required by the
             Connecticut standard vary significantly from
             those set by the Federal Guidelines from

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                               30

                case to case.  (A CEP comparison found
                Connecticut requirements ranging from being
                72 percent less stringent to several thousand
                percent more stringent than the Federal Effluent
                Guidelines for the same source.)

     0If pre-assessment liability in water pollution cases cannot
be based on violations of effluent standards/ they can be based
on violations of permit requirements.  Any person or municipality
planning a new  (or significantly modified) discharge is required
to obtain a permit before initiating the discharge.  Failure to
do so is a clear, easily proven offense — for which Section 502
authorizes the imposition of economic civil assessments.  If it is
made clear that sources that already have permits may not con-
tinue discharging after their permits expire without obtaining
a new permit (and clarification of this point may require issuance
of a regulation in Connecticut) virtually a]1 dischargers will
either  (1) be operating under the terms of an order or permit,
which usually specifies effluent standards for the source and
which can be enforced under the terms of Section 503, or (2) they
will be subject to assessment under Section 502.  And Section 502
liability can be used, much like Section 602 liability to induce
regulatees to accept an order  (or the equivalent conditions of a
permit).

     Moreover,  enforcing the requirement that new sources must
obtain a permit before initiating a discharge is itself an
important objective for the Water Compliance Unit.  Once a
source has built its plant and hired its workforce, the Depart-
ment (and the public) are faced with a fait accompli.  Closing
the source is not politically feasible: and often certain approaches
to control that would have been possible if installed earlier have
become unrealistic once the source begins operation.

     Section 504  authorizes  the  imposition  of  economic  civil
assessments if  sources  fail  to submit  monitoring reports regard-
ing  the volume  of water  they are discharging and the nature and
quantity  of the pollutants  in that  discharge periodically  as
required  in either  an order  or a permit.  These monitoring re-
ports,  somewhat like the progress reports required  in Air  Com-
pliance orders,  serve several useful purposes:   (1)  they force
sources to think  about  their pollution abatement facilities from
time to time,(2)  they provide important planning information
needed  by both  State and Federal governments,  and (3) they save
the  State expensive field inspections.   The assessment  is  based
on the  average  cost of  sampling,  analyzing,  and recording  what-
ever water quality  conditions the source was required but  failed
to monitor.  Thus,  for  example,  if  a source had been required to
take a  composite  sample;  to analyze for total  suspended solids,
nickel, zinc, tin,  cyanide  and pH;  and to report the results  to
the  Department  — and if the regulatee failed  to do so,  the
Department would  be authorized to impose a  civil assessment of
$90  on  the regulatee for its failure.   This assessment  is  the
sum  of  the following components:  $19  for the  sampling  and trans-
mittal  to a lab;  $8,  $12, $11, $14,  $16,  and $3 respectively  for
each of the required analyses; and  $7  for reporting to  the Depart-
ment.   (A copy  of these  regulations  will be found in Attachment B.)

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                               31
     Volume III of the CEP Final Report provides the same full
explanation of the Water Compliance CEP program that Volume II,
outlined above, does for the Air Compliance program.


     Water Resources

     The CEP program in the Water Resources Unit is much more
narrowly focused than in either the Air or Water Compliance pro-
grams.  Economic civil assessments are provided only for illegal
commercial and institutional filling in coastal and tidal waters.
There are several reasons for this close focus:

     *  The Water Resources Unit is acutely understaffed and
        could not now support a large new program.  A careful
        CEP sample survey of the Connecticut coast indicated
        that between 9 and 14 illegal commercial fills account
        for fully 89 percent of the cubic yards of illegal
        fill placed along the coast each year.  The Unit could
        practically manage this number of cases.

     *  Illegal coastal filling does permanent, serious
        environmental damage.  Of the large number of
        coastal enforcement problems, it deserves prior-
        ity.

     *  Relatively clear standards exist governing when
        fill will and will not be allowed, and the statute
        authorizing regulation in this area (unlike that
        governing inland wetlands)  is well established.

     *  Once an economic enforcement system for coastal
        filling had been perfected and tested, it can
        later be easily extended to any other type of
        filling, specifically including filling in inland
        and/or tidal wetlands.

     The coastal filling regulations are structured in a manner
roughly similar to the Water Compliance CEP regulations.  Section
413 imposes liability for violating the terms of a Water Resources
order, which typically requires a source to cease and desist
filling and/or to modify or remove an illegal fill.  Section 412
imposes liability for having filled without a permit.  And,
Section 411 imposes a flat-rate procedural civil penalty for
failing to have submitted a complete permit application prior to
beginning filling.

     However,  the economics underlying the Water Resource rem-
edies are very different from those underlying the Air and Water
Compliance regulations.   The benefit derived by delinquent reg-
ulatees in the Air and Water cases consisted of the value of
delaying the expenses of purchasing, installing, and operating
and maintaining control facilities.  In the case of illegal
coastal fill,  the delinquent regulatee benefits in three ways.
He receives (1)  the value of the use of the new coastal land
created by the illegal fill, (2)  the value of having delayed the

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                               32
expense of removing the illegal fill  (In legal theory, illegal
fill constitutes a nuisance, and he who places it is under an
immediate and continuing, automatic obligation to remove it.),
and  (3) the savings of not having prepared an application, which
must contain engineering drawings and on average costs roughly
$800, before filling.  The process of accurately estimating the
value derived from the land created by the fill and the costs of
modification/removal of the fill, both necessary components for
determining economic remedies in filling cases, is naturally en-
tirely different from the process of estimating the costs of
installing and operating control facilities.

     How the economics of filling cases is handled is described
in Volume IV of the CEP Report.  Volume IV also provides a full
description of the Water Resources CEP program, the results of
a detailed survey of the enforcement problems the Department faces
along the Connecticut coast, copies of the Water Resources CEP
regulations (Sections 411 to 413), and an analysis of the Water
Resource Unit's administrative costs before and after the intro-
duction of these new tools.


     Operating and
     Maintenance

     Over the last several years, environmental regulators have
been focusing on the problem of getting sources of pollution to
install often expensive control facilities.  Now, especially in
a state like Connecticut that has had a vigorous environmental
program and good citizen, support, most significant sources have
control equipment in place.  Consequently,  in the future, envir-
onmental regulation is going to have to focus much more than it
has so far on ensuring that sources operate and maintain the
equipment they have already installed properly.  If this objective
can not be achieved, much of the benefit of the last half decade's
effort to install control facilities may be lost.

     It is also clear that the operating and maintenance problem
is a tough one.  It is going to be difficult to get sources to
operate and maintain properly because it is much more in their
economic interest not to operate and maintain than it ever was
not to invest in the control equipment in the first place.  The
following diagram,  which compares on an annualized basis the
capital costs and the operating and maintenance costs of each
of the major types of air pollution control equipment, makes this
clear.  In every case, the costs to the regulatee of operating
and maintaining its control equipment were much greater — usually
many times greater — than the annualized capital costs of the
equipment.

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                               33
                      Most Control costs are O&M Costs
TYPES OF CONTROL
EQUIPMENT
Baghouse
Electrostatic
precipitator
High tetop
afterburner (KC)
Catalytic
afterburner (HO
Low energy
•crubber (part)
Carbon
Adsorbtion
ESTIMATED PERCENT
ECONOMIC BENEFITS
OF CONTROL
ZN oxide lOP
Concrete 401
ISO

Solvent recovery
OF A

NNUALIZED CAPITAL COSTS
OPERATING AND
MAINTENANCE COSTS
220 y. 350
	 IS 	 1 	 1/V - -'
	 vt 380 	 _ 1 ,_500
V, 1,800. J.A. 6,000

, 700 , 2,200

90 160
[ |
80 160
| |

In the rare instances where there is any secondary material re-
covery at all, it does little or nothing to offset these costs.
Moreover, the ease with which control equipment can be turned
on and off makes detection and proof difficult, which invites
evasion.

     The proposed O&M program relies on four major components:

     (1)  Standards of control equipment performance based
          on operating parameters of the equipment — e.g.
          pressure drop, air flow, water flow, temperature,
          fuel consumption;

     (2)  Continuous monitors to measure and record emissions
          and/or performance of operating parameters;

     (3)  Assessments based on cost savings from improper
          O&M and/or monitoring;

     (4)  A limited permit program.

     The O&M program imposes costs on regulatees only after they
have had prior contact with the Department and ample notice of
their obligation to operate properly and the enforcement conse-
quences of improper O&M.  The Department will advise regulatees
of their O&M obligation once they install control equipment.  For
the majority of regulatees who thereafter operate properly, the
O&M enforcement program has no application and imposes no costs.
The program only affects the relatively small number of regulatees
who, after notice and warning, are found to be operating control
equipment improperly.

     Detection of visible emissions from a controlled source, or
of control equipment being operated in a manner inconsistent with
the operating parameters established at a satisfactory stack test,
will lead to an order which requires the regulatee to obtain an

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                              34
O&M permit.  The permit will contain a timetable for developing
O&M standards expressed as performance levels for a combination
of operating parameters that reflect proper operation of the
control equipment.  For scrubbers, for example, parameter
standards might be set for pressure drop, water flow, and gas
flow.  Regulatees will be required to propose parameter standards
based on manufacturer's specifications and/or stack test results.
The O&M permit will generally also require the regulatee to in-
stall continuous monitors and recorders of either emissions or
of the performance of the operating parameters for which standards
have been set.  Finally, the permit will contain a condition that
the regulatee provide assurances of future proper O&M by agree-
ing to accept the burden of proving continuous proper O&M in the
event the Department detects another O&M violation in the future.
Civil assessments, based on the costs saved as a result of im-
proper O&M or improper monitoring, apply to operating without a
permit and to operating in violation of O&M standards and/or
monitoring requirements.

     Economic assessments for O&M violations, then, would be
based on savings in (1) the operating and maintenance costs and
(2) the equipment replacement costs of the source's control
facilities.  Department staff can determine these costs using
the same cost curves as are used for estimating equipment and
operating costs in Sections 602-603 abatement civil assessments.
Equivalent cost curves have been developed to simplify estimating
the savings likely to accrue to a source that is violating monitor-
ing requirements.  For both O&M and monitoring violations, the
staff can handle inflation, cost of capital, taxes, and the
process of calculating the resulting assessment just as it does
in Sections 602 and 603.

     Similarly, economic assessments for failure to comply with
monitoring requirements are based on equipment and operating
costs.  The Department can estimate these costs using cost
curves similar to those developed for emissions/order violations,
and it can determine the other variables and do the necessary
subsequent calculations using exactly the same tools developed
for the Section 602 and 603 regulations.  In order to discourage
regulatees from shutting down control equipment during periods of
monitoring failure, monitoring assessments are initially calculated
to reflect savings from improper O&M.  It will, however, be ad-
justed to the much lower monitoring assessment level upon a
showing by the regulatee that it made the expenditures for proper
O&M during the monitoring failure.

     The Department's proposed approach to O&M enforcement should
(1) impose no burden on those who comply, (2) allow an effective
response to repeat offenders, and (3) allow maximum scope for
change in the standards used as developing engineering knowledge
and enforcement experience in this new area dictate.

     Volume V provides a full description of this approach along
with an explanation of the economics used in this approach and
annotated copies of draft O&M regulations.

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                              35
                        CONCLUSIONS


     Connecticut is introducing a new economic approach to
environmental law enforcement.  A good many of the innovations
in this approach should have broad application in other regulatory
settings.  The Connecticut model shows how economics can be used
to calculate remedies that are effective, unquestionably equit-
able, and practically useable.  The availability of such economic
remedies in turn makes it possible to overcome the serious philos-
ophic objections that have inhibited legislatures from granting
executive departments the power to impose financial incentives on
delinquent regulatees directly.

     Administrative imposition of economic civil assessments
and/or surety devices would allow regulators to provide an
immediate, concrete incentive to the scofflaw.  With the regulator
no longer caught with having to choose between the two extreme and
inadequate responses of jawboning or going to court, even the
recalcitrant regulatee would find it in its economic interest to
comply.  And, once the tough cases have been handled effectively,
the rate of voluntary compliance by all other regulatees would
improve sharply.  Increased voluntary compliance would (1) cut
regulatory costs and (2)  speed environmental clean-up significantly,

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                               36
                         ATTACHMENT A
                  THE ENFORCEMENT ACT OF 1973
     The Enforcement Act of 1973, PL 73-665, gives the Department
the power to impose civil assessments and to require sureties,
and it defines how these powers may be used.  The most important
portions of the Act, Sections 2 and 3(7), now Sections 22a-6(b) and
22a-6 of the General Statutes, follow.  The full text of the
Act may be found in Volume VI.

     The Act was initially designed by a Department task force
that had the broad outlines of the CEP enforcement approach out-
lined in this Report in mind when it was doing its work.  This
task force consisted of Henry Beal, then an attorney in the Air
Compliance Unit and now Director of Air Compliance; William
Drayton, a McKinsey and Company lawyer/economist/management
consultant with a special interest in regulatory and incentive
design; and David Tundermann, then and until recently the Depart-
ment's General Counsel and now a member of the staff of the
President's Council on Environmental Quality.  The New York law
firm of Davis, Polk, and Wardwell provided most valuable research
and drafting assistance.

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                                      37
SECTION  2:   ADMINISTRATIVELY-IMPOSED  CIVIL ASSESSMENTS
    Sec, 22a-6b.  Imposition  of  civil penalties  by the commissioner, (a)  The
  commissioner of environmental protection is authorized to adopt a schedule or
  schedules establishing the amounts, or the ranges of amounts, of the civil pen-
  alties which may become due under this section. Such schedule or  schedules
  shall be adopted by the commissioner after public hearings pursuant  to section
  22a-6, and may be amended from time to time in the same manner as for adop-
  tion. The civil penalties established for each violation shall be of such amount
  as to insure immediate and continued compliance with applicable laws, regula-
  tions,  orders  and permits.  Such civil penalties shall not  exceed the  following
  amounts:

    (1)  For failure to file any registration, plan, report or record, or any applica-
  tion for a permit, for failure to display  any registration, permit or  order, or
  file any other information required pursuant to any provision of section 14-100b
  or 14-lOOc, subdivision (3) of subsection (b) of section 15-121, chapter 348, sec-
  tions 19-507, 19-508, 19-508a,  19-513a, 19-514, 19-517,  19-519, 19-519a, 19-524b,
  19-524c, 19-524g,  19-524n, 22a-5, 22a-6, 22a-7, 22a-39, 25-2, 25-4a, 25-4d, 25-4e,
  25-4f, 25-7a, 25-7b, 25-7d, 25-7e, 25-8a, 25-8c, 25-10, 25-11, 25-12, 25-15, 25-26,
  25-26a, 25-27, 25-54c to 25-541, inclusive, or 25-54aa, 25-54cc, 25-54dd, 25-54ee
  25-54hh, 25-54ii, 25-5411, 25-54oo, 25-54pp or 25-110 to 25-114, inclusive, or any
  regulation, order or permit adopted or issued thereunder by the commissioner,
  and  for other violations of similar character as set forth in such schedule or
  schedules, no more than one thousand dollars for said violation and in addition
  no more than one hundred dollars for each  day during  which such violation
  continues after receipt of a final order of the commissioner under subsection
  (c) of this section assessing the civil penalty for such violation;

   (2) For deposit, placement, removal, disposal, discharge or emission of any
 material or substance in violation of any provision of section 14-100b or 14-100c,
 subdivision (3) of subsection (b) of section 15-121, chapter 348, sections 19-507,
  19-508,  19-508a,  19-513a, 19-514, 19-517, 19-519,  19-519a,  19-524b,  19-524c,
  19-524g,  19-524n, 22a-5, 22a-6, 22a-7, 22a-39, 25-2, 25-4a, 25-4d, 25-4e,  25-4f,
 25-7a, 25-7b, 25-7d, 25-7e, 25-8a, 25-8c, 25-10, 25-11, 25-12, 25-15, 25-26, 25-26a,
 25-27, 25-54c to 25-541, inclusive, 25-54aa, 25-54cc, 25-54dd, 25-54ee, 25-54hh,
 25-54H, 25-5411, 25-54oo, 25-54pp or 25-110 to 25-114, inclusive, or any regulation
 adopted thereunder by the  commissioner, and for other violations of similar
 character as set forth in such schedule or schedules, no more than twenty-five
 thousand dollars for said violation and in addition no more than one  thousand
 dollars  for  each day during which such violation continues after receipt of a
 final  order of the commissioner under subsection (c) assessing the civil penalty
 for such violation;

   (3)  For violation of the  terms of any final order, except final orders under
 subsection (e) of this section and emergency orders and cease and desist orders
 as set forth in subdivision (4) of this subsection, of the commissioner, for viola-
 tion of the terms of any permit issued  by the commissioner, and for other viola-
 tions of similar character as set forth in such schedule or schedules,  no more
 than twenty-five thousand dollars for said violation and in addition no more than
 one thousand dollars for each  day during  which such violation continues after
 receipt of a final order of the commissioner under subsection (c) of this section
 assessing the civil penalty for such violation;

   (4)  For violation of  any  emergency order or  cease  and desist order of the
commissioner, and for other violations of similar character as set forth in such
schedule or schedules, no more than twenty-five thousand dollars for said viola-
tion and in  addition no more than five  thousand dollars for each day during
which such violation continues after receipt of a final order of the commissioner
under subsection (c) assessing the civil penalty for such violation.

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                                       38
  (b)  In adopting the  schedule or schedules prescribed by this section, the
commissioner shall consider the amounts, or ranges of amounts, of assessment
necessary to insure immediate and continued compliance, and the character and
degree of injury or impairment to, or interference with, (1) public health, safety
or welfare, (2) the public trust in the air, water, land and other natural resources
of the state, and  (3) reasonable use of property which  is caused or is likely
to be caused by the type of activity described in such schedule or schedules.

  (c)  In addition, in setting a civil penalty in a particular case, the commis-
sioner  shall consider all factors which he deems relevant, including, but not
limited to, the following:

  (1)  The amount of assessment necessary to insure immediate and continued
compliance;

  (2)  The  character and degree  of  impact of the violation on the  natural
resources of the  state, especially any rare or unique natural phenomena;

  (3)  The conduct of the person incurring the civil penalty in taking all feasible
steps or  procedures necessary or appropriate to comply or to correct the viola-
tion;

  (4)  Any  prior violations by such person of statutes, regulations, orders or
permits administered, adopted or issued by the commissioner;

  (5)  The economic and financial conditions of such person;

  (6)  The character and degree of injury to, or interference with, public health,
safety or welfare which is caused or threatened to be caused by such violation;

  (7)  The character and degree 'of injury to, or interference with reasonable
use of property which is caused or threatened to be caused by such violation.

  (d)  If the commissioner has reason to believe that a violation has occurred
for which a civil penalty is authorized  by this section, he may send to the vio-
lator, by certified  mail, return receipt  requested, or personal service, a notice
which shall include:

  (1)  A reference to the  sections of the  statute,  regulation, order or permit
involved;

  (2)  A short and plain statement of the matters asserted or charged;

  (3)  A statement of the amount of the civil penalty or penalties to be imposed
upon finding after hearing that a violation has occurred or upon a default; and

  (4)  A statement of the party's right to a hearing.

  (e)  The person to whom the notice is addressed shall have twenty days from
the date of receipt of the notice in which to deliver to the commissioner written
application for a hearing. If a hearing is requested then, after a hearing and
upon a finding that a violation has occurred, the commissioner may issue a final
order assessing a  civil penalty under this section which is not greater than the
penalty stated in the notice. If such a hearing is not so requested, or  if such
a request is later  withdrawn,  then the notice shall, on the  first day after the
expiration of such twenty day  period or on the first day after the withdrawal
of such  request for hearing, whichever is later, become a final order of the
commissioner and the matters asserted  or charged in the notice shall be deemed
admitted unless  modified by consent order, which shall  be a final order. Any

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                                      39
 civil penalty may be mitigated by the commissioner upon such terms and condi-
 tions as he in his discretion deems proper or necessary upon consideration of
 the factors set forth in subsection (b) hereof.

   (f)  All hearings under this section shall be conducted pursuant to sections
 4-177, to 4-184, inclusive. The final order of the commissioner assessing a civil
 penalty shall be subject to appeal as set forth in section 4-183 except that any
 such appeal shall be taken to the superior court for Hartford county and  shall
 have precedence in the order of trial as provided in section 52-191. Such final
 order  shall not be subject to appeal under any other provision of the general
 statutes. No challenge to any final order of the commissioner assessing a civil
 penalty shall be allowed as to any issue which  could have been raised by an
 appeal of  an earlier order, notice, permit, denial or other final decision by the
 commissioner. Any civil penalty  authorized by  this  section shall become due
 and payable (i) at the time of receipt of a final order in the case of a civil penalty
 assessed in such order after a hearing, (ii) on the first day after the expiration
 of the period in which a hearing  may be requested if no hearing is requested,
 or (iii) on the first day after any withdrawal of a request for hearing.

   (g)  Any person acting within the terms and conditions of a final order or
 permit issued to him by the commissioner shall not be subject to a civil penalty,
 under this section, for such actions.

   (h)  A civil penalty assessed in a final order of the commissioner under this
 section may be enforced in the  same manner as a judgment of the  superior
 court.  Such final order shall  be  served in  person or by certified mail, return
 receipt requested. Any notice of violation or final order against a private cor-
 poration shall  be served upon at least one of the individuals enumerated  in
 section 52-57.  After entry, a transcript of such  final order may be filed by the
 commissioner, without  requiring the payment of  costs as a condition precedent
 to such filing, in the office of the clerk of the superior court in any one or more
 of the following counties:  Any county in which the respondent resides, any
 county in  which the respondent has a place of  business, any county in which
 the respondent owns real property and any county in which any real property
 which  is a subject of the proceedings is located; or, if the respondent is not
 a resident of the state of Connecticut, in Hartford county. Upon such filing,
 such clerk or clerks shall docket such order in  the same manner and with the
 same effect as a judgment entered in the superior court within the county. Upon
 such docketing, such order may be enforced as a judgment of such court.

  (i)  The provisions of this section, subsection (a) of section 19-518, sections
22a-2,  22a-6,  22a-6a, 22a-7, 25-17, 25-54g,  25-54h, subsection (d) of  section
25-54i, 25-54J, 25-54k, 25-541, 25-54p, subsections  (b) and  (c) of section 25-54mm
and 25-54qq are in addition to and in no way derogate from any other enforce-
ment provisions contained in any statute administered by the commissioner. The
powers, duties and remedies provided in such other statutes, and the existence
of or exercise of any powers, duties or remedies hereunder or thereunder shall
not prevent the commissioner from exercising any other powers, duties or reme-
dies provided herein, therein, at law or in equity.
  (P.A. 73-665, S. 2. 17.)

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                                      40
                       SECTION  3(7);    SURETIES
   Sec. 22a-6.  Commissioner to establish environmental standards, criteria and
 regulations, make contracts, studies, issue permits. Complaints. Hearings. Bonds.
 The commissioner  may (1) adopt, amend or repeal such environmental stan-
 dards, criteria and regulations, and such procedural regulations as are necessary
 and proper to carry out his functions, powers and duties. No adoption, amend-
 ment or repeal of any standard, criterion or regulation shall take effect except
 after a public hearing, thirty  days prior  notice of the date, time, place and
 subject matter of which shall be published in the Connecticut Law Journal, or
 earlier than thirty days after the publication thereof in said law journal; (2) enter
 into contracts with any person, firm,  corporation or association  to do all things
 necessary  or convenient to carry  out the  functions, powers and duties  of the
 department; (3) initiate and receive complaints as to any actual or suspected
 violation of any  statute, regulation, permit or order administered, adopted or
 issued by him. The commissioner shall have the power to  hold hearings, admin-
 ister oaths, take  testimony and subpoena witnesses  and evidence, enter  orders
 and institute legal proceedings including, but not limited to, suits for injunctions,
 for the enforcement of any statute,  regulation, order or permit administered,
 adopted or issued by him; (4) in accordance with regulations adopted by him,
 require, issue, renew, revoke, modify or deny permits, under such conditions
 as he may prescribe, governing all sources of pollution in  Connecticut  within
 his jurisdiction; (5) in accordance with constitutional limitations, enter at all
 reasonable times upon  any public or private property, except a private resi-
 dence, for the purpose  of inspection and investigation to ascertain possible
 violations of any statute, regulation,  order or permit administered, adopted or
 issued by him and the owner, managing agent or occupant of any such property
 shall permit such entry, or he may-apply to any court having criminal jurisdic-
 tion for a warrant to inspect such premises to determine compliance with any
 statute, regulation,  order or permit administered, adopted or enforced by him,
 provided any information relating  to  secret processes or methods of manufac-
 ture or production  ascertained by the commissioner during, or as a result of
 any inspection, investigation, hearing or otherwisefshalj.be kept confidential and
 shall not be disclosed; (6) undertake any studies, inquiries, surveys or analyses
 he may deem relevant,  through the personnel of the department or in cooper-
 ation with  any public or private agency, to accomplish the functions, powers
 and duties of the  commissioner; (7) require the posting of sufficient performance
 bond or other security to assure compliance with any permit or  order. (8) pro-
 vide by notice printed on any form that any false  statement made thereon or
pursuant thereto  is  punishable as  a criminal offense under section 53a-157; (9)
 notwithstanding the provisions of section 4-131, make or contract for the making
of any alteration,  repair or addition to any real asset under his control and
management, including rented or leased premises, involving an  expenditure of
fifty thousand dollars or less, provided  any expenditure  in excess of twenty-
five thousand dollars shall be subject to the bidding procedures in  section 4-132.
  (1971, P.A. 872, S. 7; P.A. 73-665, S. 3,17; P.A. 74-188.)
  See chapter 54.

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                              41
                         ATTACHMENT B
        REPRESENTATIVE ECONOMIC ENFORCEMENT REGULATIONS
     This Attachment contains four sets of CEP regulations.,  The
first three, between them, exemplify the three major components
of the CEP regulatory structure.  The fourth spells out the pro-
cedures to be used in all civil assessment cases.
Type of Regulation

Pre-Order Assessments

Order Violation Assessments

Small, flat rate Assessments


Basic CEP Procedures
Subject Covered

Air Emissions

Air Orders

Water Monitoring
Requirements

Procedures
Section
Number

  §602

  §603


  §504

§§100-102

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                                                      42
                         VIOLATING EMISSIONS  STANDARDS
 ADMINISTRATIVE REGULATIONS
     Regulations and notices published herein  are
     printed exactly as submitted by the forwarding
     agencies.    These,   being  official  documents
     submitted  by  the  responsible  agencies,  are
     consequently  not  subject  to  editing  by  the
     Commission on  Official Legal Publications.
DEPARTMENT OF ENVIRONMENTAL PROTECTION
  Assessment of Civil  Penalties for  Violation of Air
        Emissions Standards and Orders of the
                    Commissioner
  Section 1.  The Regulations  of  Connecticut State
Agencies are amended by adding sections 22a-6b-602 and
22a-6b-603, inclusive, as follows:

Sec.  22a-6b-G02(a).  Title
  This section shall be known and may be cited as "Civil
Penalty Regulations:  Emission Violations."

Sec.  22a-6b-602(b).  Definitions
  (1) "Assessment  period"  means the  period of  time,
expressed in months or portions  thereof, during which
a regulatce has failed to incur  all  the expenses-necessary
to insure immediate and continued compliance with ap-
plicable emission standards  except that  it does  not in-
elude the time that  a person is under a final order of the
Commissioner, or the "order assessment period"  defined
in Section 22a-6b-603(b), or any period before the  date on
which  Sections 22a-6b-602  and 22a-6b-603  of  the  Civil
Penalty regulations become effective.
  (2) "Civil penalties final  order"  means  an order of
the Commissioner issued pursuant to Sections 22a-6b-101,
2;!a-fib-G02, and 22a-6b-603 of the Civil Penalty  Regula-
tions which  has  become final by the  passage of  time or
by the consent of the regulatce or after hearing.
  (3) "Commissioner" means  the Commissioner  of the
Department  of Environmental Protection or his lawfully
designated agent.
  (4) "Compliance  timetable"  means  the  schedule of
dates by which a person under a final order is to come
into  compliance with Department regulations.
  (5) "Cost of capital" means cither:  (i) the weighted
average of the marginal rates  the Commissioner  finds a
person or class of persons typically must  pay per year
for debt and owner's equity or (ii)  the  annual  rate of
return  or  of savings that the Commissioner finds a  per-
son  or class of  persons could achieve  with  a  sum of
money equal to  the cost of compliance; as determined
by the Commissioner for a person or class of persons.
  '0) "Cost  of compliance" means the  net,  after  tax,
estimated  present value  of  the sum of equipment costs,
operating  costs, and all other costs and savings the  reg-
ulatec will experience in order to come into compliance
including, hut  not limited to inflation, depreciation, such
replacement  costs as will later be necessary to  replace
capital equipment that has  either worn  out or  become
obsolete, and a discount rate equal to the cost of  capital.
  (7) "Department" means the Department of Environ-
mental Protection.
  (8) "Depreciable  life" means the time period of useful
life expectancy for  capital  plant  and equipment.  This
period shall be defined as 10 years until and unless the
Commissioner finds otherwise pursuant to Section 22a-6b-
G02(g) (2) in which case he may consider the depreciation
periods allowed for tax purposes by the U. S.  Internal
Revenue Service and such other guides as he determines
arc similarly reliable.
   (9) "Depreciation" means the amortization of equip-
ment costs over their depreciable life.
   (10) "Emit" means  the act of releasing  or discharg-
ing or causing to be released or discharged any air pol-
lutant in violation of the terms of Sections  19-508-9 and
19-508-18 to 19-508-22, inclusive, of  the Regulations for
the Abatement of Air Pollution. An "emissions standard"
is any requirement sot  forth in Sections  19-508-9 and
19-508-18 to 19-508-22, inclusive, and  an "emissions viola-
tion" is a violation of an emissions standard.
   (11) "Equipment costs"  means the installed capital
costs of such equipment as is or may  be required  to bring
an unabated  activity  into  compliance with  applicable
emission standards. Such costs shall include, but not be
limited  to, the  cost of  equipment  required to control
emissions effectively, auxilliary equipment, technical and
engineering services, and all development  and  start-up
costs including  labor,  materials and necessary  testing.
For the  purpose of estimating  the  cost of compliance
prior to the date  that the  unabated activity has been
brought into compliance with applicable emissions stand-
ards, the Commissioner may assume that what  he finds
to be  the  most environmentally effective   and  reliable
equipment  available will be used.   The Commissioner
shall, upon petition by the  regulatee once the regulatce
has come into compliance, correct the penalty due using
actual equipment costs pursuant to Section 22a-6b-602(g)
(2).
   (12) "Final order"  means an order of  the  Commis-
sioner issued pursuant to Title 19, Chapter 360,  Sections
19-508, 19-5JO, 19-514,  19-515 and/or 19-517 of the Con-
necticut General Statutes which  has  become final by the
passage of time or by  the  consent  of the   regulatee  or
after hearing.
   (13) "Inflation" means the average annual rate  of in-
flation as measured by the changes in the Wholesale Price
Index  prepared by  the United States  Department  of
Labor or such other index  of inflation as  the Commis-
sioner may determine is most appropriate over the 3 years
prior to the year in which the civil penalty is to be
assessed.
   (14) "Operating  costs"   means  the  non-depreciable
annual costs for the operation and maintenance of equip-
ment and processes required for the abatement of  air
pollution which  will protect installed control equipment
and  insure continuous  compliance with applicable emis-
sion standards.
   (15) "Person" includes every individual,  firm,  part-
nership, association, syndicate, company, trust, corpora-
tion, municipality,  and any other legal entity.
   (16) "Regulatce" means a  person who owns or operates
a process or piece  of property that has been, is,  or may
become an unabated activity.
   (17) "Unabated  activity" means  the ownership  or
operation  of  any process or piece of property,  real or
personal, which  (i) emits or causes  to be  emitted, any
air pollutant  in excess of the  emission  standards pre-
scribed  in  Section 19-508-9  and 19-508-18  to 19-508-22,
inclusive, of the Regulations for the Abatement of Air
Pollution or  (ii) is not equipped or operated with the
emission  controls required by Sections 19-508-18 to  19-
508-22.  Ownership or operation of each such process or
piece of property  is a  separate "unabated  activity"  re-
gardless  of the  number of  identical or  closely  similar
processes or pieces of property owned by the same per-
son or located on the same premises.

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                                                       43
Sec. 22a-6b-602(c).  Civil  penalties for  violating emis-
    sion standards
   Any person carrying on an unabated activity shall be
linhlr for a civil penalty assessed by the Commissioner
pursuant to Public Act 73-GG.r>, Section 2(a)(2), and in
accordance  with the  procedures prescribed in Section
22a-fib-100 to  22a-6b-102, inclusive,  of  the Civil Penalty
Regulations.
Sec. 22a-6b-G02(d).  Schedule  of maximum assessments
   (3) Persons maintaining unabated activities may be
assessed  monthly amounts  for  each  such  activity  no
greater than the amount listed in the following schedule
for the combination  of equipment  costs and operating
costs which will be or  has  been required  to bring the
unabated activity into compliance with applicable emis-
sions standards.
   (2) The maximum monthly  amounts set  forth in this
schedule  represent the  economic advantages a  person
responsible for an unabated activity could gain from one
month's delay in bringing that activity into compliance
assuming economic and tax conditions  all tending to in-
crease the value to the  regulatee of such delay.  These
maximum amounts have been  calculated in  three broad
steps:  a  gross cash flow for eaeli set of compliance ex-
penditures, chiefly equipment costs  and operating costs,
is defined; tliis  gross cash flow is discounted to present
value, and the  maximum monthly  civil penalty is cal-
culated  as that  amount which would,  if paid  monthly,
amortize  the gross present value of the project.  The
Commissioner shall  provide a written explanation  of
these calculations upon request.
   (3) The Commissioner shall impose  lesser  penalties
pursuant  to Section 22a-Gb-602(e)(l-2) if  he finds  the
probable advantages of delay are smaller than indicated
in this schedule, and  he may further lower  these penal-
ties pursuant  to Sections 22a-6b-602(c)(5)   and/or  22a-
6b-G02(g).
   (4) In no ease shall  the assessment exceed  $25,000  plus
•tKlOO for encli day that the unabated activity continues
after  the  regulatec has received  a  civil penalties final
order.
   (5) The Commissioner has determined that the reme-
 dies provided by this schedule will insure immediate and
 continued compliance  and will protect  (i) the  public
 health, safety, and welfare; (ii) the public trust in the
 air, water, land and other natural resources of, the state;
 and (iii)  the reasonable use of property.
 Sec. 22a-Gb-G02(e).  Determination of amount in individ-
    ual cases
   (1) The Commissioner shall determine the amount of
 the monthly civil penalty he may assess for any individ-
 ual unabated activity  based  on the actual or probable
 cost of compliance required of that particular activity.
 Individual  assessments arc  calculated  in four  broad
 steps:  the gross cash flow of the  required compliance
 expenditures, chiefly   equipment costs  and  operating
 costs, is determined; the net cash flow  is established by
 taking tax and other savings into account; this net cash
 flow is  discounted to present, value; and the individual
 monthly civil penalty is calculated as that amount which
 would,  if paid monthly, amortize the net present value
 of the project.
   (2) The Commissioner shall  calculate the total civil
 penalty by multiplying the monthly civil penalty by the
 number of months or fractions thereof in the assessment
 period.
   (3) The Commissioner shall provide a written explana-
 tion of this  methodology upon request.  He shall also
 provide a written summary of the  calculations  used ,to
 determine a particular assessment, except to the extent
 he  is  required to maintain  the confidentiality of  certain
 information  pursuant  to   Section  22a-6b-602(i), upon
 written request by an interested party  or  the affected
 regulatec.
   (4) In no  case shall an individual  assessment  exceed
 either (i)  the  maximum civil  penalty Section 22a-Gb-
 B02(d) would allow per month for an unabated activity
 with the same  equipment  costs and operating costs  or
 (ii) for the  total civil penalty due  during the entire
assessment period, $25,000 plus  $1000  for each day that
the unabated activity  continues after the regulatec has
received a civil penalties final order.
Operating
Costa

$0 1000
$1001-2.->00
JL'-iOl TiOOO
,«.i "(11 7.VIO
$rr)0i. 10,000
$10,001 15,000
$15,00! 20,000
$211,001 25,000
»2.-,,ooi-.-tr,,r>oo
$35,001-50,000
$r>n,ooi-75,ooo
$75,001.100,000
$ioo,oni 200,000
.$200,OOI-.'I50,000
Equipment Costs
A!
188.
357.
638.
919.
1200.
1762.
2324.
2886.
4011.
5097.
8508.
11318.
22561.
39425.
SS
88
263.
432.
713.
994.
1275.
1837.
2400.
2962.
4086.
5772.
8583.
11394.
22637.
39501.
II
415.
583.
864.
1145.
1426.
1989.
2551.
3113.
4237.
5924.
8734.
11545.
22788.
39652.
i-H
O O
II
717.
885.
1168.
1448.
1729.
2299.
2853.
3415.
4539.
6226.
9036.
11847.
23090.
39954.
Is
cr1-!
N 10
1170.
1339.
1B20.
1901.
2182.
2744.
3306.
3808.
4993.
6679.
9490.
12300.
29^43.
40407.
Is
£§•
WHO
1623.
1792.
2073.
2354.
2C35.
3197.
3759.
4321.
5446.
7132.
9943.
12754.
23996.
40861.
in o"
2227.
2396.
2677.
2958.
3239.
3801.
4364.
4926.
6050.
7736.
10547.
13358.
24501.
41463.
si
If
3134.
3303.
3584.
3865.
4146.
4708.
5270.
5832.
6957.
8643.
11454.
14264.
25507.
42371.
$100,001-
150,000
4045.
4813.
5094.
5375.
5057.
62)9.
6781.
7343.
8467.
10154.
12964.
15775.
27018.
43882.
$150,001-
200,000
6155.
6324.
6605.
6886.
7167.
7729.
8292.
8854.
9978.
11664.
14475.
17286.
28528.
45393.
$200,001-
300,000
9177.
9346.
9627.
9908.
10189.
10751.
11313.
11875.
13000.
14686.
17497.
20307.
31550.
48415.
So
o^o
ocT
»8
15220.
15389.
15670.
15951.
16232.
16794.
17356.
17918.
19043.
20729.
23540.
26350.
37593.
54458.
$500,001-
1,000,000
30328.
30496.
30777.
31038.
31340.
31902.
32464.
33026.
34150.
35837.
38647.
41458.
52701.
*
° s
ll
*
*
*
*
*
*
*
*
*
*
*
*
*
*
$350,001-1111(1 above ............. .
                    No more than $25,000 plus $1000 for each day that tho unabated activity continues after the regulates has received
                    i civil penalties final order.                      ,,

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                                                        44
   (5) In sotting a civil penalty in n  particular cnsi1, the
 Commissioner shall consider all factors which lie deems
 relevant, including, but not limited to those listed In-low;
 and  he  may, as a  result of considering  and  balancing
 these factors, lower the civil penalty.  The factors he
 shall consider include:
   (i) The amount of the assessment  necessary to insure
 immediate and continued compliance;
   (ii) The character and degree of impact the. unabated
 activity has  on the public  trust in the air, water, and
 land and on the natural resources of the state, especially
 any  rare or unique natural phenomena;
   (iii) The character and degree of  injury to,  or  inter-
 ference  with, public health, safety or welfare  which is
 caused  or  threatened to be caused  by  the  unabated
 activity;
   (iv) The conduct of the  person incurring the  civil
 penalty  in taking all feasible steps or procedures neces-
 sary or appropriate to comply or to correct the unabated
 activity;
   (v) Any prior  violations  by such  person  of  statutes,
 regulations, orders  or permits administered, adopted or
 issued by the Commissioner;
   (vi) The economic and financial conditions  of  such
 person;
   (vii) The character and degree of  injury to,  or inter-
 ference with  reasonable use  of property which is caused
 or threatened to be caused by such unabated activity.

 Sec.  22a-Gb-G02(f).   Enforcement proceedings
   (1) Warning letter.  If the Commissioner finds  that
 an emissions  violation has  probably  occurred,  he shall
 send the responsible regulatee :i  civil penalties warning
 letter by certified  mail or by personal  delivery or service.
 This letter  shall notify the  regulatee  that the  Commis-
 sioner has reason to believe a violation has occurred.  For
 those cases to  which Sections 22a-6b-G02(g) (4)(i)  and
 22a-Gb-602(g)(4)(ii) apply, this warning letter shall also
 notify the regulatee that it may be  able to avoid the
 imposition of civil penalties tinder Section 22a-fib-602 if
 it takes  prompt  and  effective action pursuant to the
 terms of Section 22a-6b-602(g) (4).
   (2) Hearings,  (i) Any person  in receipt  of  a  notice
 of violation issued pursuant to Section 22a-6b-10l(a) of
 the Civil Penalty Regulations may apply to the  Commis-
 sioner for a hearing pursuant to Section 22a-6o-101(b).
   (ii) Such hearing shall be conducted by the  Commis-
 sioner, a Deputy Commissioner, or a hearing officer from
 the Office of Adjudication of the Department. Such hear-
 ing  shall be  conducted  pursuant  to  Sections  4-177 to
 4-18r>, inclusive, of the General Statutes and to the Rules
 of Practice of the  Department.
   (iii) The  Department shall have the burden of  pro-
 ducing evidence to prove the emissions  violation  that
 provides the basis for imposing the penalty and the  rea-
 sonableness of the  proposed  assessment, and  the risk of
 non-persuasion by a preponderance of the evidence shall
 fall upon the  Department.
   (iv) If the Commissioner, Deputy  Commissioner, or
 hearing officer presiding at the hearing determines that
 information important  to  an accurate determination of
 all or part of the civil penalty amount is  not  available
 at the time of  the  hearing but  will become available
 Inter, he  may  defer  determining  the amount of the civil
 penalty due until he establishes that the previously miss-
 ing  information is  available, at  which time  he shall
 promptly hold a hearing pursuant to  Section 22a-6b-G02 •
 (1,0(2) regarding  the amount of  the  civil  penalty due.
 Hi- nniy not collect any portion of the  civil  penalty until
ttiis hearing is held and a civil penalties final order issued.
   (3) Appeals.  Any person  may appeal 11  civil penalty
final order of the Commissioner issued  after a  hearing
pursuant to Section 2(f) of Public Act 73-GG5.
 Sec. 22a-6b-602(g).  Mitigation
   (1) General.  The Commissioner may mitigate any civil
 penalty upon  such terms as he in his  discretion deems
 proper or  necessary  upon  consideration of the factors
 set  forth in Sections 2(b) and 2(c) of Public Act 73-GG5.
   (2) Correction of penalties,  (i) A  regulatee in receipt
 of a notice of violation  issued pursuant to Section 22a-
 6b-101(a) of the  Civil Penalty Regulations may petition
 the Commissioner for correction of the civil penalty as-
 sessed  against him at any  time up  to two years after
 the Commissioner finds  that the regulatee  has  come into
 compliance. Such petition shall set forth in writing any
 evidence  that the cost of compliance  has been  or will be
 less than the Commissioner had initially determined  in
 assessing the civil penalty,  and it shall lie sent by cer-
 tified mail or personal  service  to the  Commissioner or
 the Director of Air Compliance.
   (ii) The  Commissioner may, in response to such  a
 petition or at his own initiative, lower  an  assessment he
 determines was excessive. If the Commissioner takes no
 action in response to such a petition, or if his response
 is not satisfactory to the regulatee,  the  regulatee  may
 obtain a  hearing  of right once it has come into compli-
 ance or at any other time specified in a final order  or  a
 civil penalties final order. Following such a hearing the
 Commissioner shall mitigate the civil penalty  if and to
 the  extent  that the actual cost of compliance has been
 less than he had  initially determined.
   (iii)  Refunds shall be made  with  interest  calculated
 from the  time of payment and at the  cost of capital rate
 used to assess the civil penalty.
   (3) Reduction  of  the  assessment  period for delays
 beyond the regulatee's control.  The  Commissioner shall
 exclude from the  assessment period such periods of non-
 compliance as the regulatee  proves have been caused by
 strikes or lockouts; riots, wars, or other acts of violence;
 floods, hurricanes, or other Acts  of God; or other equally
 severe, unforeseeable and uncorrectiblc accidents; where
 such acts or events  were occasioned  directly  upon the
 regulatee or a person under contract to the  regulatee.
 In addition, the  Commissioner  shall  exclude  from the
 assessment  period such  periods of  non-compliance as
 were occasioned by delays attributable  to the  Air Com-
 pliance Unit of the Department in excess of routine proc-
 essing times.   Nothing  in this section  shall prohibit  a
 regulatee  from  proposing, or  the  Department  from ac-
 cepting, a compliance timetable which excludes from the
 assessment  period  periods of non-compliance caused by
 other acts cr events beyond  the control  of the regulatee,
 such as contractors' or suppliers' delays.
   (4) Nonimposition during prompt compliance, (i) If,
 upon receipt of a warning letter defined in Section 22a-
 6b-602(f)(l) and  continuously thereafter until (a) the
 end  of ninety  days or such longer period as  the Com-
 missioner  may allow or (b) at the end of the assessment
 period,  whichever  occurs first,  the regulatee  takes all
 steps necessary to bring the  unabated activity  promptly
 and  effectively into continuing  compliance with appli-
 cable emissions standards, the Commissioner  shall not im-
 pose  the  civil penalty assessable under section  22a-6b-
 602 before (a) the end of the ninety day period or such
longer period as the Commissioner may allow or  (b) the
end of the assessment period, whichever occurs first.
  (ii) If  the warning letter requests preparation  of  a
compliance plan, the  regulatee shall be  deemed to  have
taken prompt  and effective  action  during the period
between receipt of such a request and submission of the
requested  plan if (a)  the plan is a detailed written plan
of action including a timetable which,  once implemented,
will  achieve compliance  as promptly  and effectively as
possible and if (b) it is  submitted no later than forty
days after receipt  of such a request. The regulatee shall
also be deemed to have taken prompt and effective action,

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                                                     45
even though it takes no further steps, during the sub-
sequent  period between its  submission of  such a satis-
factory plan of action and  five days  after it  has been
notified  that the Department  has completed its review
of  the  plan  and/or has issued  a  compliance  order!
Thereafter — and,  if the warning letter does not request
the preparation of  a compliance plan, from the time the
regulatee receives  the warning letter — the  regulatce
must take all steps necessary to achieve continuing com-
pliance as promptly and effectively as possible  if it is to
meet the standard  of performance required in Section
22a-6b-602(g)(4)(i).
   (iii) Sections 22a-6b-602(g)(4)(i)  and 22a-6b-602(g)
(4) (ii) shall not apply to persons to  whom the Depart-
ment has, within the preceding 5 years, issued  a written
order  under Section 19-508-12(b)(2) of the Regulations
for the Abatement  of Air Pollution; or a warning letter
under Section  22a-6b-602(f)(l) of this regulation;  or
actual written notice that that person has been  found
in  violation of one or more  emissions standards;  or
actual written  notice both of  the  duty to  comply with
the relevant requirements of  Sections 19-508-9 and 19-
508-18 to 19-508-22,  inclusive,  and  of  the.  potential lia-
bility  to  civil  penalties for  failure to  do  so;  provided
that such prior order, warning letter,  or  actual  notice
(1) refers to the same  scetion(s)  of  the  Department's
Regulations for the Abatement of Air Pollution that are
the subject  of  the  current action and  (2) was  given by
certified mail or by personal delivery or service.
   (5)  Notice,  (i)  The Commissioner  shall  report every
case in which he lowers a civil penalty pursuant to Sec-
tion 22a-6b-602(e)  or in which he  mitigates a civil pen-
alty pursuant  to  Sections  22a-6b-602(g)(l-3),  if  the
monthly civil penalty without such lowering or mitiga-
tion would be greater than three hundred dollars,  in the
Monthly Report of Activities of the Air Compliance Unit.
This report  shall state  the  name  and address  of  the
regulatee, the  amount of the  reduction, the amount  of
the civil penalty still to be assessed, and the grounds for
such lowering or mitigation.
   (ii)  The Commissioner shall  also send written  notice
to all  persons  who  have, within the  preceedinpf twelve
months, requested copies of  this Monthly Report,  either
thiough  the Monthly Report or otherwise,  of any hear-
ings to be held regarding such cases where the amount
of the  civil penalty  may be an issue at least ten days prior
to the  hearing.

Sec. 22a-6b-602(h).   Limited inclusion  of past failure to
    abate in the assessment period
  If the  Commissioner finds that it is reasonable to infer
that the  emissions violation (s)  for which a  civil penalty
is being assessed  are the result of a regulatee's past
failure to make the control expenditures  necessary  to
bring the similar activities into compliance with  appli-
cable emissions standards, and if the regulatee is  not
protected from the  imposition of civil  penalties  pursuant
to Section 22a-6b-602(g) (4), the Commissioner may in-
clude the period of such pro-violation  failure in the as-
sessment period used to  calculate  the  civil penalty  as
prescribed in Section 22a-6b-602(e) subject to  the fol-
lowing limitations:
   (1)  No assessment period  shall begin before  the date
on which this regulation becomes effective;
  (2)  No assessment period shall include a  pre-detection
period greater  than two years.

See. 22a-6b-602(i).   Bequest  for  information   by  the
    commissioner
  (1)  The Commissioner may  require the  regulatee  to
provide such additional  information, including  informa-
tion regarding  costs, as he deems necessary to effectuate
the purposes of Section 22a-6b-602.
  (2) Any person who files any  statement,  record or
report with the  Commissioner  containing  false or mis-
leading information  or other claims will be  liable to
criminal prosecution  for a Class A misdemeanor punish-
able by imprisonment for a period of up to one year and
a fine of up to one  thousand dollars  ($1000)  for each
violation pursuant to Section 53a-157 of the Connecticut
General Statutes.
  (3) Any information disclosing trade secrets  and com-
mercial or financial information provided by a  regulatee
pursuant  to this section will remain confidential  if the
regulatee so requests in a letter sent by certified mail or
personal service to the  Commissioner or the Director of
Air Compliance,  except that such information may be
disclosed to other officers,  employees, or authorized rep-
resentatives of the  stute  concerned with  carrying out
these regulations or when relevant in  any hearing con-
ducted under  the authority  of these regulations by the
Department of Environmental Protection or in  any judi-
cial proceeding, subject to such safeguards as  the hear-
ing officer or presiding judge may impose.

Sec. 22a-6b-602(j).  Collection
  (1) Payment of the civil penalties assessed under this
section may be required monthly, or at such time or time
intervals as the Commissioner determines will most effec-
tively limit the Department's administrative  costs  and
further the objectives defined in Section 22a-6b-602(d).
  (2) The present value of the total  civil penalty as-
sessed, calculated at  the time  the  notice of violation is
issued, shall be held constant regardless  of the timing
of its collection.

-------
                           46
VIOLATING  THE  TERMS  OF  AN  ORDER
     ADMINISTRATIVE REGULATIONS
         liegula/ioni  and nolicei published  herein art
         printed exactly us submit led by Ike forwarding
         agenciei.    These,  being  official  documenti
         tubinitted by  the retpontiblt  agencies,  art
         consequently not  subject  to  editing by  tke
         Commijit'ox  on  Official Legal Publicationi.
     DEPAKTMENT OF ENVIBONMKNTAL PEOTBCnOK
   Sec. 22a-6b-603(a).  Title
     This section shall be known and may be cited as "Civil
   Penalty Regulations:  Violation of the Terms of an Order
   to Abate an Emissions Violation."

   Sec. 22a-6b-603(b).  Definitions
     Except for the following terms, the definitions of Sec-
   tion 22a-6b-602(b) will apply to these regulations;
     (1) "Order assessment period" means the period  of
   time, expressed in months  or  portions  thereof, that  a
   person under a final order  is behind in conforming  to
   that order's compliance timetable as measured  by  the
   time that has elapsed between the date of a scheduled
   deadline and the date that the abatement, control or com-
   pliance measures called for in the scheduled deadline arc
   actually completed.
     (2) "Scheduled deadline"  means the date in a  compli-
   ance timetable by which an abatement, control, or com-
   pliance measure is scheduled to be completed;  such dead-
   line may be for any  of the intermediate  steps in  the
   compliance timetable  or for  the final step at which com-
   pliance is to be  completed.

   Sec. 22a-6b-603(c).  Civil penalties  for violating  the
       terms of an order
     Any person subject to a fmnl order of the Commissioner
   to abate an emissions violation who is not in compliance
   with the terms  of that order shall be liable to a civil
   penalty assessed by the Commissioner pursuant to Public
   Act 73-665, Section 2(a)(3), in accordance with the pro-
   cedures prescribed in Section 22a-6b-101  to 22a-6b-102 of
   the Civil Penalty  Eegulations, inclusive.

   Sec. 22a-6b-603(d).  Schedule of maximum assessments
     (1) Persons responsible for an unabated activity that
   is under but not in compliance with the  terms of a final
   order may be assessed a civil penalty no larger than the
   product of  (a)  the maximum monthly civil penalty  the
   Commissioner may assess under the schedule  of maximum
   assessments  of Section 22a-6b-602(d) against a person

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                                                     47
for an unabated activity with the same equipment costs
and operating costs and (h) the number of months and/
or fractions thereof the Commissioner determines arc  in
the order assessment  period.
   (2) The Commissioner shall provide a written explana-
tion of how these maximum assessments are calculated
to any regulatee upon request.
   (3) The Commissioner  shall  impose lesser penalties
pursuant  to Section 22a-6b-603(e)(l-2)  if he finds the
probable advantages of delay arc smaller than indicated
in this schedule, and  he may  further lower these penal-
tins pursuant  to Sections 22a-6b-603(e)(5)  and/or 22a-
6b-G03(g).
   (4) In no case shall the assessment exceed $25,000 plus
$1000 for each day that the unabated activity continues
after  the regulatee has received a civil penalties final
order.
   (5) The Commissioner has determined  that the maxi-
mum  remedies provided in this  schedule  will insure im-
mediate  and  continued compliance and will protect  (i)
the public health, safety, and welfare;  (ii)  the  public
trust in the air, water, land and other natural resources
of the state; and (iii) the reasonable use  of property.

Sec. 22a-6b-6C3(e).  Determination of amount in individ-
    ual cases
   (1) The Commissioner shall determine  the  amount  of
the monthly civil penalty he may assess for each individ-
ual case of nn unabated activity not conforming to  or
complying with the terms of a final  order based on the
actual or probable  cost of compliance  required  of that
particular activity.   Individual  assessments  arc calcu-
lated in four broad steps:  the gross cash flow of the re-
quired compliance expenditures, chiefly equipment costs
and operating costs, is determined; the net cash flow is
established by taking tax and other savings into account;
this net cash flow is discounted to present value; and the
individual monthly civil  penalty is  calculated as that
amount which would, if paid  monthly,  amortize  the net
present value of the project.
   (2) The Commissioner  shall calculate  the  total civil
penalty by multiplying the monthly civil  penalty by the
number  of  months or fractions thereof in  the order
assessment period.
   (3) The Commissioner shall provide a written explana-
tion of tliis methodology upon  request.  He shall also
provide a written  summary of the calculations used  to
determine a particular assessment,  except to  the  extent
he is required to maintain the confidentiality of certain
information pursuant  to Section  22a-6b-603(h),  upon
written request by an interested party or  the affected
regulatee.
   (4) In  no ease shall an individual assessment exceed
cither  (i)  the maximum civil penalty  Section  22a-6b-
602(d) would  allow per month for  an unabated activity
with the  same equipment costs  and  operating costs,  or
(ii) for the total civil  penalty due during the entire order
assessment period, $25,000 plus $1000 for each day that
the unabated  activity continues after the regulatec has
received a civil penalties final order.
   (5) In setting a civil penalty  in  a particular case, the
Commissioner  shall consider all  factors which he deems
relevant, including but not limited  to those listed below;
and he may,  as a result  of considering  and balancing
these  factors,  lower the civil penalty.   The  factors  he
shall consider  include:
   (i)  The amount  of the assessment necessary to insure
immediate and continued compliance;
   (ii) The character and degree of impact the unabated
activity has on the public trust in the air, water, and
land and on the natural resources of the state, especially
any rare or unique natural phenomena;
  (iii) The  character and degree of injury to, or inter-
ference with,  public health, safety  or welfare which is
caused or threatened to be caused by the unabated ac-
tivity ;
  (iv) The conduct of the person, incurring the civil pen-
alty in taking all feasible steps or procedures necessary
or appropriate to comply or to correct the unabated ac-
tivity ;
  (v) Any prior violations by such person of statutes,
regulations, orders or  permits administered, adopted or
issued by the  Commissioner;
  (vi) The  economic and financial  conditions of  such
person;
  (vii) The character and degree of injury to, or inter-
ference with reasonable use of property which is  caused
or threatened  to be caused by such unabated activity.

Sec. 22a-6b-603(f). Enforcement proceedings
  (1) Hearings,  (i) Any person  in receipt of a notice of
violation  issued  pursuant to Section 22a-6b-101(a)  of
the Civil  Penalty Regulations may  apply to  the Com-
missioner  for a  hearing  pursuant  to  Section 22a-6b-
101 (b).
  (ii) Such hearing shall be conducted  by the Commis-
sioner, a Deputy  Commissioner, or a hearing officer from
the Office  of Adjudication of the Department Such hear-
ing shall be conducted pursuant to Sections 4-177 to 4-185
of the General Statutes and to the Rules of Practice of
the Department.
  (iii) The  Department shall have the burden of pro-
ducing evidence to prove the basis for imposing the pen-
alty and the reasonableness of the proposed assessment,
and the risk of non-persuasion by a preponderance of the
evidence shall fall upon the Department.
  (iv) If  the  Commissioner,  Deputy Commissioner,  or
hearing officer presiding at the  hearing determines that
information important to an accurate  determination of
all  or part of the civil penalty amount is not available
at the time of  the  hearing but  will become  available
later, he may  defer determining  the  amount of the civil
penalty due until he establishes that the previously miss-
ing  information  is available,  at which time  he  shall
promptly  hold a  hearing pursuant  to  Section 22a-6b-
603(g)(2) regarding the amount of the civil penalty due.
He  may not collect any portion of the civil penalty until
this hearing is held and a civil penalties final order issued.
  (2) Appeals.  Any person may appeal a civil penalties
final order of the Commissioner  issued  after  a hearing
pursuant to Section 2(f) of Public Act 73-665.

Sec. 22a-6b-603(g).  Mitigation
  (1) General.   The Commissioner  may  mitigate  any
civil penalty  upon such  terms  as he in  his  discretion
deems proper or necessary upon consideration  of the
factors set forth in Sections 2(b) and 2(e) of Public Act
73-665.
  (2) Correction of penalties,  (i) A regulatee in  receipt
of a notice  of violation  issued pursuant to Section 22a-
6b-101(a) of the  Civil Penalty Regulations may petition
the Commissioner for correction  of  the civil penalty as-
sessed against him at any time up to two years after the
Commissioner  finds that the regulatee has  come into
compliance. Such petition shall set  forth in writing any
evidence that  the cost of compliance has been  or  will be
less than  the  Commissioner had  initially determined in
assessing  the civil penalty,  and it shall be sent by certi-
fied mail or personal service to the Commissioner or the
Director of Air Compliance.
  (ii) The Commissioner may,  in  response to such  a
petition or at his own initiative,  lower an assessment he

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                                                            48
determines  was  excessive.   If the Commissioner  takes
no action in response to such a petition, or if his response
is not satisfactory to the rcgulatee,  the  regulatec  may
obtain a hearing of right once it has  come into compli-
ance or at any other time specified in a final order or a
civil penalties final order. Following such a hearing the
Commissioner shall  mitigate the civil penalty if and to
the extent that the actual  cost of  compliance has  been
less than he had initially determined.
   (iii) The Commissioner shall also  mitigate the  civil
penalty if and to the extent  that  the regulatee comes
into actual final compliance with less delay than the total
number  of  days of  delay  for which assessments  have
previously been  made while the regulatee  was under a
final order.
   (iv) Refunds shall be  made with  interest calculated
from the time of payment and at the  cost of capital rate
used to assess the civil penalty.
   (3) Reduction of the order assessment period for de-
lays beyond the  regulatee's control.  The Commissioner
shall  exclude  from  the  order assessment period  such
periods of non-compliance  as the  regulatee  proves (i)
have been caused by strikes or lockouts; riots, wars, or
other acts of violence; floods, hurricanes,  or  other  Acts
of God; or other equally severe, unforeseeable and un-
correctible accidents; where such  acts or events  were
occasioned directly upon the regulatec or a  person under
contract to the regulatee.  In addition, the Commissioner
shall  exclude  from  the  order assessment  period  such
periods of non-compliance as were  occasioned by delays
attributable  to the Air Compliance Unit  of the Depart-
ment  in excess of routine processing  times.   Nothing in
this section shall prohibit a regulatee from proposing, or
the Department  from accepting, a  compliance timetable
which excludes from the order assessment period periods
of non-compliance caused by other acts or events beyond
the control of the regulatee, such as contractors' or sup-
pliers' delays.
   (4) Notice,  (i) The Commissioner shall report  every
case in  which he lowers a civil penalty pursuant to Sec-
tion 22a-6b-603(e) or in which he mitigates a civil pen-
alty  pursuant  to  Section  22a-6b-603(g) (1-3), if  the
monthly civil penalty without  such lowering or mitiga-
tion would be greater than three hundred dollars, "in the
Monthly Report of Activities of the Air Compliance  Unit.
This report shall state the name and  address  of the reg-
ulatec, the amount of the reduction,  the  amount of the
civil penalty still to  be  assessed,  and the grounds for
such lowering or mitigation.
   (ii) The Commissioner shall also send  written notice
to all  persons who have, within the preceding twelve
months  requested copies  of this Monthly Report, cither
through  the  Monthly Report or otherwise,  of any hear-
ings to  be held regarding such cases where the amount
of the civil penalty  may be an issue at  least ten  days
prior to the hearing.
Sec. 22a-6b-603(h).  Request  for information  by  the
    commissioner
  (1) The Commissioner may  require  the rcgulatec to
provide, such additional information, including informa-
tion regarding costs, as he  deems necessary Jo effectuate
the purposes of Section 22ii-6b-603.
  (2) Any  person who files any statement,  record or
report with the Commissioner containing false or mis-
leading information or other  claims, will be  liable to
criminal prosecution for a  Class A misdemeanor punish-
able by imprisonment  for a period  up to one year  and
a fine of up to  one thousand  dollars  ($1000)  for each
violation  pursuant  to  Section 53a-157  of the  General
Statutes.
  (3) Any information disclosing trade secrets and com-
mercial or financial information provided by a regulatee
pursuant  to this section  will remain confidential  if the
regulatee so requests in  a letter sent  by certified mail
or personal service  to  the Commissioner or the Director
of Air Compliance,  except that such information may be
disclosed  to other officers, employees, or authorized  rep-
resentatives of the state  concerned with carrying out
these regulations or when  relevant  in  any hearing  con-
ducted  under the authority of these regulations by the
Department of Environmental Protection or  in any judi-
cial proceeding,  subject to such safeguards  as the hear-
ing officer or presiding judge may impose.

Sec. 22a-6b-603(i).  Collection
  (1) Payment of the  civil penalties assessed  under this
section may be required monthly, or at such  time or time
intervals  as the Commissioner determines will most effec-
tively limit the Department's  administrative  costs  and
further the objectives  defined  in  Section  22a-Gb-G03(d).
    (2)  The present value  of the total civil penalty as-
sessed,  calculated at the time  the notice  of violation is
issued,  shall be held constant regardless of the timing of
its  collection.
  Be  it  known  that the foregoing regulations are  made,  adopted
and promulgated by the undersigned  pursuant to Sections 22a-6 and
19-508 of  the General Statutes and Section 2 of Public Act No.
665 of the  1973  Public  Acts, after the publication in  the Connecticut
Law Journal  on September 24,  1974, of the notice of  the proposal
to adopt them, the holding of advertised public hearings on Novem-
ber  12, 13,  and 14, 1974, and after consideration of all relevant mat-
ter presented, pertaining to Assessment of  Civil Penalties for Viola-
tion of Air Emissions Standards and Orders of the Commissioner.

  In Witness Whereof, I ha\e hereunto set my hand and seal this
27th day of November, 1974.
                                    DOUGLAS  M. COSTLE
                                             Commissioner

  Approved:  Attorney General,  December 20, 1974; Standing Legis-
lative Regulations  Review Committee, December 16, 1974. Beceivcd
and filed:  Secretary of the State, January 2, 1975.  Effective Jan-
uary 2, 1975.

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                               49




                VIOLATING MONITORING REQUIREMENTS


                    STATE OF CONNECTICUT

                    RULES AND REGULATIONS

                            OF

          THE DEPARTMENT OF ENVIRONMENTAL PROTECTION
CONCERNING:  ASSESSMENT OF CIVIL PENALTIES FOR VIOLATION OF
             MONITORING REPORT REQUIREMENTS OF ORDERS AND
             PERMITS ISSUED BY THE COMMISSIONER
Section 22a-6b-504(a).   Title.  This section shall be known and
may be cited as "Civil Penalty Regulations:  Violation of Moni-
toring Report Requirements."


Section 22a-6b-504(b).   Definitions.  The following definitions
apply to this section:

      (1)   "Commissioner" means the Commissioner of the Depart-
           ment of Environmental Protection or his lawfully
           designated agent.

      (2)   "Composite sample" means any sample not identified
           as a grab sample and required in a permit or order
           that requires monitoring of a discharge.

      (3)   "Department" means the Department of Environmental
           Protection.

      (4)   "Grab sample" means any sample identified as a grab
           sample and required in any permit or order that re-
           quires monitoring of a discharge.

      (5)   "Monitoring report" means any report concerning dis-
           charges to the waters of the state by any person or
           municipality that a permit or order requires the
           person or municipality to file with the Department.

      (6)   "Municipality" means any metropolitan district, town,
           consolidated town and city, consolidated town and
           borough,  city, borough, village, fire and sewer
           district, sewer district and each municipal organ-
           ization having authority to levy and collect taxes
           or make charges for its authorized function,

      (7)   "Person"  means any individual, partnership, associa-
           tion, firm,  corporation or other entity, except a
           municipality.

      (8)   "State-approved, fee-basis wastewater laboratory"
           means any laboratory licensed or approved for the

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                              50
           analysis of wastewaters on a fee basis by the Conn-
           ecticut state agency charged with the responsibility
           of licensing or approving such laboratories.
Section 22a-6b-504(c).   Imposition of Civil Penalties.

      (1)   When the Commissioner determines that a person or
           municipality has failed to submit a monitoring re-
           port required by a permit or order issued pursuant
           to §§ 25-27, 25-54g, 25-54h, 25-541, 25-54J, 25-54k,
           25-541, or 25-54aa of the General Statutes, as
           amended,  on or before the due date or the end of
           the reporting interval specified in the permit or
           order or has submitted a monitoring report that
           does not include information required by such permit
           or order, the Commissioner may assess a civil pen-
           alty against such person or municipality pursuant
           to §22a-6b(a)(1) and (b) through (i), inclusive, of
           the General Statutes, as amended, and §22a-6b-101
           of the Civil Penalty Regulations.  If the permit
           or order calls for the inclusion of flow data in a
           monitoring report and the report is submitted with-
           out the required flow data, the Commissioner may
           treat the case as one in which no report has been
           submitted.

      (2)   Any person or municipality required by such permit
           or order to submit monitoring reports shall be liable
           for failure to meet any of the monitoring report re-
           quirements of such permit or order, notwithstanding
           any delegation of responsibility to another person
           to monitor or to complete and submit monitoring
           reports.

      (3)   (i)  When the Commissioner determines that a
                person or municipality is liable for the
                imposition of a civil assessment under
                §22a-6b-504(c)(1), he shall cause to be
                delivered to the person or municipality
                by certified mail or personal service a
                letter stating that the person or munic-
                ipality failed to satisfy the requirement
                for the monitoring report due on a spec-
                ified date and indicating the nature of
                the failure.

           (ii)  Such a letter shall be sent no later than
                90 days after the due date of the report
                in question.

          (iii)  The Commissioner may not impose a civil
                assessment under this  section on any
                person or municipality in regard to any
                monitoring report unless  (A) the require-
                ments of §22a-6b-504(c)(3)(i) have been
                fulfilled, or  (B) the  90 day period dis-
                cussed  in  §22a-6b-504(c)(3)(ii) has not

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                               51
                elapsed,  or  (C)  the  Commissioner  had  sent
                the  regulatee  a  §22a-6b-504(c)(3)(i)
                warning  letter concerning an  earlier  re-
                port with closely  similar inadequacies
                to those that  give rise  to the  current
                liability.   For  the  purpose of  this sub-
                section,  two reports shall involve
                "closely similar inadequacies"  if neither
                is submitted at  all  or if both  fail to
                include  required data on flow or  if both
                fail to  include  required data on  one  or
                more required  analyses even if  the anal-
                yses are different.


      (4)  The Commissioner may not impose a civil assessment
           under this section in regard to any monitoring re-
           port if one year or more has elapsed since the due
           date of that report.


Section 22a-6b-504(d).  Assessment List.

      (1)  The Commissioner shall  prepare a list of civil assess-
           ment amounts to be known as the Monitoring Report
           Assessment List.   This  list shall include assessment
           amounts based on the costs to persons and/or municipal-
           ities required to submit monitoring reports of grab
           and composite sampling, delivery for analysis, re-
           porting,  and analysis for each discharge character-
           istic covered- by monitoring programs administered
           by the Commissioner.   The amounts in the Monitoring
           Report Assessment List  shall (A)  for composite and
           grab sampling, delivery for analysis,  and reporting,
           be based on representative costs to a sample of
           persons and/or municipalities required to submit monit-
           oring reports, and (B)  for each ot the listed anal-
           yses, be equal to the typical charge of state-approved
           fee-basis water laboratories.  The Commissioner shall
           revise the relevant parts of the List if he deter-
           mines that any or all of the representative costs
           or charges on which it  is based have changed so much
           that such changes cause the amounts in the Monitoring
           Report Assessment List  to be too low to counter-
           balance the economic benefits of non-compliance or
           so high in relation to  those benefits as to be un-
           reasonable.

      (2)  No item in the Monitoring Report Assessment List may
           be included in a civil  assessment calculation unless
           the list containing the amount has been previously
           published in the Connecticut Law Journal.


Section 22a-6b-504(e).  Calculation of Assessments.   Any civil
assessment levied under this section shall be equal to the sum
of the amounts from the Monitoring Report Assessment List (A) for

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                                          52
     composite sampling  for each required  composite sample  for which
     no analysis is reported and for  grab  sampling for  each required
     grab sample for which no  analysis is  reported,  (B)  for delivery
     for each report not submitted,  (C) for analysis  for each re-
     quired  analysis for which no results  are reported,  and (D)  for
     reporting for  each  report not  submitted.  The Commissioner  shall
     also consider  the factors listed in §22a-6b(c) of  the  General
     Statutes, as amended, and he may, based on  this  consideration,
     lower the assessment to be levied.
     Section  22a-6b-504(f).   Schedule of Maximum Assessment Amounts.

            (1)   No  amount in a Monitoring Report  Assessment  List
                  shall exceed  the amount in the corresponding part
                  of the  following schedule  of maximum  amounts.
                       MAXIMUM AMOUNT (In dollar!)
                                                                   MAXIMUM AMOUNT (in dollar*)

(A) Sampling
1. grab aample*
2. composite aample**
(B) Delivery***
tcl Reporting**"
(D) Analyaie***"*
General

2, Biological oxygen demand
4. Total aollda
5. Total dlaaolvad eollda
6. Total auapended aolida
7. Total volatile aolidi
8. Aaewnla (a> X)
9. Xjeldahl nitrogen (aa K)
10. Nitrate (aa N)
11. Total pnoephorue (aa P)
12. Acidity
13. Total organic carbon
14 . Hardneaa
IS. Nitrite (aa H)
16. pa
Trace Metala
17. Aluminuii
IB . Antimony
19. Araenio
30. Barium
21. Beryllium
23. Cedmium
24. Calcium
25. Chromium VI
26. Chromium total
27. Cobalt
28. copper
29. Gold
30, Iron
31. Lead

10





X




X

X










20







X
X
X
X

X
X







X


30
X

x



X
X

X

X



X
X
X
X
X
it
X
X
X
X
X
X

40









X

X



X

X





50























60

X








.












other
160




70




•













32. Magneeium
33. Manganeae
34. Mercury
35. Molybdenum
36. Nickel
3B. Selenium
39. silver
40. Sodium
41 Thallium
42. Tin
43. Titanium
44. Vanadium
45. line
Hut^ente Anion. and Oraanic.
46. Oraanic nitrogen (aa Ml
47. Ortho-phoaphate (ai P)
41. Sulfate (ae-fpi),
• . 4». SuUiae !« »)*
50. Sulflte . -
51. Bromide
B. Chloride
H. Fluoride
. Chlorine-total reaidual
56. Oil and greaae
57. Phenole
SB. Surfactanta
59. Algicidea
60. Benildina
61. Chlorinated organic coapounaa
(except ueatlcldee)
62.' Peaticidea
Phyaical and Biological Parametera
63.. Color
64. Specific conductance
65. Turbidity
66. Fecal Itrectococcl bacteria
67. Colifom bacteria (fecal)
6B. Coliform bacteria
69. Other analyaea
'
10



















X
X


20









X
X
X
X
X
X

X





X



30
X
X
X
X
X
X
X
X
X
X
X
X

X



X










40

X

X








X
X
X
X
X




X
X

50















X






X
60














1








other
















70
70





  •For every grab aample required by the penult or order for «hioh no analyaei are reported on or before the due date or the end of the reporting interval
   epacif led in the permit or order.
 " For every ocajoeita ample required by the permit or order for nhich no analyeea are reported on or baton the due data or the end of the reporting
   Interval apaclfiad in tha permit cr order.
 ••• For every report rot aubnitted on or before tha due date or tha and of the reporting interval apaciflad In the permit or order.
**** For every report not aubnitted on or before tha due date or tha end of tha reporting interval epacifiad in tha permit or order.
***** For evexy analyaia required by the permit or order for leiich no reaulta are reported.
             (2)   The Commissioner  has determined that the  maximum
                   civil  penalties provided in  this schedule will  in-
                   sure  immediate and continued compliance and will

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                                53
          protect  (i) the public health, safety, and
          welfare;  (ii) the public trust in the water,
          land and other natural resources of the state;
          and  (iii) the reasonable use of property.
          These maximum amounts are just large enough
          to ensure that the economic incentive for non-
          compliance with monitoring report requirements
          will be eliminated in every case, thereby
          ensuring immediate and continued compliance
          and as much protection of the three other
          listed factors as would higher assessments.
          Because the schedule sets maximum amounts,
          it allows these three factors to be considered
          in setting lower assessments.
Section 22a-6b-504(g).   Maximum Assessment.  No assessment shall
exceed $1000 per monitoring report not submitted in completed
form on or before the due date or the end of the reporting inter-
val specified in the permit or order.


Section 22a-6b-504(h).   Limited Grounds for Non-Imposition  of
Assessments.

      (1)   The Commissioner shall not levy an assessment
           under §22a-6b-504 if the person or municipality
           assessed proves that the violation of monitoring
           report requirements was caused by strikes or
           lockouts; riots, wars, or other acts of viol-
           ence; floods, hurricanes, or other Acts of God;
           or other equally severe, unforeseeable and un-
           correctable accidents; where such acts or events
           were occasioned directly upon the person or
           municipality assessed or another under contract
           to that person or municipality.

      (2)   Nothing in this section shall prohibit a person
           or municipality from proposing, or the Department
           from accepting, an agreement which protects from
           civil assessment liability monitoring report re-
           quirement violations caused by other acts or
           events not covered by subsection (1) of this
           Section such as contractors' or suppliers' delays.

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                         54
      BASIC   CEP  PROCEDURES
 ADMINISTRATIVE  REGULATIONS
     Kegulatiant  and notices  published  herein art
     printed exactly in submitted by (At forwarding
     agencies.   These,   being   official   document!
     rubinilltd by  Ike  retponsibli  agencies,  art
     consequently  not subject  to  editing by  the
     Commission  on Official Legal  Publications.
DEPARTMENT OF ENVTBONMEWTAX PROTBCTIOH
             AjMument of Civil PenmltlM

Boo. 22a-6b-100.  Title
  Section 22a-pb-100 to 22»-6b-900,  inclusive, (ball  be
known and may be cited as "Civil Penalty Regulation*."

See. 22a-6b-101.  Enforcement proceeding!
  (a) If the commissioner has reason to believe that a
violation has occurred for which a civil penalty has been
eHtablished, he  may send to the violator by certified mail,
return receipt requested, or by personal service, a notice
which shall include:
  (1) A reference to the section of the statute, regulation
or order involved;
  (2) A short and plain statement of the matters asserted
or charged;
  (3) A statement of the amount of the civil penalties to
be imposed upon finding  after hearing that  a violation
Baa occurred or upon a default;
  (4) A statement of the  party's right to a hearing.
  (b) The person to whom  the notice is addressed shall
have twenty days from  the date of receipt of the notice
in which to deliver to the commissioner written applica-
tion for a hearing.  If a hearing is requested then,  after
a hearing and upon a finding that a violation has occurred,
the  commissioner may  issue a final order assessing  a
civil penalty under this  section which is not greater than
the  penalty stated in the notice. If such a hearing is not
so requested, or if such a request is later withdrawn, then
the  notice shall, on the  first day after the expiration of
such twenty day period or on the'first day after the with-
drawal  of such request for hearing,  whichever is later,
become  a final order of the commissioner and the matters
asserted or charged in the notice shall be deemed admitted
unless modified by consent order, which  shall be a final
order.  Any civil penalty  may be mitigated by the com-
missioner upon such terms as he in his descretion deems
proper  or necessary upon consideration of the factors
set  forth in section  2 (b)  of Public Act 73-665.
  (e) Final orders assessing civil penalties not appealed
pursuant  to  section  2  (f)  of Public Act   73-665,  as
amended, shall  be filed for execution pursuant to section
2 (h) of Public  Act 73-665, as amended. Such final orders

do not waive or forsake any other remedies or  powers the
department may have with regard to the matter in  ques-
tion.
Sec. 22a-6b-102.  Conflict and severance
  (a) The provisions of this section are in  addition to
and in no way  derogate from any other enforcement pro-
visions contained in any statute administered by the com-
missioner.  The powers, duties and remedies provided in
such other statutes, and the existence of or exercise of any
powers, duties  remedies hereunder or thereunder  shall
not prevent the commissioner  from exercising any other
powers, duties  ot remedies provided herein, therein, at
law or in equity.
  (b) The invalidity of any word, clause, sentence, sec-
tion, part or provision of these regulations shall not affect
the  validity of  any  other part which  can be given effect
without such invalid part or parts.

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                55
           ATTACHMENT C
THE ECONOMICS OF ECONOMIC REMEDIES

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                              56
                         ATTACHMENT C

              THE ECONOMICS OF ECONOMIC REMEDIES


     Economic remedies must be just large enough to make compliance
economically attractive:  they must take away the entire benefit
of noncompliance — including whatever return the noncomplying
regulatee may be able to earn on the use of the money it has not
spent on pollution control for however long the delay continues.
Such economic assessments will ensure voluntary compliance because
they simultaneously remove the incentive to delay and guarantee
those who do comply a commercially attractive "return" on their
abatement investment — not having to pay the assessment.  This
"return" will be sufficiently attractive to make citizens feel
that compliance "pays" because it is calculated at the cost of
capital rate appropriate for each source, i.e. because it is as
large as the returns the source is obtaining on investments it
has recently chosen to make.

     An economic assessment is defined to be that payment which
would, if made at the end of each month throughout a specified
assessment period, have the same net economic impact on a company
as the  expenditures necessary for compliance with Department
requirements throughout that assessment period.  In other words,
the present value of the stream of assessment payments made over
the assessment period would equal the present value of the net
flow of compliance costs over the same period.

     Economic assessments are based on a simple economic calculus
that is commonly used by businessmen in evaluating investment
alternatives.  This calculus requires four main steps.

      (1)  Identify the gross cash flow of all expenditures
          necessary for the source to comply with the law
          during each year of the assessment period and ad-
          just for anticipated inflation (deflation).  Both
          initial and replacement installed capital costs and
          operating and maintenance expenses must be considered.

      (2)  Obtain net cash flow by adjusting the figures in
          (1) for the effect of tax deductions and credits,
          chiefly for depreciation of capital equipment and
          for operating and maintenance expenses.

      (3)  Discount this net cash flow to a present value
          (using a cost of capital rate if the source is
          a business).

      (4)  Calculate the final civil assessment as that amount
          which would, if paid monthly over the assessment
          period, create a stream of payments whose present
          value  (using the same discount rate as in  (3)) would
          equal the present value of the cost of compliance.

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                                57
The rest of this Attachment outlines this methodology in greater
detail.  It explains what information is needed, how this infor-
mation must be adjusted to take the impact of taxes into account,
how the calculations are handled by the assessment formula, and
how this formula is derived.  It then explains how this formula
was used to establish the schedules of maximum civil assessments
found in the regulations; and, finally, it briefly explains how
the formula is used to calculate individual assessments.
DETERMINING THE COSTS
OP COMPLIANCE
CASH FLOW	

     The first step in determining how large an economic assess-
ment should be is to identify what costs will be incurred in
each year of the period during which control activities can be
presumed to continue.  (How these costs are determined, the most
difficult step in making individual assessments, is explained in
Parts III and V of Volume II.)  These costs, and how they will
be handled in the assessment formula, are outlined below briefly:

     (1)  Initial capital costs for pollution control
          equipment/facilities, considered as an ex-
          penditure in year zero.

     (2)  Replacement costs for this abatement equipment.
          It is assumed that the equipment will be re-
          placed at the end of each depreciation period
          within the assessment period and that the cash
          outlay is increased  (decreased) assuming an
          inflation  (deflation) rate that is the average
          of the rates experienced over the three years
          prior to the date of the assessment.  (The
          assessment period is 20 years for reasons dis-
          cussed below; in individual assessment cases
          the depreciation period is presumed to be 10
          years unless the Commissioner finds otherwise.
          The 10 year figure is based on a CEP survey
          of the typical life expectancy of commonly
          used air pollution control equipment.)

     (3)  The salvage value of any equipment to the extent
          that it is not fully depreciated at the end of the
          assessment period.  This factor is, of course, a
          credit that reduces the net cost.  Salvage value
          is also adjusted for inflation (deflation).

     (4)  Annual operating and maintenance costs,  i.e. such
          costs as are required to ensure the continuous
          effective operation of the pollution abatement
          equipment over its full depreciable life.  These
          costs are increased  (decreased) each year to
          account for inflation (deflation).

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                              58
     All of these expenses are affected importantly by the impact
of various tax provisions.  The assessment formula must consider
the effects on a source's U. S. income tax of:

     (1)  An investment tax credit for the purchase of
          new abatement equipment.

     (2)  The ability to deduct from taxable income
          each year:

          (a)  depreciation of the capital cost
               of equipment over its useful life
               (usually at accelerated rates approved
               for such equipment),  and

          (b)  annual operating costs.

     In developing assessments from the net cash flow of the costs
of compliance created from these cost estimates and tax considera-
tions,  the following assumptions apply:

     *   Tax savings are calculated as if the violator is in
        a tax bracket with a known effective rate  (the vari-
        able T in the assessment formula)  in all years.

     *   Regulatees either have or will have sufficient taxable
        income to take full advantage of any tax credits or
        deductions to which they are entitled by virtue of
        required control expenditures, or their effective
        U. S. income tax- rate  (T) will be 0.

     *   An investment tax credit is in effect, and is obtained
        at the time equipment is purchased.

     *   For purposes of discounting, operating costs are con-
        sidered to be paid and corresponding tax savings real-
        ized at the beginning of each year.  Tax savings from
        depreciation are realized at the end of each year.

     *   If equipment is not fully depreciated at the end of
        the assessment period, it can be sold at a salvage
        value equal to its economic worth.  In that case a
        portion of the tax credit must be refunded, pro-rated
        according to the proportion of useful life remaining.
        (The formula for salvage value is given in the deri-
        vations section below.)

     *   For all purposes other than calculating the deprecia-
        tion tax deduction, where realistically accelerated
        depreciation in case by case assessments is used,
        straight-line depreciation is used.

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                               59
 THE  ASSESSMENT
 FORMULA	

      Department  staff  do not have  to push their way through  the
 host of  calculations required to set out the costs of compliance
 cash flow,  adjust  it for tax and inflation, discount to present
 value, etc.  All these calculations are handled automatically by
 the  assessment formula.  All the staff need do is put a tape cas-
 sette with  the formula into a desk calculator and type in a  few
 variables — and all this work will be done in seconds.

      This section  explains the formula and its derivation.

 Notation

 Input variables:

      AP  = Assessment period, in years.

      CC  = Annual cost  of capital or discount rate, as a
          decimal  fraction.

      EL  = Expected life of equipment, in years.

      DL  = Depreciable  life of equipment, in years.

     CCE  = Capital cost of equipment for initial equipment,
          in dollars.

      OP  = Operating costs in first year, in dollars.

      RI  = Annual rate of inflation, as a decimal fraction.

      T  = Effective marginal U.S.  income tax rate, as a deci-
          mal fraction. (If there  is a state corporate income
          tax, T would be the total effective tax rate.
          It would be given by the formula:   T = TS +
          (1-TS)TF, where Ts is the state corporate income
          tax rate and Tp the federal one.)

     TC = Investment tax credit rate,  as a decimal fraction.

Output variable:

     CA = Civil  assessment per month,  in dollars.

Other variables:

    PVO = Net present value of operating costs over the
          assessment period,  net of any tax  savings arising
          from operating  costs,  in dollars.

   PVIE = Net present value of initial equipment,  net of any
          tax credits and savings arising from the purchase
          and depreciation of  this  equipment,  in dollars.

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                              60
    PVE = Net present value of equipment cost over the entire
          assessment period (includes the discounted value of
          initial and replacement equipment, less the value
          of tax credits and deductions and of any salvage
          value at the end of the assessment period), in dollars,

      A = Amortization factor, giving the amount of the monthly
          payment required per dollar of present value to be
          amortized, as a decimal.

     Formula

     The civil assessment is given by formula (1) below, with
the additional variables defined by equations (2) through (5).
(These formulae are derived in the following section.)
 CA = (PVO + PVE)  A


                  CC
PVO =
   PVIE =
                 t1  +
                 \CC -
(1-TC) -
"l (l +
1 -u +
1 -/I +
v1 +
T
(DL) (CC
RI\AP"
CC/
RI \
CC)
:)
                                      CC)°L
                                               CCE
    PVE  =
                  (1/12)
      A =  (1  +  CC)        -  1
                         PVIE
(1)


(2)




(3)





(4)
           1  -
                                                   (5)
                 (1  +  CC)
                         AP
     Derivations
CA:
     The total present value of compliance costs is the  sum  of
PVO and PVE.  The economic assessment is the monthly payment
which amortizes this sum over AP years.  Hence, the sum  is mul-
tiplied by the amortization factor, A.

PVO:

     We assume that operating costs are paid in the beginning
of the year.  Each year operating costs increase by an infla-
tion factor of (1 + RI), regardless of the age of equipment
then in use.  We convert operating costs for year I to a present
value by discounting by the factor I/  (I 4- CC)   .  Assuming
T is the current maximum rate of .48, there is a tax savings
of 48 percent of operating costs each year, so net operating
costs are .52 of gross operating costs each year.

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 In general,
             AP
     PVO =
           1 = 1
                               61
       (1 - T) (OP) (1 + RI)
                                      1-1
                                (1 + CC)1"1
     Formula  (2) above is an equivalent but explicit  formula,
derived from the sum of a geometric series.
PVIE:

     The cost of initial equipment is CCE.  Deducted  from  this  is
the tax credit  (the variable TC) obtained immediately, and tax
savings of the  fraction T of allowable depreciation for each year
of depreciable  life of the equipment.  Using straight-line
depreciation, annual depreciation is CCE/DL-  Depreciation in
year I is discounted by the factor I/  (1 + CC)1.  Thus

                                 DL
PVIE = CCE - (TC) (CCE)


Formula (3) above is equivalent.
                                 ¥±!       frn? \     i
                                 £    T  (=±£   	-
                                1 = 1     * EL / (1  +
                                    (1 + CC)
PVE:
                                th
     The equipment cost of the K   set of replacement equipment
 (where K = 0 for initial equipment) is equal to the purchase
price of the initial equipment times a cumulative inflation fac-
tor of
               K x EL
       (1 + RI)

     The savings due to the tax credit on replacement equipment
and to deductions for depreciation are proportional to equip-
ment cost, and are thus also inflated by the same cumulative in-
flation factor.  Note that all expenditures and savings on this
piece of replacement equipment occur (EL) x  (K) years further
in the future than the corresponding cash flows for the initial
equipment purchase.  Provided that the entire useful life of the
K   replacement equipment lies within the assessment period, its
contribution to net pr-esent value is
            k(EL) (K)
                     PVIE
     If the assessment period AP is an integral multiple of the
equipment life EL, then the useful life of all replacement equip-
ment will be within the assessment period.  In that case,
     PVE  =
(AP/EL) -1

K?0
                                    (EL) (K)
                          l + CC
                                          (PVIE 1

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                                 62
     Formula (4)  is equivalent but simpler.

     If AP is not an integral multiple of EL,  then the last piece
of replacement equipment still has a salvage value at the end of
the assessment period.  We assume that the salvage value is equal
to the economic value of the equipment, which is the present value
of remaining "services" of this equipment plus the tax savings
from any remaining allowable depreciation.  If the equipment was
purchased in year J and has a remaining lifetime of I years (where
I is less than EL) its salvage value is
     CCE (1 + RI)
                 J
(1  -  TC)  +  -4=-  (TC)
     This salvage value is such that the net present value of
equipment costs over any period does not depend on what combina-
tion of new and used equipment is owned during that period.  As
a result, equation (4) for PVE holds regardless of whether AP is
an integral multiple of EL.

A:

     The amortization factor is based on the  standard formula for a
monthly annuity of unit amount for AP years at an annual  interest
rate of CC.  Since the formula is for monthly payments, the
numerator is the monthly cost of capital.
DETERMINING
MAXIMUM ASSESSMENTS

     For purposes of calculating maximum assessments, we  assume
the following values:   (Note that CA increases with increases  in
CCE, OP, RI, CC, and AP, and decreases with increases  in EL, DL,
T and TC.)

     *  RI = .15  (i.e., 15%).  The typical rate of inflation
        has increased markedly over the last  several  decades
        and reached levels not far from 15 percent in 1974.

     *  CC = .20  (i.e., 20%).  Over the long  run, the cost
        of capital has  generally exceeded the inflation rate
        by about  5 percent to provide an adequate return  and
        to compensate  investors for inflation.

     *  AP = 20 years.  Twenty years is a common time frame
        for evaluating  many capital projects.  Since  abate-
        ment equipment  is auxiliary to production facilities,

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                              63
        it or replacements will have to be used for the lifetime
        of the underlying plant requiring control if the source
        is to remain in compliance with the law.  Consequently,
        it is reasonable to assume that sources evaluating a
        commitment to abatement will think in terms of the
        common 20-year period.   Moreover, a common assessment
        period helps ensure that assessments are comparable
        and therefore fair.

     *  EL = 5 years.   Very few significant types of air pollu-
        tion control equipment  have useful lives less than five
        years long.

     *  PL = 5 years.   Federal  tax law allows pollution
        abatement equipment to  be depreciated over a five year
        period,  or over the expected lifetime of the equip-
        ment, whichever is shorter.

     *  T = .48 (i.e.,  48%).  Although a zero tax rate is pos-
        sible,and assuming a rate lower than the maximum cor-
        porate rate could be defended easily and would increase
        the assessment maximum  significantly, the schedule of
        maxima used in Sections 602 and 603 assume the 48 percent
        rate because it is the  rate likely to apply in all but a
        small minority of the cases in which assessments are
        likely.

      *  TC =  .07  (i.e., 7%).  This is the  likely rate of  the
        U. S. investment tax credit.

     *  CCE, OP = maximum figure in range.  To obtain the maxi-
        mum assessment when CCE and OP may assume any value over
        a specified range, CCE  and OP are set at the upper limits
        of their respective ranges.


     An Example:  Derivation
     of a Maximum Assessment

     The following computations illustrate the calculation of the
civil assessment for the upper  left cell in Schedule A of §602(d)
of the Air Compliance Civil Assessment Regulations.  (This cell
is for cases with cost of equipment, CCE = $2500 and annual operat-
ing cost, OP = $1000.   Other input variables are set at the values
specified above.

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                              64
                                          20
       PVO = .52
      PVIE =
       PVE
                     .20
                                  1 + '15
                     .48
[ f1H
1-llH
1 f1H
L1 - v<
5(.20
IS1
- .20,
^ .15^
h .20^
/ t it
20
5
                        + .20)5j
                             (1607.25)
                                 1000 = 7152.23
2500 = 1607.25
                                                    4806.26
         A =
        CA =
 (1 + .20)(1/12)-1          = .015719


    " (1+20)20

(7152.23 + 4806.26) .015719 = 187.98
[by  (2)]



[by  (3)]


[by  (4)J




[by  (5)]



[by  (1)]
     In other words, a regulatee  required to purchase equipment
worth less than $2500 that will cost less than $1000 a year to
operate cannot be assessed more than $187.98 a month for failing
to control its emissions as  required.
SETTING
INDIVIDUAL ASSESSMENTS  .

       Individual assessments  are  determined using the same
economics and assessment  formula as were used to fix the maximum
assessment schedules.  However,  the Department will utilize cur-
rent, real values for CCE,  OP,  EL,  DL,  RI,  T, TC and CC.

       *  Equipment Costs (CCE)  will be based on Department
          estimates of the  installed equipment costs re-
          quired to bring an uncontrolled source into com-
          pliance or on evidence of the actual cost.

       *  Operating and Maintenance Expenses  (OP) will be
          based on Department  estimates of the annual cost
          of operating and  maintaining this equipment prop-
          erly.

       *  Equipment Life  (EL)  is 10 years unless the
          Commissioner determines  otherwise in a correc-
          tion hearing.   He will use reliable tables from,
          e.g., the U. S. EPA  and/or IRS in doing so.

       *  Depreciable Life  (DL)  is 5 years unless Federal
          tax law changes or unless the Commissioner de-
          termines that the lifetime of a particular piece
          of equipment  (and therefore its depreciable life)
          is less than five years.

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                              65
       *  The Rate of Inflation (Deflation) (RI) will be
          valued as an average of recent annual rates based
          on an appropriate price index.

       *  The U. S. Income Tax Rate  (T) applicable to the
          source will be assumed to be 48 percent if the
          source is a corporation (with very limited ex-
          ceptions) and zero percent if it is a public
          body or a nonprofit institution.  The rate will
          vary if the source is an individual or partner-
          ship.

       *  The Investment Tax Credit  (TC) will be the rate
          set in the current tax law.   (It is now 7 per-
          cent. )

       *  The Cost of Capital (CC) will be set in most
          cases as the marginal rate obtaining in the
          industry at the time.

       Chapters II - V of Volume II, Part III, explain how to
estimate installed capital and annual O&ll costs, to adjust for
inflation, to take different individual tax rates into account,
and to obtain the cost of capital so critical to the formula
for Air Compliance cases.  Parallel portions of Volumes III and
IV explain how to take these steps in Water Compliance and
Water Resources cases.

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                                66
                         ATTACHMENT D
                       PUBLIC COMMENT ON
                   ECONOMIC LAW ENFORCEMENT
                        IN CONNECTICUT
     This attachment contains representative excerpts from the
well over 100 pages of written testimony submitted when the
first major set of CEP regulations went to public hearings.  A
sampling of the associated press coverage follows.   (A complete
set of these comments and press stories is available in the
Department.)

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                67
EXCERPTS FROM PUBLIC TESTIMONY
    ON PROPOSED REGULATIONS

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                                    68
Statements
William J. Baumol, Professor of Economics, Princeton and New York
Universities

     It is a sensible and economically sound regulatory approach.  Its
innovative use of objective economic criteria to determine the size of
the disincentive necessary to induce compliance in each case ensures that
each violator is given an effective incentive while minimizing agency
discretion....
     I feel that these proposed regulations are designed with a conserva-
tive professionalism, balance, and economic rationality....
     This formula approximates reasonably the economics of the violator's
situation and the assessment level that will be just sufficient (1) to
make compliance become economically attractive, and (2) to remove the
competitive advantage non-compliance often gives violators vis-a-vis law-
abiding companies.  It does so in a relatively simple and straightforward
way that will be understood by businessmen and that is administratively
workable....
     It will calculate effective but not excessive assessments —
     In every case the potential assessment calculated by the formula
would make investing in abatement as attractive as other investments
firms in the same business as the company being regulated have recently
found commercially attractive.
     The regulations would not allow the Department to impose assessments
any larger than this economic incentive:  in no case can the State charge
a business more than is necessary to make compliance with the law as
attractive as non-compliance....
     It is practical —
     It is understandable....
     It is predictable —
     To my knowledge it represents the first program of its  kind to
attempt to structure civil assessments on the basis of cost of compliance
with environmental  standards	
Marvin Chirelstein, Professor of Law, Yale Law School

     These regulations...guarantee.../the businessman/ a commercially
attractive return on his abatement investment—in the form of saved
civil assessments....
     This financial "return" removes the chief factor that now dis-
courages prompt compliance.
     These regulations also ensure that both the law-abiding majority
and the few law-breakers are protected from any possible abuse of dis-
cretion by the Department	
     The enforcement system these regulations would create would have
one more important if less formal safeguard built in.  The Department's
staff would be forced to think of the cost of compliance whenever it
considered taking enforcement action.  The staff would, in other words,

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                                   69
be required de facto to make an informal  "economic impact statement" some-
what analogous in reverse to an environmental  impact statement,
     I am impressed with the success with which the Department's  regula-
tions achieve the dual objectives of effectiveness and fairness.   Such
success is unfortunately quite rare.  And it is, I believe,  increasingly
important in the regulatory area....
     The Department of Environmental Protection's proposed civil  penalty
regulations breaks important new ground in developing such safeguards.
The objective economic basis for assessing penalties they propose is an
especially important innovation.  It could be used in the very large num-
ber of regulatory contexts in which the person subject to regulation must
shoulder some cost in order to comply with the law.  It is obviously well
suited to environmental regulation....
Victor F. Tomasso, Vice President, Tomasso Construction Company

     It is to the credit of the Department and the State of Connecticut
that the proposed regulations represent a novel and creative alternative
to protracted and costly judicial  litigation leading to the eventual
compliance with the State's environmental protection laws.   In large
measure, the regulations are directed at the small minority of Connecticut
businesses that have, for one reason or another, failed in  their responsi-
bility in maintaining a healthy and clean environment....
     It is my belief that the administrative assessment of  civil penalties
being developed in these regulations should and will be applied in other
environmental control areas....
Brian Sullivan, Staff Attorney, Connecticut Citizen Action Group

     Existing enforcement procedures have required the DEP to rely
initially on the Attorney General  or local  prosecutors plus the courts
to impose sanctions on these companies.   DEP proceedings  have dragged on
often for two and one-half years.   The new system should  decrease
enforcement delay and increase its efficiency by permitting penalties to
be imposed directly by the DEP subject only to a reviewing function of
the courts	
     The general experience of the administrative process has been to
create the unrealistic threat of large sanctions, but in  fact to impose
them so infrequently as to negate  the deterrent effect.
     The new DEP regulations, on the other hand, should permit sure,
predictable imposition of penalties....

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                                   70
Richard B. Stewart, Professor of Law, Harvard Law School

     ...the proposed Connecticut regulations bring an innovative standard
to environmental law enforcement by removing the economic incentives to
forego the installation of environmental controls....
     ...I believe that the proposed regulations will have broad remedial
effect in encouraging compliance with air quality standards.
     The Department's proposals seem to combine maximum enforcement flexi-
bility with limited administrative discretion....
     For the Department, environmental law enforcement is made more prompt
and efficient by avoiding recourse to costly, time-consuming judicial
litigation.  For the regulatees, the proposals promise simplicity, certainty,
and equity....
     Moreover, these regulations protect those regulatees which have com-
plied with air quality standards from unfair competition; the implementa-
tion of these regulations will assure a "negative return" to any regulatee
who attempts to avoid compliance costs....
D. Daryl Wyckoff, Lecturer in Business Administration, Harvard Business
School

     The general approach of identifying the level stream of payments
which are equivalent to the anti-pollution project cash outflows in net
present value terms is both technically justifiable and administratively
feasible.  Furthermore, it has the effect of applying constant pressure
on the manager to comply rather than continue to pollute.  This avoids
the pitfall of the fine in fact becoming a "license to pollute."  If we
assume that the enlightened manager makes investment decisions through
the accepted "capital budgeting" procedure, then he will consistently
select the pollution control alternative....
Andrew J. Gold, Professor of Economics, Director of Urban and Environ-
mental Studies, Trinity College

     If you ask an economist what administrative technique to use to get
the law enforced the answer would so closely approximate this bill that
you could hardly distinguish it from what his own works must be.  Put
simply, the firm must be placed in a situation where the benefits of
compliance exceed the benefits of noncompliance and there is no certain
way to do that except by appropriate charges....
     There is no other way to guarantee compliance.  Anyone familiar
with the enforcement of standards in other areas could quickly testify
to the impotence of administrative agencies faced with either inadequate
penalties or remedies or the necessity of overkill	
     The current DEP bill moves then between impotence and overkill in
a way that maintains legislative control by specifying in advance the
criteria for penalty charges	

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                                    71
     In summary, the method of civil  penalties calculated as they are in
this bill  seems like the only rational  way to secure enforcement of
legislatively defined purposes at a reasonable cost and with due regard
for legislative direction....
Thomas Nelson., Professor of Law, University of Connecticut Law School

     The current cumbersome, all-or-nothing enforcement procedures
available to the Department of Environmental Protection now provide an
economic incentive to a firm to attempt to avoid or delay compliance....
Ralph S. Brown, Jr., Professor of Law, Yale Law School

     It may be reasonably surmised that the nonconformist is chiefly
influenced by the economic advantages that he gains from his failure
to comply, when his competitors are in fact complying.
     This regulation seeks to remove that improper advantage.  It uses
the very elements of operating costs and equipment costs that would be
taken into account by a calculating wrongdoer, and turns them against
him....
     In a time when the use of administrative penalties is rapidly
expanding, this ingenious proposal which is precisely and measurably
related to the shortcomings that it seeks to remedy may have and
should have wide influence.
     To be sure, your Department is concerned with carrying out its
own mission for Connecticut.  But it is certainly no discredit that
it has produced a way of doing so that seems far superior to existing
techniques.

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                     72
       REPRESENTATIVE PRESS COVERAGE




                  OF THE




          PUBLIC INTRODUCTION OF




CONNECTICUT'S ECONOMIC ENFORCEMENT APPROACH

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                                       73
NEW  HAVEN  REGISTER,  FRIDAY,  NOVEMBER 15,  1974
       Innovative  Plan   To  Fine  Air  Polluters
    air
    m,
  Some good features are boasted by
the first-in-the-nation method proposed
by State officials for penalizing compa-
nies that^ neglect to stop polluting the
            by the Connecticut Depart-
            ivironmental Protection
             es incentive to both the
           e companies to get on with
         meeting clean-air standards.
         companies now are getting
away with pollution neglect because the
State hesitates to crack down on them.
If present tough penalties-were invoked,
many firms would be forced out of busi-
ness. Right now there are 10,000 pollu-
tion sources registered with the DEP.
With the State reluctant to do itself eco-
nomic  damage by losing business and
industry, the harsh penalties are not
aggressively enforced.
   The proposed new  regulations for
imposing civil penalties might yield re-
sults without crushing companies. In-
stead of the stringent approach,  which
too  01 ten is  'unusable, the DEP  would
take the financial advantage out of
pollution.
   Under the innovative system,  the
size of a penalty, to be imposed on a
monthly basis, would be determined by
estimating the cost of acquiring anti-
pollution equipment needed by the firm
and the cost of maintaining it. Then the
State would figure the amount of return
the compnay could count on if it invested
that amount of money instead of putting
it toward anti-pollution devices. That's
what the firm would be charged.

   There is an element of fairness to the
plan that makes it worth considering. It
would eliminate  the  competitive edge
that some firms gain by refusing to in-
vest in anti-pollution  equipment. Right
now, many companies that have spent
money to fight air pollution have done so
at a disadvantage if competing firms
fail to comply with standards.

   The formula proposed seems to be a
realistic approach that would allow the
State td~take an aggressive anti-pollu-
tion  stance without undermining  the
State's economy.

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                                            74
  NORWICH BULLETIN,  WEDNESDAY,   NOVEMBER  13,   1974

 DEP   Considers   Plan
 To   Fine  Polluters
       ByKELLYANTHONY
   NORWICH - The State Department
 of Environmental Protection (DEP)
 will begin to  tighten its reign on air
 polluters refusing to obey clean air
 laws, by reviewing a proposed set of
 regulations to fine violators  who are
 escaping  through  loopholes and
 delaying tactics.
   The  public  hearing  for  Eastern
 Connecticut is slated for tonight in i
 Norwich City Hall at 7:30, and is one of
 four  regional hearings  being held
 throughout the state this week by DEP.:
   Industrial polluters which formerly
 gained an economical advantage over
 their competitors by failing to comply
 with the law  will now be sulject to
 fines. Under The Enforcement Act of
 1973, the  General Assemb-y has
 authorized DEP to assess fines !»i offset
 the savings some industries rer.'ized by
 not installing pollution control devices.
   When the  new regulations are
 adopted in their final form, it will speed
 up the enforcement process to make the
 cost of complying with the law less
 expensive than not complying, a
 spokesman said.
   Under the new regulations, once DEP
had issued a notice of violation, dtlng
both the violation and a proposed
assessment which is 'derived from a
complex formula, the polluter  would
have 20 days to comply or appeal.
  Any hearing must then be conducted
by the commissioner or deputy com-
missioner personally, or by a hearing
officer from the Office of Adjudication,
a separate  DEP  board. Upon final
consideration, a decision could include
a   reduced  assessment  or  no
assessment. The violator would also
have the right of  appeal to Hartford
Superior Court.
  Existing  state  and federal air .
pollution control laws,  even entirely
disregarding the  Enforcement Act,
subject violators to injunctions, money
penalties up to $180,000 a week, and, in
some cases, imprisonment.
  In (contrast, the Enforcement Act
only  authorizes  assessments which '
would match  the savings of non-
compliance, and no proposed  total
assessment could exceed $25,000, phis
$1,000 a day once a violator was placed
under a final order.  DEP,: however,
would int.erit the initial enforcement
                                                             1 responsibility Instead of the Attorney
                                                             (General's office. '-
                                                                Richard  B.  Stewart, • assistant
                                                              professor of 'law at Harvard, called
                                                              Connecticut's  regulations  "an In-
                                                              novative standard  to environemntal •
                                                              law enforcement  by removing  the
                                                              economic incentives to  forego the in-
                                                              stallation of environmental controls."
                                                                Former DEP  head Dan Lufldn also
                                                              testified that "these regulations go •
                                                              long way to protect environmentally
                                                              responsible    businesses    from
                                                              irresponsible competitors and, at the
                                                              same time, bring flagrant polluters into
                                                              compliance."
                                                                Marvin Chirelstein, a  law professor
                                                              at Yale and an expert in areas of cor-
                                                              porate and tax  law, referred to  the
                                                              regulations  as  a  "realistic  set of
                                                              economic criteria,"  but  noted  the
                                                             difficulty- of determining.the exact cost
                                                             of capital would invite  litigation and
                                                             suggested    other   "tightening"
                                                             procedures, all of a minor nature.
  NEW  HAVEN  JOURNAL  COURIER,  WEDNESDAY,  NOVEMBER  13,   1974
DEP   Wants   Polluters   fined
Amount   Saved  By  Ignoring  Rules
 HARTFORD (AP) -  The
Connecticut Department of En-
vironmental Protection wants U
fine polluters the same ammnt
of money they are saving by ig-
noring air-emission standards.
 The DEP is proptsing regu-
lations that would allow it to
assess civil penalties on  com-
panies  that  avoid  complying
with state pollution  standards.
The penalty charged each pol-
luter wsuld be the amount the
firm would get if it invested the
m»ney needed to  meet the
standards.
  Andrew Weissman. an attor-
ney who helped draft the pro- the courts and fashion the pun-
                       posed regulations, said Tuesday
                       that Connecticut is the  first
                       state to try to eliminate the
                       economic advantage of ignoring
                       pollution standards.
                        Weissman  said  at a press
                       briefing that present penalties
                      i are  ineffective because  they
                      1 are so harsh they are unusable.
                       He said state and federal fines
                       now total HM.MO a week and
                        court  orders U halt  pollution
                        simply would force a company
                        'Out of business. -,
-ishment to fit the circumstance
of each firm found in violation.
  Here is how the new regu-
lations would work:
1 A company found in violation
Vould be sent a warning letter
      it M days to submit a
     table plan for ending the
 pollution. If that condition were
 not met, the firm would be as-
 sessed  the  penalty for each
                       . The 1973- General Assembly
                                             - ally would be determined by
                                                      •"» «taWnh| it,
                                       figuring the amount of return
                                       the company would get if it in-
                                       vested that money instead of
                                       putting it toward anti-pollution
                                       devices and charging the com-
                                       pany a penalty equal to the in-
                                       terest it could have earned.
                                        Weissman Hid that fornula
                                       would eliminate any advantage
                                       to the firm to-avoid investing in
                                       emmission  controls.  He  said
                                       some firms have had an wfair
                                       advantage by ignoring the law
                                       while their competitors have
                                       voluntarily complied
                                       > He  said^ 10,000  pollution
                                       sources are registered with the
                                      ^department*
      This A.P.  story  was  carried  in most state  papers.

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                                            75
         NEW  LONDON DAY,  TUESDAY,  OCTOBER  22,  1974
  Pollution penalty proposed
     NEW HAVEN  - Pro-
   posed  civil penalties, de-
   signed to make it unecono-
   mical  for businesses and
   industry to pollute the air,
   were outlined for members
   of the Connecticut Bar As-
   sociation  Monday  by offi-
   cials from the state Depart-
   ment  of Environmental
   Protection.
    The  explanation came
   during one of several semi-
   nars conducted at the bar
   association's  99th annual
   meeting here.

    The  proposed penalties,
   which include lines of up to
   $25,000 per day for failure to
   comply with state pollution
   control orders, were creat-
   ed by the  DEP to carry out
• the mantera? of t
 vironmental  Enforcem
 Act passed by the state le-
 gislature in 1973.
  A public hearing on the
 proposed  penalties  has
 been  scheduled for  No-
 vember in Hartford.
  The purpose of the  act,
 Atty. William Drayton, Jr.,
 a  DEP  consultant from
 New York said, is to give all
 the environmental statutes
 on the books now a uniform
 procedure for enforcement.

  In the past, Drayton said,
 the department has been
 hampered by the inability
 to distinguish  between
 major and  minor infrac-
 tions of the law there was
 no such uniform procedure.
  The procedure tffl also
help the DEP act more
quickly against violations,
Drayton said. • Violators
who delay in installing polu-
tion-control equipment will
be fined severely, he said,
while violators who act
promptly will face no penal-
ties.
  In the past, he said, the
situation has been such that
at times it made more
sense for a businessman to
delay in the installation  of
equipment than to take ac-
tion right away.
  Because there was no uni*.
form procedure,  Drayton
said, a  violator previously
could put off correction  of
the problem without facing
any severe penalty
MANCHESTER HERALD,


WEDNESDAY,  NOVEMBER 13,  1974
                                              Citizen  Group  Backs
                                              Fines  for Polluters
                     HARTFORD (UPI) - The
                   Connecticut  Citizen Action
                   Group  is backing new fines
                   against polluters by the state
                   Department of Environmental
                   Protection.    j£&^\
                     In testimonyjfjrepar* for
                   delivery before fie DEBfnday,
                   CCAG attorney «Rwlff5ullivan
                   backed regulations to al'ow for
                   better enforcement of existing
                   laws by the DEP.
                     Sullivan  said the  new
                   regulations would permit the
                   DEP to  impose penalties
                    directly,  instead  of  going
                    through the attorney general or
                    local authorities as it must now
                    do.
                     The fines are calculated on
                    the basis of the cost a business
                    would have incurred in  com-
                    plying with the air standards in
                    the first place, Sullivan  said.
                    Thus, the  fine for a polluting
                    factory would be  what the
                    business would have spent if it
                    had  installed antipollution
                    equipment.
                                     Story  carried  in many other  state  papers,

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                                                         76
    HARTFORD  TIMES,  SATURDAY,  NOVEMBER  16,  1974
  State  Industries  Snub
  Hearing   on    Pollution
    By DICK ANtHOMY
      Staff Reporter

 The one group with the most
direct stake in the state's
proposed system of air pollution
fines — Connecticut's industrial
community — was virtually un-
represented  at the  Hartford
hearing on the proposal.
• The only company that sent a
spokesman  to» the  Hearing
this week  was Northeast
titilil'es.
 Meanwhile, environmental
groups,  along with some
professors from colleges and un-
iversities  in  tne state,
dominated the hearing.
 Although  a few  of these
speakers had minor  questions
about the proposals,  most felt
they are generally sound.
 One environmentalist who had
serious reservation about the
proposed  rules was Barbara
Bass. She represented the Air
Conservaiion Committee, part
of  the  Connecticut Lung
Association.
 She said that while the propos-
ed rules focus on getting com-
panies to obey air pollution
laws, they don't deal with the
problem of ensuring that poten-
tial polluters register with the
Department of Environmental
Protection (DEP).
 "There are many  sources
(companies) who are  un-
registered, there  are many
sources which are not in com-
pliance." she asserted.
 Deputy  DEP Commissioner
Eckhard't  C.  Beck responded
that the proposed regulations on
fines aren't meant to cover the
problem of registrations.
  mat would require a ditterent
set of regulations, he told her.
  The spokesmartfor Northeast
Utilities, Atty. Robert Knicker-
bocker, told the hearing panel
the rules don't deal with the fact
that companies may have vary-
ing reasons for not obeying anti-
-pollution laws.
  The rules,  however, are
written  with  the  assumption
that polluters violating the law
simply want to have an economic
advantage over  competing
firms.
  Another  speaker, however,
said the focus  on the issue of
competitive advantages is cor-
rect
  Prof. Ralph S. Brown Jr.  of
Yale  University Law  School
argued that companies who op-
pose " the rules because  of
"sincere differences" with the
DEP about air pollution stan-
dards  should  make their
feelings known before the rules
are adopted.
  If they dwi't. he went on, it's
reasonable to assume they are
chiefly  influenced  by  the
economic advantages" to  be
gained from failure to comply.
  The proposed  rules, called
civil penalises, have  been
designed'so that polluters will
be fined  exactly the  amount
they save by not installing anti-
poliution equipment.

  The rules also provide for
periods of negotiation, and for
appeals,  however Thus firms
would be given ample opportuni-
ty to comply before would have
start paying fines.
   HARTFORD  TIMES,

   SATURDAY,

   NOVEMBER  16,   1974
                New  Britain   Builder   Backs
                Pollution  Penalty  Proposals
                By GERALD J. DEMEUSY
                  A New'Britain construc-
                .tton official said Saturday
                civil penalty  regulations
                propoied by the Department
                'of Environmental Protection
                (DEP)  effectively will
                check the pollution of air by
                a minority of Connecticut In-
                dustry.-  •         v ;
                  Victor F. Tomasjo, vice
                prMMenfof Angelo Tornas-
                ao Inc., cautioned, however,
                that the regulations must be
                ^carefully drafted to avoid
                confuiing  language that
                might  leave loopholes  for
                deliberate polluters.
                  Deputy DEP  Commission-
                er Eckardt C. Beck said the
                regulations will be  sent to
                the  office  of  the  attorney
                general for review after "a
                few minor  technical revi-
                sions' are made."  He said
                the  regulations were en-
                dorsed  by economists, edu-
                cators  and environmental-
                ist! during  a series of public
                hearings last week.
                Called 'Creative'
                  Tomasso said his firm fa-
                vors  the  proposed  regula-
                tions  as "a novel and crea-
                tive"  method of dealing with
                industries which  are drag-
                ging their feet in complying
                with  requirements  of  the
                Clean  Air Act.
                  The regulations, which
                would implement the  Con-
                necticut  Enforcement  Act
                passed, by the 1873 General
                Assembly, empower DEP to
                assess fines against firms
                which ignore compliance or-
                ders.  The amount of the fine
                would not exceed the cost of
                installing pollution abate-
                ment devices.
                  Tomasso predicted  the
                civil  penalty regulations to
                deal with air polluters  will
                establish, a  precedent for
                controlling other environ-
                mental  problems  in  the
                same way. That's why, he
                said,  it's important to make
                the regulations as clear and
                simple as possible.
                  He  said it would be "iron-
                ic" if the language of the
                regulations-aimed at ending
                th« time consuming and ex-
                pensive procedure of hailing
                polluters into court-was  so
                ambiguous and unclear that
                businessmen would have to
                hire a lawyer to Interpret
                the  terms.
                Beck 'Convinced'
                 "Testimony presented  at
                last  week's public hearings
                has  convinced Tne that the
                regulations fulfill the
                legislature's intent in closing
                the iOOphoMWtifonr ctrcm ««•
                laws, and at the same time
                safeguarding  responsible
                firms  from  undue govern-
                ment regulation," said Beck.
                 The regulations provide
                for  appeal  to the courts in
                cases  where those who art
                fined disagree with findings
                of the DEP.
                 Architect of the 1973 legis-
                lative  act, former state
                DEP Commissioner Dan W.
                Lufkin, went on record in fa-
                vor of the  regulations.  He
                said they establish a  system
                of fines "that exactly equals
                the illegal profits which fla-
                grant  polluters make by  not
                complying with the law."

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BRIDGEPORT  TELEGRAM,  WEDNESDAY,  NOVEMBER  13,   1974
 DEP  Plan  to   Stiffen  Air  Rules
   Praised   at   City   Hall   Hearing
  A state Department of Environ-i
 mental Protection proposal aimed
                                  Lufkin Praises Plan
                               The proposed regulations were
 at eliminating the economic «d- also praised by former EnwMjfe. with the state, 3;750 have been in-
 vantages of violating air pollution mental  Protection  <>»•
 control standards drew praise and missioner Dan  W. Lufkin, who
 only minor criticism at a sparsely was in  charge  of the  DEP in
                                                            He said that of the 10,000 poten-
                                                          tial pollution  sources registered
                                                          spected and 1,350 of these were
                                                          found to be in violation. All  but
                                                          287   companies  corrected  their
 attended public hearing  in City, 1973, when the regulations were i problems without a  DEP  order,
 Hall last^ight.                 first conceived. Mr. Lukin, who. he said.
  The proposal, in the form of ad-1 resigned to return to his WaH/j  Half of the  287   cleared cor-
 ministrative  regulations,  would Street    investment    f i r m,,, rected their violations according
 give the DEP the  right  to levy -*~1i	J - -*•*——* fl—"-u -~ —~ 	 "    •    ••  •  •
 fines  of up to $25,000  initially
 plus $1,000 per day for continuing
 violators of air standards.
  The exact  amount of the fines responsible  business  from  ir-
 would   be   equal  to the money responsible   competitors  k and
 saved by the  recalcitrant  com- bring  flagrant  polluters into
 pany by not  installing and main- compliance."
 taining  pollution control  equip-  The one other dissenting note
 ment.                         at the hearing came from Peter
  Under present regulations, vio- Alagna, who heads the Stamford
 lators face money penalties of up Air Pollution Control bureau and
                             delivered a statement through. a,|to DEP timetables, he said,  but
                             spokesman saying the regula-ith<, rest delayed. A total of 21 vio-
                             tions would "go a long way to lators were responsible for three-
                             protect   e n v ironmentallyjfluarters  of  the  delayed com-
                                           ,   ^   ...   ,  pjjance yme   accumulated since
                                                          June of 1972, he said.
                                                            Mr.  Tundermann,  who  along
                                                          with  Deputy Environmental Pro-
                                                          tection Commissioner Eckardt C.
                                                          Beck conducted the hearing, said
                                                          the regulations could go into ef-
                                                          fect by January. They first must
* EH, vi .a AUVVJ **««.« V^ j^w.-ip....— m, — •» — r ---- — --- — --- -- -- — --- - — — — — — — „-_ j^V.1 UV tl ttl&Ual/Y  i. HOY 111 OV UlUSL
to $180,000 a  week or in  some I formerly wbrked in Bridgeport's! be approved by  the legislature's
cases imprisonment. But in order Air Compliance unit.          (Regulation  Review  committee,
to have the  penalties  assessed,   Mr. Alagna  claimed that  the however.
the  department must go to court, proposed   regulations   would
  According to DEP spokesmen, "short circuit" due-process con-
judges were unwilling to enforce trols  by giving the  DEP  the
the harsh standards and violators  right to levy fines without going
were able to avoid complying with  to court. He recommended that
the law.                     :;;the regulations be restricted in
  Muriel  Lightfoot  of  the state  application to areas where air
                                                                          n,.»iin
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                                       78
THE  HARTFORD  COURANT,  WEDNESDAY,  NOVEMBER  13,  1974
 Hearing Today
   Pollution  Fines  Supported
 By GERALD J. DEMEUSY
   Deputy Commissioner
 Eckardt C. Beck of the state
 Department of Environmen-
 tal Protection  (DEP) said
 Tuesday his office has been
 deluged with letters support-
 ing fines for polluters who
 refuse to obey clean  air
 laws.
   The proposed fining regu-
 lations will be aired at a
 public  hearing at  the State
 Capitol today at 10 a.m.
   Beck said he expects  the
 regulations  to encounter
 "some  oppositjon"  at this
 morning's hearing, although
 the written statements sub-
 mitted so far are over-
 whelmingly  in  favor  of
 them.
   The Connecticut  Citizen
 Action Group (CCAG) backs
 the regulations, but at the
 same time called for "more
 vigorous  enforcement"  of
 existing laws by the DEP.
   "They  (the  regulations)
 become important environ-
 mental tools only if strictly
 enforced," said CCAG attor-
  ney Brian Sullivan.
    The proposed regulations
  would implement the Envi-
  ronmental Enforcement Act
  passed  by the 1973 legisla-
  ture. Under its provisions,
  the DEP is authorized to im-
  pose penalties against those
  who balk at complying with
  pollution abatement orders.
    In a letter to Beck, Prof.
  Marvin Chirelstein of Yale
  Law School  noted that the
  DEP penalties in no inst-
  ance will exceed the cost of
  complying with abatement
  orders. He also noted that
    no one would be subject to
    penalty unless he was on no-
    tice he was in  violation. He
    said  the  proposed regula-
    tions  "achieve the  dual
    objectives  of  effectiveness
    and fairness."
     "The department's pro-
    posals seem  to combine
    maximum enforcement flex-
    ibility with limited adminis-
    trative discretion,"  said
    Asst. Prof. Richard B. Stew-
    art of  Harvard Law School.
     "I believe it  is a sensible
   •and economically sound reg-
    ulatory approach," com-
    mented William J. Baumol,
    professor  of economics at
    Princeton  and  New York
    universities.
NEW HAVEN  JOURNAL  COURIER,  THURSDAY,  NOVEMBER 14,   1974
Making   Polluters  Pay   Supported
      Staff Reporter
  HARTFORD - The state's
first proposed system of fines
for polluters got a generally
favorable response as a hearing
on it began here Wednesday.
  The system is embodied in a
set of rules prepared by the De-
partment of Environmental
Protection (DEP)^

  The rules are intended to help
the state control industrial air
pollution.

  The lone speaker with serious
questions about the proposed
rules was the attorney repre-
senting Northeast Utilities.
  The   attorney,   Robert
Knickerbocker,  asserted that
the rules focus too heavily on
the economic benefits polluters
reap by not installing anti-pollu-
tion equipment.
  One problem with spotlight-
ing the competitive advantage I
polluter, may have, he went on,
is that the rule* may not apply
to a company like the one he
was representing. "My client
doesn't operate in a competitive
framework."
  He also said the law on which
the rules  are based puts its
emphasis on the social and
health impacts of pollution.
  The proposed rules won
praise from most other speak-
•s. Professor* (ran the Yale
University and University of
Connecticut law schools, and
from Trinity College were
among those supporting the
regulations.
  Also supporting  the DEP
proposals were representatives
from- the Connecticut Forest
and Park Association and the
Farmington River Water Shed
Association.

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                                     79
WATERBURY  AMERICAN,  THURSDAY,  NOVEMBER  14,  1974
  Stiff Air   Pollution
  Fine   Plan   Favored
   The Department of Environ-
 mental Protection held a public
 hearing in Waterbury  Wednes-
 day night on proposed regula-
 tions  for  air  polluters  that
 would make it as expensive to
 violate the law as it would be to
 install anti-pollution equipment.
   Proposed  DEP^*Jplations
 would allow th^agency to as-
 sess civil penalties on compa-
 nies that avoid compliance with
 state pollution standards.
   The proposals were favored
 by four people and opposed by
 one at a public hearing in Ald-
 ermanic Chambers.
   Two additional speakers,
 making a total of s^ven, did not
 register  for or Against  but
 merely asked questions about
 the proposal.
   The hearing, conducted by '
 David Tundermann,  assistant
 commissioner and DEP consult-
 ant, William Drayton, was at-
 tended by only one Waterbury
 firm, Sherwood Medical Indus-
 tries.
   Uniroyal representatives were
 present, but did not speak.
   The penalty charged each pol-
  luter would be the amount the
  firm would get if it invested the
  money  needed to meet  the
  standards.
   DEP considers present penal-
 ities ineffective because  they
 are so harsh they are unusable.
 DEP  said  state  and federal
 fines now total $180,000 a week
 and court orders to halt pollu-
 tion simply  would force a com-
 pany out of business, something
 the DEP and the courts have
 been unwilling to do.
   The new regulations, author-
 ized by the 1973 General Assem-
 bly, are designed to eliminate
 economic incentive to violate
 and to protect those who have
  complied from unfair economic
  advantage.
   The only opponent at Wednes-
  day njgbt's hearing was Atty.
  Robert H. Hall of Newtown, a
  lawyer who represents alleged
violators but who said he was
speaking only for himself.
  Hall contended the proposed
regulations enable DEP to im-
pose penalises on a mere claim
of violation without resorting to
a court to determine the validi-
ty of the claim.
  Hall also contended that if the
violation is mild or intermittent
and the  cost of abating it is
"astronomical," .a  penalty
based on the cost of the equip-
ment would not be in proportion
to the violation.
  Michael Michalak  of  Sher-
wood Medical Industries had no
comment for or against the reg-
ulations, but said his company
is having trouble meeting the
standards. He  said Sherwood
has contacted 11 different anti-
pbllution equipment firms and
has spent $17,000 on a system
"that wasn't worth a penny."
  Michalak wanted to know how
much flexibility the new regula-
tions have for dealing with a
situation similiar to Sherwood's,
adding that DEP inspectors he
has dealt with so far have been
inflexible. He said they have
demanded compliance without
concern for the nature of Sher-
wood's  operation  or  for the
problems the company has en-
countered in trying to achieve
compliance.
  Tundermann said as long as a
company is making "a reasona-
ble effort" to comply, it is im-
mune from penalty.
  Wilfred Swan of Beacon Falls
also had no comment for or
against the  proposed regula-
tions,  but   wanted  to  know
whether they provide for publi-
cation of the identity of viola-
tors. He was referred to a DEP
publication  which he was told
would be sent to him  if he
called DEP offices in Hartford.
  Two of the four people in fa-
vor addressed the hearing by.
proxy.  Tundermann  read  a
statement from former DEP
commissioner, Dan W. Lufkin
and James  Vickery read  a
statement from  Prof. William
Baumol of Princeton Universi-
ty.
  After reviewing the provisions
of the  regulations,  Lufkin's
statement concluded, "I  think
these regulations go a long way
to protect environmentally re-
sponsible business from irre-
sponsible competitors and, at
the same time,  bring flagrant
polluters into  compliance.  I
urge the adoption of these regu-
lations."
  Prof. B a u m o 1's statement
said, in part, the proposed regu-
lations provide "an effective in-
centive while minimizing agen-
cy discretion., .(they) make com-
pliance attractive and remove
the competitive  advantage. . .
This is the first program of its
kind.  I urge its adoption and
am looking for ward to its im-
plementation."
  Also speaking in favor were
William F. MorriD, executive
director of the B^rkshire-Litch-
field   Environmental Council,
and Dennis Arnold of the Yale
Legislative Services.
  The hearings will resume to-
night at 7:30 in Norwich.
  A hearing on the proposed
regulations in Bridgeport Tues-
day night was attended by six
persons. Lufkin's statement
there said the regulations would
eliminate a situation in  which
"flagrant violators were able  to
drag their feet and the depart-
ment through the courts know-
ing that in the end they would
receive token penalties."
  Muriel Lightfoot of Westport,
representing  the  League  of
Women Voters, testified that
the time had come for private
companies to realize that "pol-
lution control should be consid-
ered a cost of doing business."
  The Connecticut Citizen Ac-
tion  Group called the regula-
tions in a release  a "new step
for environmental protection in
Connecticut."

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                                           80
       THE  HARTFORD COURANT, WEDNESDAY, JULY  30,  1975
              Hearings Set on Fines
              For Wetlands Violators
                Public  hearings will be
              held in September on pro-
              posed regulations to let the
              state Department of Envi-
              ronmental  Protection
              (DEP) fine  persons who
              tamper with coastal wet-
              lands without first getting a
              permit.
                Authority to impose fines
              would be  conferred on DEP
              Commissioner  Joseph N.
              Gill, although violators
              would have the right of court
              appeal.
                Two years ago, the legisla-
              ture enacted the so-called
              civil penalties act which ena-
              bles the DEP to adopt regu-
              lations to deal  swiftly with
              polluters. The proposed reg-
              ulations would broaden this
              authority to  levy fines
         against wetlands law viola-
         tors.
          Gill said he fears contin-
         ued encroachment of wet-
         lands. Those who fill in low-
         lying areas cause "irreversi-
         ble" damage to the ecosys-
         tem, he said. He estimated
         that as many as 14 illegal
         fills are made each year.,
          The hearings will be Sept.
         9 at 7 p.m. at New London
         City Hall; Sept. 10 at 7 p.m.
         at the New Haven  Hall of
         Records, and Sept.  11 at 7
         p.m.  at  Cloonan  Middle
         School in Stamford.
NEW LONDON DAY,


WEDNESDAY,


SEPTEMBER  10,  1975
                              Filling  penalties  plan
                                  draws  no  criticism
 NEW LONDON — No ob-
jections were voiced at a
public hearing in City Hall
Tuesday night on proposed
new state regulations pro-
viding  for  heavy fines
against institutions that fill
in  coastal areas  without
permits.
 The hearing was conduct-
ed by the state Department
of  Environmental  Protec-
tion (DEPJjjirhich will en-
force the/few regulations.
 The omy substantial testi-
mony came from  Merritt
Cosgrove, a New London at-
torney  and a former DEP
employe who helped draw
up  the regulations.  Cos-
grove praised the propos-
al.
 The  new  regulations
would  add teeth to a 12-
year-old State law that
hibits the filling of any area
seaward of mean high tide
without a state permit.
 The procedures now in ef-
fect require the DEP to
take all accused violators to
court before a fine is le-
vied.
 DEP spokesmen  argue
that court delays of up to
two and a half years are
cumbersome  and encour-
age potential violators to
think they can get away
with unpermitted filling.
 The  new  regulations
allow the DEP to levy a fine
when it determines an ille-
gal fill has taken place. The
institution would then have
to take the case to court in
order to appeal the fine.
 The fines would range up
to $885 for not seeking a per-
mi» Kttfnro fillfno and UD to
$1,000 a day for refusing to
remove illegal fill.
  The  fines would  apply
only to institutions and not
to individuals. DEP figures
show nearly 90 per cent of
all the illegal filling has tra-
ditionally been done by in-
stitutions.

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