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                 TABLE 3.2. EXAMPLES OF ENVIRONMENTAL REQUIREMENTS
 Ambient Standards                                        ' '     ",  "*"'''  '
                                                            '      i  nvi<*      i

         Ambient standards (also called media quality standards) are goals for the quality of the ambient
 environment (c.g^ air, water). Ambient standards are usually written in units of concentration (e.g., the level
 of nitrogen dioxide in the air cannot exceed 0.053 parts per million), fo' the"OiSVanibient standards are used
 as environmental quality goals and to plan the level of emissions from individual sources that can be
 accommodated while still meeting the areawide goal. Ambient standards may also be as triggers, e.g., when
 the standard is exceeded, monitoring or enforcement efforts are increased. Enforcement of ambient
 standards usually requires relating an ambient measurement to emissions or activities at a specific facility.
 This can be difficult.

 Performance Standards (Emissions and Effluents)                      '.,.''
                                                                   > f   ^                            ~~
         These standards are widely used for regulations, permits, and monitoring requirements.  Performance
 standards limit the  amount or rate of particular chemicals or discharges  that a facility can release into the
 environment in a given period of time. Performance standards provide flexibility because they allow sources
 to choose which technologies they will use,to meet the standards. Often such standards are based on the
 output that can be  achieved using the best available  control technology.  Some requirements introduce
 additional  flexibility by allowing a source with multiple emissions to vary its emissions from each stack as long
 as the total sum of the emissions  does not exceed the permitted total. Compliance with, emission standards is
 measured by sampling and monitoring. Depending on the kind of instruments requared, compliance can be „_,__ .
 difficult  and/or expensive to monitor.                '   '                 /"    .'         -            ^
         '  " •               '•"             ,,.,..                •  ,       '            "        ,  ,' ..
 Technology Standards
                       ^         '   s<- "•    '',••••.•     ...,,•     * , ^             ^ ^^•j
t        These standards require the regulated community to use a particular type of technology (e.g., the
 "best available technology") to control and/or monitor emissions. TechnolSg^sflfidards are particularly
 appropriate when the equipment  is known to perform well under the range of conditions generally
 experienced by sources in the community, li is relatively easy for inspectors to determine whether sources are
 hi compliance with  technology standards:  the approved equipment must be in place and operating property.
 It may be difficult, however, to ensure that the equipment is operating properly over a long period of time.
 Technology standards can inhibit  technological innovation and pollution prevention.
         ..   :            s^  _,,,,      ,  .         '                    ,
 Practice Standards                    .                             ',
                          , ~W' '             ,                     J  ,'              z
         These standards require or prohibit certain work activities "ttiat fiiavefsignBcant environmental
 impacts. For example, a. standard might prohibit carrying hazardous liquids in uncovered bucketsT Ufce
 technology standards, it is easy for program officials  to inspect for compliance and take  action against
 noncomptying sources, but difficult to easure ongoing compliance,               ,  ,

 Information Requirements.      ••                                   ^          ,            ', ,

         These requirements aie different from the standards described above in that they require a source of
 potential pollution (e^ a pesticide manufacturer or facilities involved in generating, transporting, storing,
 treating, and disposing of hazardous waste) to develop and submit information to the government. Sources
 generating  pollution may be required to monitor, report on, and maintain records off the level of pollution
 generated and whether or not it exceeds performance standards. Information requirements are often used
 when the potential pollution source is a product such as a new chemical  or pesticide, rather than a waste. For
 example, a manufacturer may be required to test and report on a product's potential to cause harm if released
 into the  environment.

 Product  or Use Bans                                                           "'

         A ban may prohibit a product outright (e,g.» ban the manufacture, Sale, and/or use of a product) Or
 may prohibit particular uses of* product,                                 "      j

                                                  3-4

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Raising problems after critical decisions have been made may be disruptive and may waste
resources and cause significant delays.  Involvement of both legal and technical staff is
important to create enforceable requirements.
ENFORCEABILITY OF DIFFERENT APPROACHES TO ENVIRONMENTAL
MANAGEMENT
       Most of the approaches to environmental management described in Table 3-1 are based
on some form of requirements that will likely require enforcement.1 For example, some
market-based approaches depend on enforcement to define the property being traded and to
provide an incentive to use the market.  A tradeable permit system needs some enforcement of
the underlying requirements, otherwise there may be little incentive to comply with the
requirements or to trade rights.  With this system,  inspectors will have to review records of
permit transactions and adjustments to judge compliance;.  The system of labelling to enhance
consumer  choice may require enforcement to avoid inaccurate or misleading labels.

       All regulatory approaches to environmental management will benefit if the underlying
requirements are enforceable — that is, clear and practical.  This chapter provides suggestions
for making environmental requirements  enforceable.
LAWS;  THE FRAMEWORK FOR ENFORCEMENT

       Authorities

       Environmental laws will be most effective if they  provide the authorities necessary for
their own enforcement. Without sufficient authority, an enforcement program can be severely
    1Liability systems do not have explicit requirements.  However, implicit requirements often
develop as cases are brought to court and patterns are established about what activities justify which
consequences.  To be effective, liability systems generally need some enforcement by the
government, nongovernment organizations, or individuals to gather evidence and develop legal
cases.
                                          3-5

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 handicapped in its ability to create compliance.  The credibility of an enforcement program will
 be eroded if violators can successfully challenge the authority of a program to take certain
 enforcement actions. Authorities that can be extremely important to an effective program
 include (see also Table 7-1 in Chapter 7):
               Authority to issue regulations, permits, licenses, and/or guidance to implement
               the law (see Table 3-3).
               Authority to waive or tailor requirements to facility-specific circumstances.
               Authority to inspect regulated facilities and gain access to their records and
               equipment to determine if they are in compliance.
               Authority to require that the regulated community monitor its own compliance,
               keep records of its compliance activities and status, report this information
               periodically to the enforcement program, and make the information available for
               inspection.
               Authority to take legal action against noncomplying facilities, for example:
                     Authority to impose a range of monetary penalties and other sanctions on
                     facilities that violate the law.
                     Authority to impose criminal sanctions on facilities or individuals who
                     violate the law (e.g., facilities that deliberately falsify data).
              Authority to correct situations that pose an imminent and substantial threat to
              public health and/or the environment.
       Institutional Framework

       Laws generally establish the institutional framework for their own enforcement by
describing who will be responsible for implementing them. Without such a framework, it may
be difficult to establish who is responsible for ensuring compliance has been achieved. For
example laws can specify the roles and responsibilities of the various levels of government and
the various government  agencies or ministries (see Chapter 8). Lawmakers may also want to
give citizens and nongovernment organizations representing citizens the right to bring a lawsuit
for the purpose of enforcing the law.  For example, environmental laws can allow citizens to sue
                                           3-6

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           TABLE 3-3.  EXAMPLES OF VEHICLES FOR IMHJIMENTING
                        ENVIRONMENTAL REQUIREMENTS
n
ii
n
n
Laws provide the vision, scope, and authority for environmental profectioa and
restoration,  In some countries, laws also encompass the Jypes of general
requirements described by other countries in reflations (see% below).

Regulations establish (in greater detail thatt Can be specfied by law) general
requirements that must be met by the regulated community, e.g., now narmfof
substances should be tested, registered, handled, monitored, emitted,  discharged,
and/or disposed of. These requirements generally apply at a national, state, or
regional level (depending on the scope specified in the law).  Some regulations are
directly enforced.  Others provide the criteria and'proeedures ^developing ""-
facility-specific  requirements via permits and licenses that provide the basis for
enforcement. Some countries do not include the step of,developing regulations but
rely solely on facility-specific permits or licenses to implement their laws.

Permits usually control activities related to construction or operation of facilities
that generate pollutants.  The requirements fa permits are often based on specific
criteria established in laws, regulations, and/or guidance.   \
                                - --  ,v,     ,,,        ^  ""?, ^         >      - -  -
        General permits specify exactly what a class of facilities  (e,g? gasoline
        stations) is required to do. General  permits and licenses are vsed when it," I
        is impractical and/or unnecessary to issue £ specific permit for each facility
        (e.g., when there are numerous small facilities that have very, similar
        operations).                                  ,        ""     -     ' -

        FacUUy'Specific permits specify exactly what a particular facility is required
        to do.  Permits often take into account the,particular conditions at the
        specific facility.                        '",','       "

Licenses are similar to permits.  Licenses are permits to manufacture, testi  sell,
and/or distribute a product, such as a pesticide, that may pose an environmental or
public health risk if improperly used.  Licenses may be general or  facility-specific.

Guidance and Policies.  Often government rejgulators must interpret requirements,
even those that have been carefully drafted,  because  not all applications can be
anticipated. Written guidance and policies for interpreting and implementing
requirements help ensure consistency and fairness as the requirements are applied
in practice.  Guidance and policies are also useful in situations where regulation is
achieved solely by facility-specific permits or licenses (either because  the regulatory
system  does not include more general requirements or because it is impractical to
issue general requirements, e.g., due to wide variability in the regulated
community). In this case, guidance and policies for creating requirements  will help
ensure consistency and fairness.
                                        3-7

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 polluters for failing to comply with the law, and/or the government agency for failing to fulfil its
 duties under the law.  Such provisions have been an important means of enlisting citizen
 participation in the United States  (see Chapter 8 for more information on citizen participation).
       Related Laws Compelling Professional and Equitable Conduct

       The credibility of government institutions is very important to establish a sound basis for
voluntary compliance. Therefore, related requirements to prevent bribery, to prevent
falsification of environmental data, and to ensure fair application of the law can be very
important.  Many countries make government officials criminally liable if they accept a bribe.
Other countries protect the rights of facilities by ensuring that government inspections are based
on some rational scheme or on a complaint or other piece of information that specifically
suggests  a violation has occurred.
       Compatibility with Existing Laws

       To be effective and respected, laws must be rational and not send conflicting signals. A
new environmental law should be consistent with any existing environmental laws (unless it is
intended to supersede these laws) and should reinforce and complement laws and policies in
other sectors, such as:

       •      Health:  food safety, occupational health and safety, consumer products, pesticide
              use, etc.
       •      Natural  resource management: water, energy, minerals, forests, etc.
       •      Land use planning:  transportation, development, siting, etc.
       •      Industry and commerce.
       "      Agriculture.
                                           3-8

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       Structure and Criteria for Establishing Environmental Requirements

       Some environmental laws contain requirements.  Others specify a structure and criteria
for establishing requirements;  requirements are then developed separately.  Requirements may
be "general" (i.e., they apply to a group of facilities) or facility-specific.

       •      General requirements are most frequently implemented in the form of (1) laws,
              (2) regulations, or (3) general permits or licenses that apply  to a specific class of
              facilities (e.g., dry cleaners) (see Table 3-3)2.  General requirements may apply
              directly to a group of facilities or they may serve as a basis for developing
              facility-specific  requirements.
       •      Facility-specific  requirements are usually implemented in the form of permits or
              licenses.

       It can be simpler, in some respects, to enforce general requirements because inspectors
do not have to determine what the applicable requirements are for each facility.  However, in
terms of gaining widespread compliance, a disadvantage of general requirements is that the
burden of compliance often falls more heavily on some members of the regulated community
than on others.  Also, general  requirements may need interpretation as to how they apply to
particular facilities. Inequitable or unclear general requirements can lead to compliance
problems.  Facility-specific requirements  may comprise a goal that sources are either more
willing or better able to meet.

       Different countries use different approaches to developing requirements.  Figure 3-2
shows some possible approaches. Table 3-4 shows an example of the relationship between a
law,  regulation, and permit in  the United States. This example illustrates how in the United
States requirements become more detailed and specific as they are transformed from a law to a
regulation to a permit.
    2The terms law, regulation, permit, and license have different meanings in different countries.
For example, some Countries use the term "license" instead of "permits." For clarity and
consistency, this text will adhere to the definitions provided in Table 3-3.

                                            3-9

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3-10

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         TABLE 3-4.  EXAMPLE OF THE RELATIONSHIP BETWEEN AN
 ENVIRONMENTAL LAW, REGULATION, AND PERMIT IN THE UNITED STATES

   -   ' In the United States, federal environmental laws outline requirements that are then
further defined m federal regulations,  Finally, federal regulations «r» implemented ty the
states trough permits that specifically interpret and explain the requirements established
in the laws and regulations. This example shows requirements developed under the 12,8.
Federal Water Pollution Control Act.
LAW;
One part of this  law states that *the  Administrator  [of the
Environmental Protection AgeneyJ shall require  the  owner or
operator of any  point soaree to  , * < sample „ /'. effluents (in
accordance with  such methods .  r . as the Administrator shall
prescribe)/'
REGULATION:
A corresponding part of the regulations states:  permits issued fey
the states  must specify  "required monitoring including type,
intervals,  and  frequency  sufficient to yield data  which are
representative   of  the monitored  activity  including,   when
appropriate, continuous monitoring „,."
PERMIT;
A corresponding part of apermit in the Commonwealth of Virginia
states? "Within three months of the effective .date of this permit,
;, and continuing quarterly for a period of one year the permittee
shall collect 24-hour composite samples-of the effluent from (the
specified] outfall,, except la. the cases of volatile organics, phenols
and cyanide analyses where graft samples are required.1*
                                    3-11

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 REQUIREMENTS: MAKING THEM ENFORCEABLE

        Many approaches, described below, are currently being used in different countries to
 help ensure that requirements will be enforceable.
        Balancing Stringency and Feasibility

        The ease and cost of compliance can greatly affect the degree of compliance. For
 example, facility managers may want to comply, but will not be able to if the requirements are
 too expensive or the necessary technologies are not available. Policymakers will need to balance
 the desire to create stringent and ambitious requirements with the burden the requirements will
 create for industry.

        In theory, more stringent requirements  mean larger and possibly quicker environmental
 protection and restoration. Too stringent requirements imposed too early in the life of a
 program can generate disrespect for the requirements among engineers and plant managers who
 must make compliance decisions.  Similarly, government officials may be reluctant to enforce
 such requirements.  Strict requirements are more likely to be challenged and delayed in court.
 Such delays undermine the credibility of an enforcement program. Thus, ambitious and
 impractical requirements  can seriously hamper  enforcement.

       In response to these considerations, requirements may be creatively tailored in their
 stringency, i.e., different requirements are specified for individual facilities or different segments
 of the regulated  community based on such factors as size, pollution volume, and environmental
 or public health risk posed by the pollution. Requirements may also be implemented in a
 phased approach. The first phase involves less stringent  requirements that will not be too great
 a burden for the regulated community to meet.  At a minimum, this phase will help eliminate
 the competitive advantage for polluters.  Some time later a second phase involving more
stringent requirements can be implemented. Additional phases can be implemented later if
desired.
                                          3-12

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       Improving the Climate for Compliance


       Two practices that have helped win the respect and approval of the regulated community

and/or individual facilities subject to the requirements are:
              Demonstrating Value.  Environmental officials use recognized scientific methods
              to demonstrate that a requirement will produce measurable environmental
              improvements.

              Demonstrating Options and Feasibility.  Environmental officials provide technical
              information on the different technologies or other alternative approaches that
              can be used for compliance. Officials may also supply information to
              demonstrate the economic feasibility of using these technologies. This helps
              convince the regulated community that the requirements are reasonable. It also
              invites companies that supply these technologies to make sure the technologies
              are available to facilities that are subject to the requirement.
These scientific activities help build a willingness to comply within the regulated community.  In

some cases, however, no appropriate technologies exist and the requirements force the ,

development of suitable technologies. In such cases, compliance often takes longer to achieve.
       General Requirements


       General requirements (i.e., regulations and general permits and licenses) will be most

effective if they closely reflect the practical realities of compliance and enforcement, for
example, if they:


       •      Are clear and understandable.

       •      Precisely define which sources or activities are subject to requirements.
                                           3-13

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              Precisely define the requirements and any exceptions or variances3 in these
              requirements.

              Clearly address how compliance is to be determined by specifying test methods
              and procedures.

              Clearly state deadlines for compliance.

              Are flexible enough to be constructively adapted through individual permits,
              licenses, or variances to different regulatory circumstances.

              Are written clearly enough to be the basis of criminal prosecution (which is
              usually regarded as the most serious enforcement action).

              Are based on technology (e.g., control or monitoring equipment) and
              methodologies that are or soon will be available, reliable, and affordable.
       Table 3-5 provides examples of basic questions that can be asked when general
requirements are being drafted in law, regulations, and general permits or licenses to help make
sure they will be enforceable.4
       Size of the Regulated Community


       The size of the regulated community can influence a program's ability to successfully

enforce general  requirements. The larger the regulated community, the greater the effort
generally required for successful enforcement. Too large a regulated community can make it
impossible to implement and enforce requirements. For example, a province in the Netherlands
passed a law requiring companies that wanted to use a processing installation to dispose of their

wastes to apply for an exemption.  After the law passed, the government discovered that 100,000
   Environmental laws may contain provisions that allow a regulated source to petition the
government for an exemption from a general requirement.  This exemption is called a variance and
contains specific terms and conditions similar to a permit. Facilities may request variances for many
different reasons.  For example, their operating conditions are different from those that were
assumed when the standard was set, or peculiar physical circumstances (such as naturally
contaminated intake water) make it impossible to comply.

   4Not all the questions on Table 3-5 will be relevant to every situation.  The table provides a tool
to help clarify options and choices when drafting requirements.

                                           3-14

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      TABLE 3-5.  SAMPLE CHECKLIST f OR pEmQPKNG ENFORCEABLE
         REGULATIONS, GENERAL PERMITS, AND GENERAL LICENSES
              Does the regulation, general perm*** or gutteral license clearly define the
              regulated community, the regulated activities, and/or the regulated substances?

              Are any exceptions to defined terras narrow enough "to avoid having the
              exceptions "swallow" the dej3nMons?

              Are the definitions and exceptions precise enough so that enforcement
              personnel can identify instances of noncompliance?

              Are defined terras used consistently throughout the test of the regulation,
              -general pe*mi^ or general license,

              Is the legal authority uaderJyiBg t&e relation, general permit, or general
              license clearly articulated?

              Are exceptions to the regulation, general permit, or general license defined
              precisely enough, to make it dear which groups are exempted? If sources under
              a certain size are exempted, does the regulation identify how the size of a  '
              particular source te to be
REQUIREMENTS, 
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      TABLE 3-5.  SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE
   REGULATIONS, GENERAL PERMITS, AND GENERAL LICENSES (continued)
MONITORING AND INSPECTION
              Does the regulation clearly state exactly what the regulated community is
              required to monitor?  Do these requirements support the compliance goals of
              the environmental Jaw? For example, if th& compliance goal & to demonstrate
              that facilities are in compliance each day, does the regulation, general permit,
              or general license require daily sett-monitoring and recordfceeping?

              What test methods are needed to determine whether & facility is in compliance?
              Are the methods dearly described? Are any allowable  averaging times clearly
              specified?                                  , ;

              Does regulation, genera! permit^ or general license make any attempt to falsify
              self-monitoring data as a separate enforceable violation?
                   the regulation, general permit, or general license authorize inspection
              procedures that will be enable inspectors to gather data needed to determine
              compliance? Do these procedures cover entering a regulated facility, inspecting
              documents, and collecting samples?

              Will Inspectors be readily able to determine which facilities are not in
              compliance?
                      requirements for inspection and self-monitoring help reduce
              enforcement costs and Increase the effectiveness; of inspections?
SELF-MONITORMG/RECORbKEEnNG/REPOR'IlNG

       *      Does the regulation, genera! permit, or general license provide a clear schedule
              for self-monitoring?

       *      Does the regulation, general permit, or general license state tbe methods to be
              used for self-monitoring?

       *      Does the regulation, general permit, or general license clearly state what data
              the regelated community is required to record and report?

       •      Will these data show whether or not a facility1 is in eompHancet Will these data
              provide sufficient evidence to document a violation?

       »      Does the regulation, general permit, or general license provide a dear schedule
              and format for recordfceeping and reporting?
                                         3-16
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     TABLE 3-5. SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE
  REGULATIONS, GENERAL PERMITS, ANJ> GENERAL LICENSES (continued)
              Are the reporting requirements frequent enough to allow timely response to a
              violation,?, Is the regulated community required to retaiti Momation. long
              enough for enforcement purposes?

              Does the regulation, general permit, or genera! license make failure to maintain
              or report records a separate enforceable violation?

              Is the regulated community required to make records available to inspectors
              upon request?                 '                             -  ^

              Are any exceptions to the recordkeeping and reporting requirements clearly
              .speJledout?

             , Will the requfrejaents for reports, 'iseeords,, and inspection/monitoring  techniques
              help reduce enforcement costs and Increase the effectiveness of inspections?
DEMONSTRATING COMWJANCE

       •      Does the regulation, general permit,, or general license clearly describe what
              constitutes compliance and how compliance is determined? Is compliance
              determine by field inspections* desk reviews ol feports submitted by the
              regulated community, or is the regulation, general permit,, or general license
              Does the regulation, general permit* or general license clearly state who (le,,
              the government or the facility) is responsible for proving compliance or
              noacompliance? Can the enforcement program independently determine
              compliance? Can the program require the facility to perform certain tests and
              determine compliance?

             ' Does the regulation, general permit, or general license define time limits by
              which a member of the regulated community must reach compliance? Do the
              time periods have specified beginning and end points? K compliance is defined
              by occurrence of an event, rather ihaa by a date. Is the event discrete enough
              for an inspector to determine Aether the facility is to compliance?

              fe the evidence requited to prove A violation dearly described?  Can third party
              data be used as evidence? Does the regulation, genera! permit* or genera)
              license describe the extent to which am inspector 
-------
 companies producing wastes would need an exemption. Inspections alone would have required
 hiring an additional 200 to 300 inspectors. The provincial government decided to revise the
 regulation.  Exemptions are no longer required.  Companies must keep a record of their waste
 deliveries and periodically report information on the most hazardous wastes.  Enforcement
 efforts now focus on the waste processors (about 1,000) rather than the waste producers.
                                                         I
       Some pollution events involve a chain of facilities and/or individuals (e.g., manufacturers,
 distributors, users). In such cases, regulating the smallest "link" in the chain (e.g., manufacturers
 rather than users) can achieve the  desired environmental results with much less effort.
       Analyzing the Regulated Community's Ability To Comply

       General requirements that are very specific, with little flexibility for modification when
                                                          l
they are implemented at specific facilities, are easier to enforce but may not allow the economic
flexibility that will encourage compliance. Policymakers will need to balance the advantage of
specificity with the need for flexibility.

       Both econpmic and technological factors determine how great a burden new
requirements will pose to the regulated community. Some environmental programs (such as
those in the United States) often commission an independent study to examine the economic
and technological impact that proposed general requirements will have on the regulated
community.  Factors studied often include:

       Economic Considerations:

       •     Which types of facilities are subject to the requirements?
                                                          l
       •     What equipment will be required to comply and how much will it cost to obtain,
             operate, and maintain?
       •     What changes in work practices will be necessary for compliance? How much
             will these changes cost?
                                          3-18
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             If the regulated community is required to monitor its own compliance activities,
             how much will this monitoring cost?
             Are there any short- or long-term economic benefits to the regulated community
             from compliance (e.g., income from recycled materials, development of more
             cost-efficient processes)?
             Is the regulatory scheme cost-effective compared to other approaches that could
             improve this segment of the environment?
       Technological Considerations:

       •      What technologies may be used to comply?
       •      How reliable are these technologies?
       •      How available are these technologies?
       •      How easy is it to accurately operate these technologies?


       Involving the Regulated Community and Other Interested Parties

       Involving the regulated community in developing general requirements helps create
support and reduce resistance and conflict.  It can also make general requirements more
practical and therefore more enforceable, and it publicizes the requirements at an early stage,
which sets the stage for compliance. There are three basic ways to involve the regulated
community:  formal comment,  informal negotiations, and field testing (see Table 3-6). Specific
procedures and schedules for each approach are helpful to avoid the possibility that involvement
of the regulated community could be used to delay implementation or unduly influence the
results.  Involving the nonregulated community (e.g., the general public and nongovernment
organizations) can also be very helpful (e.g., to build public support — the importance of which
is discussed  in Chapter 5 — and to solicit creative ideas from knowledgeable groups).
                                           3-19
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                TABLED. WAYS TO INVOLYE THE SEGptATJp
                         M DEVELOPING GENERAL
 Informal Consultations
Formal Comment
Field Testing
                V J JJ J      <,   ff       5f A     >  "                      f
 Policymakers can consult with key represeaiativ«» Of tie regulated community
 and nongovernment  organizatbns  iaformaily before  developing  general
 requirements.  These consuitatioins'catt be fcelpM in sorting out future
 problems early, and m eliminataig resastantie.                          |\

 U.S. legal systems require the federal go^Snraoefflf to publisft draft regulations
 and solicit comments front the regulated community and the public.  Widely
 distributed, low-cost government periodicals preside advance notice that new
 regulations are being developed and^anoottnce whet* they will be available*.
 Any organization or individual can easily obtain and review the proposed
 regulations when they are issued,             '^"T'"""                \
          ,- -\  '  '   -    " ""' ''*"',''    I ' -:. -.-                  , I ?
 Written comments from the public are usualfy accepted for a limited period
 of time (30 to 9Q days in the United States) after the proposed regulation has
 been issued.   The environmental agency prepares  and publishes detailed
 responses to the comments.   Many of the comments directly concern the
 difficulty or unanticipated effects of compliance. These comments provide
 regulators With  an opportunity to rethink (heir approach.  The formal
 responses to comments reassure cp«t^torsj that their  comments
 considered.                          ,, ,  •' !>

la field testing^ specific members of the regulatedi community volunteer to tesiT
general requirements to determine, for .example,, whether the requirements
are clear and understandable, and/orjthe ease and cost of compliance!
Policymakers can then make changes to the general requirements before they
are finally implemented. Though field testing can lengthen the total time it
takes to develop a general requirement, it can expose weaknesses that might
otherwise render it unenforceable.  .As of ,19^ field testing is being pilot-
tested for use in the United States.           <,  „                   '
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       Involving Enforcement Officials

       The government personnel involved in drafting general requirements may not be
involved in enforcement activities.  Thus, the experience, wisdom, and concerns of both legal
and technical staff involved in enforcement are not automatically available to the regulators.

       Generally, special institutional channels and procedures are beneficial to ensure that
enforcement staff will provide input as general requirements are being drafted. For example, a
system could be set up so that enforcement program officials can track the status of projects to
develop requirements.  Special requirement development committees can be created that
include both policymakers and enforcement officials.  The committee can include
representatives of all government levels (national, regional, provincial, local) that may be
involved in enforcing the requirements. The committee members could be responsible for
ensuring that the appropriate individuals within the enforcement program  were involved in
drafting and reviewing the requirements.

       Comments on the proposed requirements and formal written responses to them are most
useful if they are provided in writing to ensure that they are clearly understood and to establish
a written record of the decisionmaking process.

       Those  responsible for developing general  requirements can commission special studies to
specifically analyze whether there might be problems enforcing the proposed requirements.
Such  a study should be kept confidential since it could reveal weaknesses in enforceability which
could undermine enforcement efforts if publicized.

       Lessons learned about what makes existing requirements enforceable or unenforceable in
a particular region or country can be recorded, studied, and communicated to  those involved in
developing new requirements. For example, selected general requirements could be reviewed
one year after they became effective to analyze their enforceability and to make any adjustments
to increase enforceability.  Mechanisms could be created to "fix" existing general requirements if
they are found to be difficult to enforce.  It is also useful to establish an expedited process that
                                           3-21
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 can be used to correct specific types of deficiencies by making limited revisions to general
 requirements.
        Coordinating with Other Environmental Requirements and Programs

        Environmental requirements under one law can interfere with successful compliance
 under another law.  For example,  in the United States, regulations required electronics firms to
 stop chemical solvents in tanks from leaking into the ground water.  Some firms complied by
 releasing solvents into the air, which created an air quality problem.  In the Netherlands, flue
 gas scrubbing to reduce harmful air emissions can lead to discharges of contaminated water;
 treatment of contaminated wastewater can lead to yet another waste product requiring
 responsible processing.

        Several rulemaking practices can be used to avoid such unintended effects.  First,
 environmental laws can require policymakers drafting general requirements to specifically
 consider whether such effects are possible.  Second, individuals who are knowledgeable about
 the different environmental  areas can review the requirements.  Third, the regulated community
 can be studied to see whether compliance could potentially shift the pollution from one
 environmental medium to another. If cross-media effects are discovered, the requirements can
 be modified to prevent or minimize these effects. Finally, requirements can be defined for all
 media at once.
       Facility-Specific Requirements
       Ensuring Enforceabilitv
       Facility-specific requirements are usually communicated through permits and licenses.
They are often based on specific criteria established in laws, regulations, and/or guidance, but
are customized to the specific conditions at the particular facility receiving the permit or license.
These documents may cover only certain requirements (e.g., those concerning a single
                                           3-22
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environmental media) or may comprehensive documents covering all requirements that the
facility must meet.

       Permits and licenses are intended to be practical documents that require or prohibit
specific activities. To be enforceable, permits and licenses must generally be clear, precise, and
unambiguous. Several practical steps can be taken to help ensure permits and licenses have
these qualities:

       •      Train permit- and license-writers in the permit- and license-writing processes.
       •      Use standard forms to ensure  that each permit and license contains all essential
              information.
       •      Where appropriate, use "model" permits or licenses.  A model permit/license
              contains requirements that are generally applicable to a specific type of facility.
              The model is then slightly modified by the permit- or license-writer to develop an
              individual permit for a specific facility.
       •      Provide clear instructions  to the permit- or license-writer about how to prepare
              the permit or license.

       Table 3-7 provides a checklist that permit- and license-writers can use to ensure the
enforceability of permits and licenses. Writers of facility-specific requirements will need to
consider whether the permit conditions might conflict with those in any of the facility's  existing
permits or licenses.  Conflicts and contradictions between different environmental permits and
licenses can invite noncompliance. Multimedia permits or licenses that encompass all relevant
environmental requirements in a single document can overcome this potential problem.
Multimedia documents may also enable permit- and license-writers to prioritize requirements
based on  human health/environmental risk, the facility's resources for compliance, and
feasibility.
                                            3-23
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 TABLE 3-7. SAMPLE CHECKLIST FOR DEVELOPING ENFORCEABLE PERMITS


 GENERAL                     -    , "<•"<"   ,-,'
               Is the length of time that tfae permit wal be valid slearty stated?  Is a date
               specified to indicate when, the permit must be reissued and when an application
               for a sew petmit should" be fifed? t_
               Does the permit contain a provJsioa stating that the permit most be modified if
               ownership of the facility changes, 0* if the facility makes changes to its
               regulatedprocesses?         ,   ',_, -  ,       i         ",
               Do the permit eoaditioas coaSiet wjftb. eoadjtioas to any other permits that the
               facility has?                ;    ,  ">   '-*,','  -',-'--      ^       '         '
                                         •>   ^.     fSSSS A JV   % f   Sfff      * -.-.         •>
                                        "'"  '    '  ' -.'  ' S$,  '>,  &'     ] ,' '
               Is there a provision specifying that the permit can automatically be revoked if it
               is discovered that the applicaat deHberatel? submitted false, aiisleading, of
               incomplete information during the application process?
                                ••" ," "  ,.",S. xv~ ..*;,?     V     >         t
                                         <•'•'•'••-.   •,  v *y"fs.  <  ^v      '           *
               Does the permit state whether the owner or operator will be liable for
               noacomph'anee?            -     ,'«',',  \  "* -    '             ,,'•••
                                                    •sysx?
REQUIREMENTS
               Are requh-ements or other end results measurable?  Are the units of
               compliaaee clear?         -     -    ; (/ '"T- .             '"
                                                    •
                                                       ..  , ,,
               Does the peioait specify that a modificatioa ^wiil 6e te^uired if the requfremeats
               or criteria change?          "     ^    ^,;     i      ' •  '    .  .
MONITORING AND INSPECTION
              Does the permit clearly state exactly what the fadjity is requtired to monitor?
              Do these requirements support the compliance goals of the eaviroumental
              regulation?                T'    ' "   yr-f^-^ I   ,.   "              '"   .
               N     <        v            "•          •*•* •w'SP'j f ss, f t_ ^ v        ^
                          •-   ^                             ^f-f^ffff >    '  f f S s     ~"
              What test methods are needed to determine whether the facility is in
              compliaaee? Are the methods clearfy described a'ad available to the permittee?
              Are any allowable averaging times clearly specified?
                       '-,''•..              '   ..-„*,-»  ₯'ftj ~    -,,..,
              Does the permit make any attempt  to falsify self-monitoring data a separate
              enforceable violation?       '          '    , -,i    ""'   ,        "
                                         3-24
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       TABLE 3-7, SAMPLE CHECKLIST FOR DEVELOPING
                ENFORCEABLE PERMITS (continued)
*      Does the permit provide * clear schedule for

m      Does the permit authorise inspection procedures that will enable inspectors to
       gather data needed to determine compliance? Do these procedures cover:
       entering a regulated facility, iaspeetuig documents, and collecting samples?

•      Wit! inspectors be readily able to determine which facjMes are not in
       compliance?

•      Will the retirements for inspection and; self-monitoring help reduce
       enforcement costs and Increase the efifecOmiess of inspections?
       Does the permit clearly state what data the facility is required to record and
       report?

       Will these data show whether or not a facility is in compliance? "Will these data
       provide sufficient evidence to document a violation*?

       Is the facility required to report noncomplianee with permit requirements?  If
       so, does the permit specify a deadline for reporting aoncompliance #nd to
       whom noncompliance should be reported?

       Does the permit provide a clear schedule and formal for recordkeeping and
       reporting?                                    "   ""'""    -   "

       Does the permit specify to whom t&e information should fee reported?

       Are tlie reporting *equipments frequent Enough to allow timely response to a
       violation?  Is the facility required to retain ^information long enough for  ;- ^
       enforcement purposes?

       Does the permit mafej failure to maintain or report records a separate
       enforceable violation?        ,»,  -                      -'
        Is the facili^ required to make records available upon request?
       "*•"••     ;•••••'•              f                 *                   %ss
        Are any exceptions to the reeordkeepingfand reportiag requirements clearly
        Will the tequirsnaents for tepottsi, jrecowte, and inspectioa/monitoring techniques
        help reduce enforcement costs and increase the effectiveness of inspections? ^
                                   3-25
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              TABLE 3-7, SAMPLE CHECKLIST £t)R BEVELOFING
                      ENFORCEABLE PERMITS (continued)
                       f             f  '        f   f \   % .j.-ffy.^^f. * ^   r
DEMONSTRATING COMPUANCE
              Does the permit clearly describe what constitutes compliance and how
              compliance is determined?                  ; ,  ;v
                 *                             '"'' '"^
              Does the permit dearly state who is responsible for proving compliance or
              noncoiapllance (as established by applicable law)?
                                              -\  '"  >'<'$''"'"*\\/;Tj:'k""'-< ••»
              DQes^thg permit define time Iteuts t*y which the facility must reach compliance?
              Do the time periods have specified beginnittg and end points? If compliance is
              defined by oceurrettce oJE an Went, tather tha%by a date, i$ the eveixt discrete
              enough for an inspector to determine whether the facility »s in compliance?
                                    3-26
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       The Permitting and Licensing Process


       The credibility of environmental enforcement programs will generally be enhanced if

facility-specific requirements are created as quickly as possible once an environmental program

is in place. A long lag time can give the appearance of a weak environmental program and

delay the application of environmental laws. Where start-up resources are limited, policymakers

may wish to at least implement requirements for facilities that emit large quantities of and/or

the most toxic pollutants  as soon as possible.


       The process for writing permits and licenses varies from one country to another, but

generally includes the following steps:


       •     The facility provides information about its operations and emissions to the
             government agency.

       •     A permit-  or license-writer reviews the information and requests additional
             information if necessary.

       •     The permit- or license-writer may inform interested parties  (e.g., the local
             community) that a permit or license is being prepared.

       •     The permit- or license-writer may provide an opportunity for any concerned party
             to comment on whether a facility should receive a permit or license and what the
             requirements should be.

       •     If necessary, a negotiation process is used to resolve any disputes between the
             permit- or license-writer, facility, workers, local community, and/or other
             potentially affected parties.

       •     After sufficient information-gathering, discussion, and negotiation, the permit- or
             license-writer decides whether to issue the permit or license.

       •     There may be a sanction if the permit- or license-writer discovers that the
              applicant submits  false, incomplete, or misleading information.
       The permitting and licensing processes provide an opportunity to make sure the facility

clearly understands what the requirements are and why it is important, both from an
environmental and legal perspective, to meet them. The city of Amsterdam in the Netherlands

uses a system of "prior consultations" to promote compliance. When a company seeks a permit,


                                           3-27
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the municipal government inventories the company's activities, the potential pollution, and the
environmental measures that should be taken.  Other relevant government officials (e.g., from
the Occupational Safety and Health Inspectorate, the Water Quality Manager, the Fire
Department, the Environmental Inspectorate) are invited to participate.  The inventory and
draft and final permits are explained in detail to the company management. The process is
designed to promote compliance by convincing the company of the necessity for taking
environmental measures and by making it clear that noncompliance will be met with corrective
action.
                                         3-28
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PART II: DESIGNING COMPLIANCE STRATEGIES
      AND ENFORCEMENT PROGRAMS
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                     4.  IDENTIFYING THE REGULATED COMMUNITY
                       AND ESTABLISHING PROGRAM PRIORITIES
INTRODUCTION

       Environmental requirements generally cover so many different organizations and individuals
that it is usually impossible to identify and respond to all violations or to promote compliance
among all members of the regulated community.  No matter how generous a program's budget is, it
will be small relative to the size of the regulated community.  By establishing priorities for detecting
and responding to violations and for promoting compliance, enforcement programs can operate as
effectively as possible with the given resources. Priorities help target the available program
resources to achieve maximum effect.  Priority-setting involves answering questions such as:
              How should program resources be apportioned between compliance promotion and
              enforcement response?
              Which facilities should be inspected? How frequently should inspections be
              conducted? How comprehensive should these inspections be?
              Which violations  should be responded to and how?
IDENTIFYING THE REGULATED COMMUNITY

       An important step in developing program priorities is to identify which groups are
regulated, and to understand as far as possible their sophistication, ability, motivation, and
willingness to comply.  An accurate profile of the regulated community helps policymakers focus the
compliance strategy (including both compliance promotion and enforcement response) to optimize
its effectiveness.  It is also valuable for designing compliance monitoring schemes (see Chapter 6).
The process of profiling the regulated communities makes the regulated community aware of the
requirements, aware that the enforcement program officials know who they are, and aware that they
will be expected to comply.  This contact with the regulated community is the first step in creating a
perception of an effective enforcement program.  Thus, the process of identifying the regulated
community can be a form of compliance promotion.
                                            4-1
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       The need for and ability to identify the regulated community depends in part on the size
and number of sources. If the regulated community consists of numerous small facilities (e.g.,
gasoline stations), it may be impractical  or impossible to perform a comprehensive survey.  In such
cases, program officials may decide to identify a subset of the regulated community (e.g., only those
facilities within a specific geographical area that is highly polluted). At a minimum, program
officials can maintain records of complaints reported, which will help identify potential violators.
       Important Information

       The regulated community may include:

       •      Corporations.
       •      Small businesses.
       •      Public agencies/government-owned facilities.
       •      Individuals.

       Information that can be useful hi designing a compliance strategy includes:

       •      Identifying information, e.g., name of facility.
       •      Geographic location, e.g., longitude and latitude, street address.
       •      Type of business or operation.
       •      Any existing license, permit, or product registration numbers.
                                                           l           i
       •      Types and quantities of regulated materials or emissions at the facility.
       •      Risk associated with the releases (if this has been calculated).


       Approaches To Gathering Information

       There are several ways to gather information:
                                             4-2
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              Inventories.  The enforcement program can inventory the regulated community
              either by requiring them to complete informational forms, or by sending inspectors
              to individual facilities to gather information.  One disadvantage of inventories is
              that they place a resource burden on the government agency and/or the regulated
              groups.  They require personnel tune and thus can strain operating budgets.
              Another difficulty with inventories is keeping the information current. This has
              proven  difficult in some programs. Government agencies will need to decide how
              often to survey the regulated groups. The need for information must be balanced
              with the cost of obtaining it.  Laws can help ensure the quality of data by making it
              illegal to falsify data.

              Permit  or License Applications.  Initial information can be obtained in conjunction
              with the permitting and licensing processes if the requirements make it illegal to
              operate without a permit or license.

              Registration.  In a registration process, facility managers are required to contact the
              environmental program to register particular information  about their facility or
              product. The disadvantage of this process is that it may be more difficult to ensure
              that all appropriate facilities have registered.  The degree of success in registering all
              appropriate facilities may depend, in part,  on the consequences of not registering.
              Facilities will be more likely to register if there is a benefit  for doing so (e.g.,  they
              get on a list for potential funding or contracts).

              Existing Records.  If the facilities have been regulated under a previous or existing
              program, records about their characteristic!; and compliance status may be available
              in program files.

              Other Sources.  Other government agencies or ministries  as well as industry sources
              may have information about the regulated community, e.g.,  sales tax receipts,  lists or
              surveys compiled by trade associations.

              Overflights.  Aircraft overflights and/or resultant photographs may be used to
              inventory facilities subject to environmental requirements.  Overflights are also
              useful to detect facilities that  may not have registered for a program  or filed
              required notifications, and to  define the relative locations of wastewater discharges,
              air emissions, hazardous waste management facilities, water supply intakes,
              populated  areas, etc., in specific geographic areas.
INFORMATION MANAGEMENT


       However information is gathered, the enforcement program will need to develop a system

(computerized if possible) to store, access, and analyze the information as needed.  Information

management can be enhanced by clearly assigning responsibility for maintaining a complete and

accurate database to a specific person or group within the enforcement program.
                                              4-3
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        The system can include not only the identifying information listed above, but also
 information on compliance (e.g., on compliance schedules, compliance status, violations, and
 outcomes of enforcement activities) as this information is gathered during the compliance
 monitoring phase of the program (see Chapter 6).  The ability to analyze the information on a
 facility-by-facility basis is useful to determine patterns of noncompliance.  The information may also
 be used to determine which facilities subject to the requirements have not applied for licenses or
 permits after being required to do so.  Information in the database can be made available to all
 program personnel who may need it.
CONSIDERATIONS IN SETTING PRIORITIES

       When setting priorities policymakers usually balance several important objectives.  These
may include:

       •      Protecting and restoring environmental quality and public health.
       »      Preserving the integrity of the program (i.e., making sure that the administrative and
               data-gathering aspects of the program are functioning effectively).
       •      Preserving the integrity of enforcement (i.e., maintaining an enforcement presence).
       •      Leveraging program resources by focussing on the smaller subset of facilities where
               changes can have the greatest impact in improving environmental  quality and/or
               creating deterrence.

       Often most of the pollution is caused by a small percentage of sources (e.g., 20% of the
regulated community may cause 80% of the pollution).  A program with limited resources can gain
significant environmental benefit by focussing on these sources.  However, in cultures where
deterrence may also be an important factor contributing to environmental quality, policymakers will
need to balance the specific environmental benefits to be  achieved by this approach with the
potential deterrent effect of broader coverage. Policymakers will also need to balance the strong
deterrent advantages that  targeting 100% of a particular group for inspection and enforcement will
have on that particular group, with the broader deterrence that will result from selective inspection
and enforcement of a smaller percentage of a larger group. For example, program managers may
decide to inspect all facilities  of a certain type in a particular region. At the same time, they may
                                             4-4
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randomly inspect some facilities of that type in neighboring regions. Well-placed publicity
suggesting that any facility of that type in any of the targeted regions may be subject to inspection,
combined with publicity about actual inspections, could have substantial deterrent effect.

       Table 4-1 describes different approaches to selecting individual facilities and groups of
facilities  for inspection and enforcement. These approaches; are not mutually exclusive. They can
be combined to develop very specific priorities.  For example, program managers may decide to
inspect all significant violators within a particular geographic area that have a history of violation.
The selection process will be greatly enhanced by having an effective data management system  that
permits analysis of compliance patterns and comparison of sources.
WHO SHOULD SET PRIORITIES?

       Various levels of government (national, regional, provincial, and local) are often involved in
setting priorities.  One challenge is how to reconcile national, regional, provincial, and local
priorities. The relative involvement of these various levels in setting priorities will depend, to a
large extent, on the structure of the enforcement program (e.g., whether it is centralized or
decentralized, see Chapter 8). National involvement in priority setting helps ensure consistency and
harmony among regional,  provincial, and local priorities.  National involvement improves the
climate and potential for cooperation among the regions, provinces, and local governments for
achieving their priorities.  National consistency also creates a greater potential for harmonization
with priorities of  other nations.

       Involvement of regional, provincial, and local governments in priority setting is critical.
Individuals who are running the program at the regional/provincial/local levels will have the best
sense of what problems pose the most  significant threats to the environment and human health, and
of what factors motivate or inhibit compliance. Therefore, priorities will be most meaningful if they
take into account national, regional, provincial, and local needs and are flexible  enough to
accommodate all these perspectives.
                                             4-5
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                 TABLE 44* APPROACHES TO SETTING PRIORITIES
                        FOR INSPECTION AND ENFORCEMENT

PRIMARY GOAL: TO PROTECT AND RESTORE ENVIRONMENTAL QUALHV AND PUBLIC HEALTH
                                                              •v A % " •*
»       Significant Violators. Program officials may decide to target significant violators; (i,e., those
         believed to be causing &e greatest harm or posing the greatest "risk) for jnspectiba and
         enforcement  The potential harm or risk & determined by both the quantity and toxieity of
         facility discharges and emissions or the potential napaet of improper use, sewage, and disposal of
         hazardous substances.  "This approach, to targetting can achieve, significant environmental benefits
         if it causes the violators to come into compliance.  Significant violators are often well-known
         facilities. Successful enforcement can have substantial deterrent effect among other significant
         violators; however, ft may not deter fess significant violators who may come to believe they are
         "shielded* from enforcement by the focus on the other violators,
             of Industry or Industrial Process,  Program officials may decide to target for inspection and
        enforcement those industries that emit high-risk pollutants into air, water* or land. The
        advantage of this approach is that teams experienced in the processes, ^tactiees, and materials of
        that industry can be formed to conduct inspections and to follow through on enforcement actions,
        This approach can also create a deterrent effect as members of thi& facility group learn that they
        will likely be subject to enforcement if they are out of compliance,

»      Geographic Considerattons. 
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COMMUNICATING PRIORITIES

       Once priorities have been established, they will need to be communicated to all program
personnel and to the regulated community. A broad understanding of priorities improves program
efficiency and can promote compliance and contribute to deterrence.  Unions, trade associations,
and professional journals are good vehicles for communication.  In the United States, for example,
enforcement priorities, together with specific enforcement case and other information, are widely
communicated through the National Environmental Enforcement Journal.  Program officials must be
careful, however, not to  communicate information that would lead members of the regulated
community to believe they are unlikely to be targeted for inspection and enforcement.
REVIEW AND REVISION

       Priorities will need to change periodically in response to such factors as changes in the law
and  lessons learned under the program. Chapter 9 describes approaches to measuring and
evaluating the success of an enforcement program.  Policymakers will need to change priorities in
response to problems identified during these evaluations to improve the effectiveness of the
program.
                                             4-7
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                              5.  PROMOTING COMPLIANCE
INTRODUCTION

       Compliance promotion is any activity that encourages voluntary compliance with
environmental requirements.  Promotion helps overcome some of the barriers to compliance
discussed in Chapter 2.

       Most compliance strategies involve both activities to promote and enforce requirements.
Policymakers will need to determine the most effective mix of compliance promotion and
enforcement response.

       Experience has shown that promotion alone is often not effective.  Enforcement is
important to create a climate in which members of the regulated community will have clear
incentives to make use of the opportunities and resources provided by promotion.  Experience in
several countries has also shown that enforcement alone is not as effective as enforcement
combined with promotion. This is particularly true for example when:

       •      The size of the regulated community far exceeds the program's resources for
              enforcement, e.g., when the regulated community consists of numerous small
              sources, such as individual gasoline stations.
       •      The regulated  community is generally willing to comply voluntarily.
       •      There is a cultural resistance to enforcement.
Thus, promotion is an important element of most enforcement programs.

       This chapter describes six approaches to compliance promotion:

       •      Providing education and technical assistance to the regulated community.
       •      Building public support.
       •      Publicizing success stories.

                                            5-1
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        •      Creative financing arrangements.
        •      Providing economic incentives.
        •      Building environmental management capability within the regulated community.


 EDUCATION AND TECHNICAL ASSISTANCE

       Education and technical assistance lay the groundwork for voluntary compliance. They are
 essential to overcome barriers of ignorance or inability that otherwise would prevent compliance.
 Education and technical assistance make it easier and more possible for the regulated community to
 comply by providing information about the requirements and how to meet them, and by providing
 assistance to help regulated facilities take the necessary steps for compliance.  Education and
 technical assistance are particularly important in the early stages of a new requirement-based
 program, and whenever the program requirements change.


       Approaches

       Several types of information and messages can be communicated to regulated groups to
promote compliance:

       «     Who is subject to requirements?
       •     What are the requirements?
                                                           i         f
       •     Why are these requirements important?
       •     What changes (including technical  and managerial changes) must be made to
             comply with the requirements?
       •     How can these changes be made (e.g., What equipment should be used?  How
             should this equipment be operated?)?
       •     What are the consequences of not  complying?
                                           5-2
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       If deterrence is an important element of program strategy, the information communicated
can include not only educational information, but also reports of enforcement activities.  This helps
create an "enforcement presence" and an atmosphere of deterrence.  This atmosphere will help
provide an incentive for sources to  seek assistance and comply.  Table 5-1 describes different ways
to provide assistance to the regulated community.

       Promotion can be enhanced by developing a communications plan which specifies what type
of information will be communicated, how it will be developed,  when it will be released, and how it
will be distributed.  Similarly, a technical assistance plan can be developed to indicate what
assistance will be provided, to whom, and under what circumstances.

       A situation in the Netherlands provides one example of successfully using  assistance to solve
a compliance problem. Commercial establishments in the Netherlands are required to dispose of
their hazardous wastes through permitted processors. However, getting the waste to the processor
has been a problem for small businesses.  The processors are often unwilling to pick up small
amounts  of waste, and transporting small quantities of waste long distances to a processor places an
economic burden on small businesses.  Small companies were therefore often out  of compliance
with the  hazardous waste rules. The Dutch government helped solved this problem by establishing
a collection depot in nearly every town in the Netherlands. Both private citizens and small
companies may discard their waste at these depots at regular times.  This government-facilitated
cooperative arrangement was instrumental in helping solve this  compliance problem.
BUILDING PUBLIC SUPPORT

       The public can be a powerful ally in promoting compliance. Public support can help create
a social ethic of compliance.  The public can also serve as watchdogs that alert officials to
noncompliance.  If the laws provide the appropriate authority, members of the public or
nongovernment organizations representing the public can bring a citizen suit against noncomplying
facilities.  Public support can also help ensure that  enforcement programs continue to receive the
necessary funding and political support to be  effective.
                                             5-3
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                                          j.j
TABLE 5-1.  WAYS TO PROVIDE INFORMATI
                TO THE REGULATED '
                                                              -f
                                                      AND ASSISTANCE
                                                           ' '
                                         -   f,' <     .'          -  -   -
 Publications, such a$ brochures and guidance manuals, that , are created specifically for
 educational purposes and are distributed or made available to regulated groups.
                                             v"?V^' rvf^/a^'     j   '
                                         ' M  " ''i" -•  "• *4 \ Zf^t %     I
 Training Programs, designed specifically to educate the" regulated community about
 requirements and compliance,                            "     "-
 Conferences and other meetings that bring  together officials from the enforcement
 program, regulated communities, and other interested parties,
                              :•     •        * <• •   *'•?» ...<'"'>,s'         '•
 "Hot Lines" - dedicated telephone numbers that the regulated community can call to ask
 questions and receive information and assistance*
 "                                  f      if '. 1  ,   <. f.f     f
                                                    "['•*•%.
                                  ,, i                   £•.,-.'
 Technical Assistance, which can be p'rovided (!) by trained personnel who are available
 to visit individual members of the regulated eojmnuairy and iassist them in making the
 necessary changes for compliance, (2) by inspectors who provide technical assistance as
 part of their inspection, and (3) oy special assistance programs, set «p for example at
 universities, that provide a central resource for "information on  and assistance with
 compliance.   ,              '  '" """   ^  ,  -.^'^ '•" -^     \  -  '      ^''/-   -J'
                                       "      "''              "   "          '
                                             „
 Cooperative Arrangements - Program officials can facilitate coopemtive arrangements
 among small businesses that may want to coniply but dp not have the necessary resources
 to do so.  An "arrangement" could include, fo^examplX ^ small facilities set up with
 program funds to serve as processing centers for pollutants that must be controlled or,
 recycled.  In such cases, policymakers will need toJlmdeMwhether the services provided
 by the center are free or whether users must pay a charge.

 Media Announcements -information distributed through newspapers, television, or radio,
 This  can  include information about requirements,  ways to meet requirements, and
 enforcement activities. Reports of enforcement activities; can, be particularly useful in
 deterring  other potential violators,  , Public disQ|osurf  of violations and  of the
 environmental benefits, of the program^ enforcement activities can help create public
 pressure for compliance.              -  - - -           ,          ' ,'      "-"*
                          " "  ""  -  - - —"""***'               '   '
Tt- 3     1 **_        -                           '   *f-          '
Trade and Professional  Associations.   These groups usually have established  good
communication networks through their publications  and meetings!.  These activities
provide forums for the regulated community and enforcement program personnel to
exchange information and ideas,                '^'^y^l,  «„
  • •                                             "'-?"}--' f,
                                                    1  v»',tU   '  !  ,
Universities.  In some countries,, universities are .important centers for professionals.
University publications or conferences^  for example,  may be important channels for
educating  the members of the regulated community:
                                                    '< •-, '*.{.'•
Professional Journals,  Articles  and^ annoiuicejnents h these publications  are an
important way of reaching members of a specific professional community.
                                    5-4
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       Building public support may be particularly important groundwork in societies where
personal economic concerns compete with concern for environmental quality, or where there is a
general lack of awareness about or concern for environmental problems.  The public can be
educated about causes and effects of pollution, its short- and long-term threats to human health and
natural resources, and the costs to society.  The extent of environmental damage may be surprising
new information to the public.

       Enforcement programs can build public support by developing and distributing information
about environmental problems, the importance of compliance, program activities and successes, and
ways the public can  support the program.  Program officials can also work with nongovernment
organizations that represent the public to develop and distribute information and promote public
involvement.

       Nongovernment organizations can independently help promote compliance by publicizing
information to increase public awareness of environmental  problems and to build support and
pressure for compliance.
PUBLICIZING SUCCESS STORIES

       Program officials can provide an incentive for the regulated community to comply by
publicizing information about facilities that have been particularly successful in achieving
compliance.  In societies where the public does support environmental protection, positive publicity
about a firm's compliance success can enhance its reputation and public image.  Such publicity
helps create a positive social climate that encourages compliance.
CREATIVE FINANCING ARRANGEMENTS

       One barrier to compliance is cost. Facility managers may want to comply but may not be
able to afford the cost of fulfilling the requirements.  Creative financing arrangements that can help
solve this problem include:
                                            5-5
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                Offset Requirements.  This arrangement is essentially a tax 0:11 new investments.  It
                requires investors interested in building a new facility to pay for modifications (e.g.,
                installation of new process technology or controls on existing technology) that will
                reduce or "offset" pollution at an existing  facility. Offset requirements should not be
                so expensive that they will discourage new investments.  Some mechanism will be
                needed to ensure that the equipment in the existing facility is maintained and
                operated once it has been installed.

                Peer Matching.  Peer matching is similar to offset requirements, but voluntary. In
                this  case, investors interested in building a new facility are asked to "adopt" an
                existing facility and help it reduce pollution. Foreign investors,  in particular, may be
                interested in this arrangement as a means of promoting  good will in the local
                community and with government authorities.

                Sales of Shares.  In situations where a government-owned facility is being privatized,
                the facility can raise money by selling shares in the facility to  investors. This option
                can be particularly attractive if members of the local community are willing to invest.
                Proceeds  can be used to renovate the facility so that it can comply with
                requirements and reduce or eliminate the  impacts of pollution on the local
                community.

                Loans. Under this arrangement, institutions loaning money for new investments
                require that a certain portion of the loan be applied to restoration or protection of
                environmental quality.

               Environmental Bonds.  Government or private owners of a facility subject to
               environmental requirements can issue bonds to raise money to finance the changes
               needed to meet the requirements. The owners pay interest on the loan to the
               bondholders until they  are able to pay back the loan in full. In some countries, the
               interest earned from environmental bonds  is tax-free. Environmental bonds are
               particularly appropriate in situations where the facility can recoup the cost of
               compliance by charging users of the service or product a fee (e.g., municipalities can
               charge citizens and industry for water use to help pay the cost!! of water treatment).
               This  revenue helps assure bondholders that their loan will be repaid.
ECONOMIC INCENTIVES


       Environmental programs can encourage compliance by providing economic incentives for
compliance. This may be an effective approach in public agencies, which are less likely to be

deterred by monetary penalties, since they are funded by the government.  The benefit from

compliance can be applied to the facility generally, or to an individual based on his or her
performance.  Incentives include:
              Fees. The facility is charged based on characteristics (e.g., amount, rate, toxicity) of
              its pollution (e.g., effluent, emissions, waste).  Unlike monetary penalties, fees create
                                             5-6
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              an immediate cost to the facility for polluting.  Fees generate revenue that can be
              used by the enforcement program. Fees should be high enough to deter pollution,
              otherwise they are no more than a "license to pollute."

              Tax Incentives.  These are reduced taxes for costs associated with improving
              environmental quality, e.g., installing pollution control equipment, or changing a
              process to prevent pollution.

              Pollution Taxes.  These taxes are based on the volume and/or toxicity of emissions,
              effluents, or wastes generated.  Pollution taxes  can be a purely economic alternative
              to setting standards.

              Subsidies for Complying Facilities.  Facilities that comply with requirements can
              receive a subsidy to help defray the cost of compliance.

              Facility or operator bonuses for achieving better results than specified in permits,
              licenses, or regulations.

              Promotion points for senior managers in government-owned facilities achieving
              compliance.
BUILDING A FACILITY'S ENVIRONMENTAL MANAGEMENT CAPABILITY


       Many nations and international organizations, including the U.S., Canada, the Netherlands,
the European Community, the International Chamber of Commerce, and the United Nations
Environment Programme, are promoting the concept of building internal environmental

management capabilities within facilities to promote compliance and generally improve
environmental quality. One specific approach to building this management capability is
environmental auditing.


       Environmental auditing is a periodic and comprehensive evaluation of the management
systems and practices within a firm that affect environmental compliance. An environmental audit

may examine the need for many different management changes including:


       •      Development of a formal environmental compliance  plan or policy, including
              environmental management goals.

       •      Education and training programs for employees.

       •      Purchase, operation, and maintenance of equipment  needed to achieve
              environmental goals.
                                            5-7
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        •      Creating specific jobs or departments within the facility dedicated to achieving
               environmental compliance.
        •      Budgeting and planning for environmental compliance.
        •      Developing monitoring, recordkeeping, and internal and external reporting systems.
        •      Developing internal communications and chain-of-command systems to ensure
               compliance.
        •      Assessment of hazards and risks posed by facility emissions and/or wastes.

        Environmental auditing  may be performed by specially trained employees or by an
independent auditor that periodically visits and assesses the firm's compliance status and
recommends changes if necessary. The concept of environmental auditing is gaining support as
industry managers are finding good business reasons to run their operations in an environmentally
sound manner.  For example, many firms have discovered that valuable materials and energy can be
recovered from waste streams and reused or resold. Other firms want to reduce their chances of
                                                            !
being sued by the government or members of the public. In the U.S., securities' laws for
corporations require that publicly owned firms assess and disclose their potential environmental
liability; this requirement provides an incentive  for internal environmental auditing.

       Enforcement program officials are also promoting the concept of environmental auditing as
an integral part of good business practice.  Ideas for promoting environmental auditing include:
                                                            i
       »      Pilot projects to  introduce the concept of auditing to small- and medium-sized firms.
       •      Environmental advisors that assist firms in setting up simple internal auditing
              systems.
       •      Regional auditing centers run by industry that can provide auditing and advisory
              services to members of that industry upon request.
       •      International workshops to bring the concept of environmental auditing to countries
              that would like to encourage this practice among their regulated facilities.
       •      Hiring university staff or other management specialists to develop programs to train
              auditors.
                                            5-8
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Required disclosure of environmental liabilities (environmental impacts and
violations) in the written statements made when a company is issuing stocks or
bonds.
                               5-9
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                            6.  MONITORING COMPLIANCE
INTRODUCTION

       Monitoring compliance — collecting and analyzing information on the compliance status
of the regulated community — is one of the most important elements of an enforcement
program.  Monitoring is essential to:

       •      Detect and correct violations.
       •      Provide evidence to support enforcement actions.
       •      Evaluate program progress by establishing compliance status.

       There are four primary sources of compliance information:

       •      Inspections conducted by program inspectors.
       •      Self-monitoring, self-recordkeeping, and self-reporting by the regulated
              community.
       "      Citizen complaints.
       •      Monitoring environmental conditions near a facility.

These are described below.  Table 6-1 lists the advantages and disadvantages of these four
sources.  Additional information may come from reports from other national, regional,
provincial, or local agencies that have related jurisdiction over the facility; requests for
modifications to permits or licenses;  and environmental audits reports provided by the facility.
However information on compliance status is gathered, the enforcement program will need to
develop a system (computerized if possible) to store, access, and analyze the information as
needed (see Chapter 4).
                                          6-1
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               TABLE 6-1. ADVANTAGES AND DISADVANTAGES OF
              PRIMARY SOURCES OF COMPLIANCE
INFORMATION SOURCE
       ADVANTAGES
     DISADVANTAGES
Inspections
        the most relevant
and reliable information.
Can tee very fesource-
iatensive.  Must be carefully
targeted and planned,
Self-MonitorJinfe
Self-Recordkeeping, and
Self-Reporting
Provide much more extensive
information on compliance.
Shift economic burden of
monitoring to the regulated
community. May increase
level of management
attention devoted to
compliance within a facility.
Rely on integrity and
capability of source: to
provide accurate date. Place
a burden on the regulated
eoinmwnity and increase the
paperwork fisr the        , ,
compliance program.
Citizens
Can detect violations that are
not detected by inspections
or Industry self-monitoring,
-reporting, and -record-
keeping,    ,      '  "-
Sporadic.  Cannot control
the amount, frequency* or
quality of information
received* Only $ few %
violations are noticed by
citizens.,
Area Monitoring
Ilsefiil for
viblatiojBis* without entering
die facility. Also useful for
detcitnining,whether permit
orlifefense requirement are
prbviding adequate
environmental protection.
    be difficult to  „
demonstrate a connection
                                                       detected and a specific    .
                                                       source.  Difficult or
                                                       impossible to obtain precise
                                                       information. Resource-
                                                       intensive in areas of multiple
                                       6-2
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INSPECTIONS

       Inspections are the backbone of most enforcement programs.  Inspections are conducted
by government inspectors, or by independent parties hired by and reporting back to the
responsible agency. Inspectors plan inspections, gather data in and/or around a particular
facility, record and report on their observations, and (sometimes) make independent judgments
about whether the facility is in compliance. Inspections can be very resource-intensive,
therefore they require careful targeting and planning (see Chapter 4). By standardizing
inspection procedures,  enforcement officials can help ensure that all facilities are treated equally
and that all the appropriate  information is gathered.  By specifying deadlines for preparing
inspection reports, program  managers can help ensure that reports can be made available to
enforcement personnel without delay if there is a possibility of noncompliance.
       Types of Inspections

       Inspections may be routine (i.e., there is no reason to suspect that the facility is out of
compliance), or "for cause" (i.e., a particular facility is targeted because there is reason to
believe it is out of compliance). Inspectors may notify the facility prior to inspection or simply
arrive unannounced.

       There are many levels of inspection (see Table 6-2). At the simplest level, an inspector
can simply walk through a plant. Inspections get progressively more complex and time-
consuming as inspectors spend time in the facility to observe operations, interview plant
personnel, and take samples for analysis.  Inspection goals include:

       •     Identifying  specific environmental problems.
       •     Making the source aware of any problems.
       •     Gathering information to determine a  facility's compliance status.
       •     Collecting evidence for enforcement.
       •     Ensuring the quality of self-reported data.
                                           6-3
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                TABLE tf-2, THREE LEVELS OF INSPECTIONS
LEVEL 1: WALK-THROUGH INSPECTION

       This type of inspection is limited to a quick survey of the facility. Inspectors
       simply walk through the facility* for example to check for the existence of
       control equipment, observe work practices and housekeeping, and verify that
       there is a records repository* These inspections establish aa enforcement
       presence, and can also serve as a screening process to identify facilities that
       should be targeted for'more intensive inspection.
LEVEL & COMPLIANCE Ef ALtlAttON INSPECTION
       This level -involves^ thorough inspection of the facility, but does not include
       sampling/ It may Include visual observations like those in I^vel lt review and
       evaluation of records, interviews with facility personnel, review and critique of
       self-mottitorfog methods, instruments* and data, exanthiatioB of process and
       control devices', and collection of evidence of noncomplmnc4,,
LEVELS? SAMPLING INSPECTION
      This includes the visual and record jre^ew|jp|0ye other-inspection jevels, as well
      as preplanned wllection and analysis1 of physical samples* These inspections are*
      the
                                    6-4
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       •      Demonstrating the government's commitment to compliance by creating a
              credible presence.
       •      Checking whether facilities that have been ordered to comply have done so.

Inspections may focus on one or more of the following:

       •      Does the facility have an up-to-date permit or license?
       •      Has required pollution monitoring or control equipment been installed?
       •      Is the equipment being correctly operated?
       •      Are records of self-reported data properly prepared and maintained?
       •      Is the facility properly conducting any required sampling and analysis?
       •      Do the facility's management plans and practices support the required
              compliance activities?
       •      Are there any signs of willful violation of regulations and/or falsification of data?
              (Signs of willful violation or falsification include conflicting data, conflicting
              stories from  different employees at the same facility, monitoring data for which
              there is no supporting record or documentation, claims that employees  are
              ignorant of the regulations when company files show a knowledge of these
              requirements, and tips from employees or citizens in the local community.)

       Inspections usually begin with an opening conference to explain the  inspection  process to
the source. Some inspections end with a closing conference, in which the inspector may make
facility managers aware of any violations, how to correct those violations, and what the future
consequences of continuing noncompliance may be. Some enforcement programs do not allow
closing conferences because they want to avoid the risk that information given by the inspector
to the facility may somehow compromise future legal action.


       Gathering Evidence

       The inspector is responsible for gathering information to determine  whether a  facility is
in compliance and collecting and documenting evidence that a violation may have occurred.
                                           6-5
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 This evidence is used to support the development of enforcement cases, as well as to help the
 inspector prepare for and give testimony when required.  Therefore, inspectors are required to
 follow certain procedures to ensure that whatever evidence they collect will be admissible in a
                                           i                l         i
 court of law. If standard procedures are not followed, there is a risk that  the evidence may be
 rejected in a court of law and that the time and expense invested in building a case will have
 been wasted.  Standard checklists are often developed for different types of inspection^ to
 ensure that the  inspections properly covers all the necessary aspects and that inspections  are fair
 and objective.  Sometimes inspectors are responsible for determining whether a violation has
 occurred; sometimes  this decision is made by program staff; in other cases, this decision is made
 by legal staff. Involvement of legal staff is essential when the requirement must be interpreted
 to determine whether there has been a violation. Because of concern about jeopardizing future
 enforcement cases, most inspectors in U.S. enforcement programs do not: make decisions about
 whether a violation has occurred.
       Written Inspection Report

       During the inspection, the inspector records notes on every aspect: of the inspection.
The inspector may also gather additional evidence, such as physical samples, photographs, and
copies of facility documents.  As soon as possible following the inspection, the inspector
prepares and files an inspection report, which references any additional evidence collected
(photographs, documents, etc.).  Any samples collected are sent to a laboratory  for analysis.
Analytical data are interpreted and presented in the final inspection report. This report serves
                                                           I          !
as the basis for any testimony by the inspector and will likely be used as evidence should the
case go to trial.  Elements of an inspection report may include:
                                                                     i
       •      The specific reason for the  inspection.
       •      Who participated in the inspection.
       •      That all required procedures for conducting an inspection were complied with.
       •      The actions taken during the inspection, including the chronology of the actions.
       •      The evidence obtained during the inspection.
       •      Observations made during the inspections.
                                                           i          I
                                            6-6
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              The results of sample analyses related to the inspection.
       Inspection Plan

       An inspection plan developed before going on site helps ensure the quality and value of
the inspection.  An inspection plan provides an organized step-by-step approach to conducting
the inspection.  However, some flexibility is also important to allow the inspector to adapt to
unanticipated situations at the facility.  Table 6-3 lists some common elements of an inspection
plan.
       Targeting Inspections

       Virtually any enforcement program, no matter how adequately funded, will never have
enough resources to inspect all regulated facilities. Therefore, the major issue to be considered
in creating an inspection program is how to target the scarce inspection resources to achieve
maximum effect (see Chapter 4). Once a source has been targeted for inspection, program
officials must decide what level of inspection to conduct.

       In the United States, even very simple inspections have been found to have a significant
deterrent effect if they succeed in identifying potential violations. Therefore, where appropriate,
the U.S. program encourages simpler, less expensive inspections for sources that are thought
likely to be in compliance. More expensive and intensive inspections are necessary for sources
likely to be out of compliance.  In selecting sources for more intensive inspections, enforcement
programs can consider several factors:

       •     A source's potential  to harm the environment.
       •     The  complexity of the inspection needed to evaluate compliance.
       •     The  compliance history of the source.
       •     The  compliance history of similar sources.
                                            6-7
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            TABLE 6&  ELEMENTS OF AN INSPECTION PLAN

                                       -"'-'" -;  -!  "C     i _ -
•   OBJECTIVES                                         ;

    -  What is the purpose of the inspection?
                                                 i  -v                ,.
    -  What is to be accomplished?        ^ ~ ',,,   '• "       \

m   TASKS                            %   ^-i  ,L1 ,    ;

    -  What information will be reviewed (e*g^ permits, licenses, regulations, previous
       inspection reports,  information on the history oi' compliance)?

    -  What coordination mth laboratories, other environmental programs, lawyers, or
       government: agencies i$ required?               '
    -  What inJomtatioa ntust be collected?
    -  What $pecific facilify processes wi^be, inspected? '
                                       "'"',}•"'
    -  What procedures tvili be used?            -<<*t>^~

    -  Will the impecfioji require stpecjaj procedures?
                              •*   -.  ^       f f   f    f       '  >
    -  Has a quality a$surance/quality control plan been developed and understood?

    r  What equipment w01 be required?            s"  1      •  -
                                                 '         '    ""  "* ^ ""
    -  What are responsibilities of eadh mejtt>er of the team?  „]
    -  What personnel will be required?

    -  Ha$ $. $afe^ plah been developed anc



    -  What ivtU fee the time requirements and order of inspection activities?

    -  What will be the milestones?  What must gei done vs/w^ajt' is optional to get
      done?                                        -x,,,    ">'"'",
                                 6-8
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       •      The availability of self-reported data.


       Another strategy for conserving program resources is to use a "tiered" inspection level,

i.e.:  Start with a less expensive inspection. If the source is in violation, take enforcement action to

require the source to correct the violation and do more extensive self-monitoring. Inspect again at a

more intensive level if the monitoring data indicate continued violation or if there is any other reason

to suspect a violation.  This approach assumes cooperation by facilities. It shifts some of the

burden of data gathering to the source and postpones resource-intensive inspections until lower-

level inspection and monitoring warrant the expense.
       Issues To Consider


       Policymakers will need to consider many issues when designing an inspection program.

For example:
              Selecting Facilities for Inspection.  How are facilities chosen for inspection?
              What proportion of inspections should be "routine," and what proportion should
              be "for cause?" How can routine inspections be fairly and neutrally distributed
              across the regulated community?

              Announced Versus Unannounced Inspections. When should inspections be
              announced versus unannounced? If inspections are announced, the facility's
              managers can make sure that the information requested and any essential plant
              personnel will be available when the inspector arrives.  Thus,  announced
              inspections can be more efficient.  Unannounced inspections, however, are more
              likely to discover the plant's true operating conditions. They are particularly
              useful when there is reason to believe the source is in violation and is
              misrepresenting its self-reported data or likely to destroy evidence if the
              inspection is announced.

              Frequency  of Inspection.  How often should a particular facility be inspected?
              Policymakers will need to balance the cost of inspections with the expected
              compliance benefit.  Sources that are more likely to fall out of compliance may
              require more frequent inspections.

              Who Should Inspect. Which level of government will provide the most effective
              inspection force: national, regional, provincial, or local?  Would it be more
              effective for the government to contract with an independent group to perform
              inspections?
                                            6-9
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 Legal Authority.  What legal authority do inspectors have to enter facilities?
 What procedures will be taken if the facility refuses to allow the inspection?

 Role of the Inspector.  Should the inspector determine whether a violation has
 occurred or should the inspector simply gather information?  The inspection may
 fail to meet the needs of enforcement if the inspector's role is not clear.
                                              I          :
 Comprehensiveness of the Inspection. What data should inspectors gather?
 Should inspections focus on data needed under a particular regulation, permit, or
 license, or should inspectors  try to gather data relevant to several environmental
 regulations, permits, or licenses?  The advantage of focusse d inspections is that it
 is easier to train inspectors for these inspections.  The disadvantage is that more
 focussed inspections may fail to detect noncompliance in areas not specifically
 covered by those inspections.

 Inspection of Related Activities.  To what extent should inspectors also gather
 data on company activities that may affect environmental quality, such as
 preparedness for chemical emergencies, pollution prevention activities, and waste
 minimization programs?

 Objectivity of the Inspector.  Care is needed to ensure that inspectors do not
 become so familiar with and  sympathetic to certain facilities and facility managers
 that their objectivity is compromised. Some enforcement programs periodically
 rotate inspectors to avoid this possibility.

 Closing Conference.  Should the inspection include a closing conference?  A
 closing conference provides an opportunity for the inspector to make company
 managers aware of any violations and what the consequences of continuing
 noncompliance would be.  In some cases,  the inspector may suggest ways to
 correct the violation. A closing conference helps educate the regulated
 community. However, information conveyed by the inspector could undermine
 subsequent legal taken against the facility.  For example,  facility managers could
 claim the information conveyed by the inspector contributed to noncompliance if
 the information was in any way misleading or not sufficiently  comprehensive.
 Program lawyers may prefer that inspectors  draw no conclusions and convey no
 information about compliance.

 Documenting the Violation.  How should the information gathered by the
 inspector be documented?  The information's value to the program may depend
 on such factors as clarity, completeness, and utility  as evidence  in a court of law.

Inspector Training. How can inspectors be adequately trained to gather accurate
information and (if relevant)  provide technical assistance? What training is
needed to ensure the health and safety of inspectors?

Data Quality.  How can the quality of data be assured? Ways to help  ensure
data quality include initial reporting procedures, processes for review and
confirmation of the data, and schedules and procedures for  auditing the

                             6-10
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              program's reporting and recordkeeping system.  Guidance should also be
              developed to ensure the quality of the laboratory analysis supporting the
              inspection.
              Consistency of Sampling and Analytical Procedures.  Use of consistent methods
              and procedures for sampling and analysis is important to ensure data quality,
              fairness of enforcement, and the value of the results for legal proceedings.  Both
              inspectors and analytical laboratories will require guidance on appropriate
              procedures.
       Inspector Training

       Inspectors have a great influence on the success of a compliance monitoring program.
They are responsible for identifying facilities that are out of compliance and gathering evidence
for enforcement actions. They are often the only environmental officials that a facility manager
will ever see in person, and may serve as the key witness in enforcement cases. Inspectors
require training in a broad range of skills:  legal, technical, administrative, and communication
(see Table 6-4). They will need to be technically competent in the subject(s) of the inspections
they perform, and skilled in obtaining crucial facts and in collecting and preserving evidence of
noncompliance. Also, they need to be skilled in managing projects, working in a team, and
effective communications ranging from entry conversations to complex cross examination in
cases of serious violations. The training and integrity  of inspectors are therefore critical to
effective enforcement programs.
       Support Resources

       The kind of equipment required to support an inspection varies depending on the type
and purpose of inspection. Equipment needed may include:
              Safety equipment to protect the inspector from any hazards that may be
              encountered during the inspection.
                                    i
              Documentation equipment, including cameras, film, pocket calculators, tape
              measures, and logbook, to record information and evidence.
                                           6-11
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              TABLE 6-4. ELEMENTS OF INSPECTOR TRAINING
BASICS OF COMPLIANCE AND ENFORCEMENT

       Introduction to Environmental Compliance    ,        -
       Summary of Environmental Requirements
       Components of an Enforcement Program
       Organizational Structure for Compliance and Enforcement
       Role of the Inspector/Field Investigator
                                      '-^"'•^-"r, „-{-     _  | «.
LEGAL ASPECTS OF RESPONSE  INSPECTIONS AND ENFORCEMENT
       Enforcement litigation
       Entry and Information-Gathering Tools
       Evidence

PRE-INSPECTION ACTIVITIES
      Pre-inspection Planning and Preparation
      Administrative Consideration* for Inspectors

ON-SITE ACTIVITIES

      Oaining Entry and Opening Conference
      Ensuring Inspector Health and Safely
      Records Review                  ,     ;
      Physical Sampling '                  ---/
      Interviews            '         ,„;„'-
      Observations and ^lustrations       >~ <"'*',
      Oosing <^nfeyence/Ticavel Security Measures/

POST-INSPECTION ACTIVITIES     ;
      Reports and BJes
      Laboratory Analysis
      Enforcement Proceedings

COMMUNICATIONS
      Serving as an Expert Witness at Enforcement Pi-pcee^ings
      Press and Public Relations
      Communications Skills
                                  6-12
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              Sampling equipment to take samples of soil, water, and/or air.

              Analytical equipment to analyze the environmental samples taken at the facility.
SELF-MONITORING, -RECORDKEEPING, AND -REPORTING BY THE REGULATED
COMMUNITY
       Self-monitoring, -recordkeeping, and -reporting are three ways in which sources can be

required to track their own compliance and record or report the results for government review.

Increasingly, self-monitoring, -recordkeeping, and -reporting are being recognized as providing

essential data to supplement and support inspections.
              In self-monitoring, sources measure an emission, discharge, or performance
              parameter that provides information on ithe nature of the pollutant discharges or
              the operation of control technologies. For example, sources may monitor
              groundwater quality, or may periodically sample and analyze effluent for the
              presence and concentration of particular pollutants. Sources may also be asked
              to monitor operating parameters on pollution control equipment (such as line
              voltage and electrical current used) that indicate how well the equipment itself is
              operating. Operating parameters are generally inexpensive to monitor and
              provide  reliable data that give a more accurate and representative picture of
              emissions than occasional sampling and analysis of the emissions themselves.
              This type of monitoring has proven to be a cost-effective way for enforcement
              programs and sources to assure themselves that controls are operating correctly.

              Self-recordkeeping means that sources are responsible for maintaining their own
              records of certain regulated activities (e.g., shipment of hazardous waste).

              Self-reporting requires that sources provide the enforcement program with self-
              monitoring or -recordkeeping  data periodically and/or upon request.
       Self-monitoring, -recordkeeping, and -reporting provide much more extensive

information on compliance than can be obtained with periodic inspections. Self-monitoring, -

recordkeeping, and -reporting requirements also shift some of the economic burden of

monitoring to the regulated community, and they provide a mechanism for educating this

community about the compliance requirements.  Self-monitoring, -recordkeeping, and

-reporting may also increase the level of management attention devoted to compliance, and may

inspire management to improve production efficiency arid prevent pollution.
                                          6-13
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       Self-monitoring requires that reliable and affordable monitoring equipment be available
to the regulated community.  Self-monitoring, -recordkeeping, and -reporting rely on the
                                           !                I         I
integrity and capability of the source to provide accurate data.  The data will be misleading if
the source either deliberately falsifies the information or lacks the technical capability to provide
accurate data. Therefore, programs using self-monitoring, -reporting, and -recordkeeping will
need to establish some way to help ensure accuracy, e.g., by requiring self-monitoring only in
facilities with the appropriate technical capability, by developing quality control standards for
monitoring and recordkeeping, etc.

       In the United States, self-monitoring, -recordkeeping, and -reporting are often required
by environmental regulations (see Table 6-5). Enforcement officials translate these regulatory
requirements to facility-specific requirements via permits.  Information from self-monitoring, -
recordkeeping, and -reporting is used primarily to target inspections.  It is also sometimes used
                                                           i
as a basis  for enforcement actions. Usually, it is supplemented by inspections to corroborate the
accuracy of the data.
       Issues
       To use self-monitoring, -recordkeeping, and/or -reporting as part of an enforcement
                                           '.                i         i
program, program officials will need to provide guidance to the regulated community on the
standard procedures, methods, and instruments that should be used to obtain the data; on how
frequently data should be collected; and on how the data should be recorded and reported.
Some issues to consider in developing these requirements are:
              Cost.  What will the cost and paperwork burden be to industry and government?
              What will the benefits be? Are the benefits worth the cost?
                                                           j         i
                                                           i
                                                           1         :
              Technology Requirements.  Is technology available for monitoring?  How much
              does it cost?  How accurate and reliable is it? How easy is it to learn how to
              operate the equipment to get accurate results?
              Data Use. How exactly will enforcement officials use the data? What
              information will the data provide about violations or compliance success? What
              is the minimum amount of data that will be useful?
                                           6-14
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            TABLE <>"$*  EXAMPLES OF SELF-MpNTTORINGi -REPORTI)Sr engines frominoior vehicles), self-
monitoring and self-reporting requirements are imposed primarily on institutions that can easily
affect the emissions of many vehicles at once, e>g., the vehicle manufacturers, maintenance
shops, and fuel suppliers.

HAZARDOUS WASTE. This program regulates tens of thousands of different waste handlers  '
who handle a wide variety of wastes* Self-monitoring, -reporting, and-recordkeeping are very
important because of the immense size and variability of th& regulated community,  A^ stogie
recordkeeping document must accompany a shipment of hazardous waste wherever the waste
travels.  Each individual handier of the wasleXgeaerators, transporters, storage facilities,
treatment facilities, and disposal facilities) must sign the document and keep one copy*
Generators must Jceep a copy of this document for 3 years after shipment.  Every other year,
generators must also provide information on their activities to their authorized state agencies or
to the TJ«S< Environmental Protection Agency* Treatment, storage, and disposal facilities must
perform self-monitoring* For example, groundwater monitoring is often required to detect teaks
at landfills; waste incinerators maybe required to continuously monitor the temperature an
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              Extent of Requirements.  Should the source be required to report all data or just
              data that indicate a potential violation? Proponents of the "all data" requirement
              argue that more management attention will be paid with routine reporting and
              that enforcement officials can better control the quality of data.  Proponents of
              exceptional reporting argue that this is much less expensive, and that the "all
              data" approach may discourage sources from voluntarily conducting additional
              monitoring that they feel may be valuable.

              Public Disclosure.  Should the self-reported data be made available to the public?
              Most U.S. environmental laws require that self-reported data be made available
              to the public.  This publicity effectively  deters violations and failure to report,
              especially when the law also gives citizens the right to sue sources.
                                           ,                   ..       i
              Self Certification.  Should senior industry officials be required to certify that the
              facility is in compliance?  Increasingly, U.S. laws are introducing this requirement
              and making senior officials personally liable for  false reporting.  This is an
              effective way to elicit the attention and cooperation of senior management in
              achieving compliance. Such requirements will be meaningful only if they are
              backed by clear guidance on and procedures  for self-certification. Self-
              certification may also include a requirement to report violations and efforts to
              correct them.
CITIZEN COMPLAINTS

                                                                     i
                                                           i          i
       Citizen complaints are an important way of detecting violations that are unlikely to be

detected through self-reporting or inspections. These include violations that take place in

isolated areas, and illegal acts within an organization.  Enforcement programs can help educate

and train citizens to detect and report problems. One U.S. program encourages citizen

involvement by providing a financial reward for any report that leads to a conviction of the

violator.
AREA MONITORING


       Information on compliance status can be gained by area monitoring, i.e, monitoring
environmental conditions near a facility.  Area monitoring includes ambient monitoring, remote
sensing, and overflights.
                                           6-16
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       Ambient Monitoring

       This includes any monitoring to detect pollutant levels in the ambient air, ground, or
surface waters near a facility.  The main problem with ambient monitoring is that it can be
difficult to demonstrate that the pollutants measured came from a particular facility. Ambient
monitoring is most useful when a source is the only signiiScant polluter in the area, or when its
emissions have a characteristic composition that serves to "fingerprint" them. In these cases,
ambient measurements clearly suggest potential violations at a facility, and can be used to target
inspections.  In the United States ambient data are rarely used alone to prove a violation
because of the difficulty of proving a connection with the source.
       Remote Sensing

       Remote-sensing techniques can provide positive proof from outside a facility's
boundaries that the facility is violating an environmental requirement.  The most developed
remote-sensing technique is laser-beam  radar, also known as "Lidar," for "light detection and
ranging."  This technique measures the density of a smoke plume by day or night.  It is relatively
inexpensive compared to other air monitoring methods such as stack tests.
       Overflights

       Both satellites and aircraft can be used to measure ambient and source-specific
conditions. Satellites have been useful for detecting large discharges of water pollutants and are
most often used to trigger inspections. Satellite images are usually too coarse to calculate the
magnitude of the violation.
       Aircraft overflights can be even more effective than satellites for compliance monitoring.
Airborne cameras can detect and record the densities, temperatures, and area of air and water
discharges.  Even some biological effects in streams can be detected from the air. Perhaps most
significantly, overflights can be used to observe the physical characteristics and work practices at
                                           6-17
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a facility.  For example, dikes and fences can be observed and checked against permit records
                ;"                         :                 i         !                       !
for correct location and condition. Practices such as the loading and unloading of hazardous
materials can be observed. Production levels can be estimated from the air and compared to
                                                          iii
assumptions used in permits or licenses.

       Overflights may also be used to detect facilities subject to environmental requirements,
to detect facilities that may not have registered for a program or filed required notifications,
and to define the relative locations of wastewater discharges,  air emissions, hazardous waste
management facilities, water supply intakes, populated areas,  etc., in spscific geographic areas.
                                                          i         i
       Overflights have been used very successfully for enforcement in the Netherlands.
Airplanes and helicopters have been used to detect illegal discharges and dumps, many of which
are clearly visible from the air. The responsible parties are notified about the detected
                                                          i         i
violations and requested  to act where necessary. Success was considerably improved when
helicopters began to work simultaneously with ground vehicles. Sighted violations were reported
                                                          i
to ground personnel who then immediately proceeded to the scene and dealt with the situation.
Periodic aerial photographs of wrecked yards and dump sites  have provided a good record of
these operations and how they are changing.  Where appropriate, these photographs can be
used in later investigations.
                                           6-18

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                   7.  ENFORCEMENT RESPONSES TO VIOLATIONS
INTRODUCTION

       Experience with environmental programs in many countries has shown that enforcement
is essential to compliance.  This is because, in any society, many people will not comply with the
law unless there are clear consequences for noncompliance.

       Enforcement by government programs seeks to correct violations and create an
atmosphere in which the regulated community is stimulated to comply because the government
has demonstrated a willingness to act when noncompliance is detected.  This atmosphere also
helps stimulate members of the regulated community to  prevent pollution and minimize waste
so that they are no longer subject to requirements. If authorized, a government enforcement
program may also seek to correct and redress actual or potential harm caused by environmental
pollution, whether or not the pollution violates a specific requirement.
       Government programs are but one means of enforcement.  In some countries, private
citizens and groups are empowered by law to bring enforcement actions against violators.
Insurance companies and financial institutions may require facilities to comply to be eligible for
insurance or a loan. Finally, social norms can be an effective method of ensuring compliance in
societies where there is strong social sanction for noncompliance with environmental
requirements. For example, the public may choose  to boycott certain products .if they believe
the manufacturer is harming the environment. All these nongovernmental forms of
enforcement can greatly enhance a government program. Policymakers can strengthen
government enforcement efforts by considering these other forces for enforcement when
designing government programs. For example, government officials may benefit by working
closely with concerned nongovernment groups on enforcement.  Policymakers may also wish to
focus government  enforcement activities on  areas not adequately covered by the private sector.

       Government enforcement capabilities will generally be most effective if they are in place
and used when requirements become effective. Delaying enforcement can undermine the

                                          7-1
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 credibility of the program and make it difficult to create an atmosphere of deterrence.
 Enforcement is often needed throughout the life of a regulatory program,  to achieve initial
 compliance and to ensure that those who have achieved compliance maintain it.

        Enforcement can be controversial because so much is at stake environmentally and
                                         1               i
 economically.  To be successful, enforcement requires support at all government levels and
 within all sections of the program.  Governments can demonstrate their commitment to
 enforcement by enacting enforceable requirements and by providing clear and consistent
 support. Program personnel can demonstrate their commitment by taking violations seriously
 because of their threat to the environment and to the integrity of the legal system.

        This chapter describes a range of authorities and response mechanisms for enforcement.
 Most countries with enforcement programs have some but not all of these  authorities and
 mechanisms. Each program  must work within  the possibilities offered by the legal system or
 systems under which the program operates.  This chapter describes issues to consider when
 doing this, and suggests new  possibilities that may be appropriate to consider when the legal
 system is being changed.
THE RANGE OF RESPONSE MECHANISMS AND AUTHORITIES

       All enforcement programs benefit from a range of authorities and response mechanisms
so that program officials can appropriately respond to the many different types of violations and
circumstances that will arise.
       Authorities
       In most countries, the range and type of response mechanisms available will ultimately
depend on the number and type of authorities provided to the enforcement program by
                                         ;               i
environmental and related laws.  These authorities provide the legal basis for enforcement which
is essential to the power and credibility of an enforcement program. Table 7-1 summarizes a
                                          7-2
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           TABLE 7-L T₯PES OF ENFORCEMENT AUTHORITIES*

Remedial Actions

    Authority to impose a schedule for compliance
    Authority to permanently shat down part of an operation
    Authority to temporarily shut down certain pans of operations or practices
    Authority to permanently shut down an entire facility
    Authority to temporarily shut down an entire facility
    Authority to deny a permit
    Authority to revoke a permit
    Authority to require a facility to clean «p part of the environment
    Emergency powers to enter and correct immediate dangers to the local
    population or environment
•   Authority to seek compensation for damage earned by the violation

Other

    Authority to require specific, testing and reporting
    Authority to impose specific labeling requirements
    Authority to require monitoring and reporting'
    Authority to request information on Industrial processes
    Authority to require specialized training (e;g.> in emergency response to spills)
    for facility employees
•   Authority to require, a facility to undergo ari enYironrnental audit

Sanctions
                                      >  f        •>/•••'        s
•   Authority to impose a monetary penalty with specified amounts per day par
      violation      "  "                                   ,,
•   Authority to seekJmprisonment (a jail term)
•   Authority to seek punitive damages, or fines within specified limits
•   Authority to sefee property       "             "           ""'""„",
m   Authority to seek reimbursement for goveramen£lclean«up expenses
•   Authority to bar a facility or company from government Joans, guarantee^ or
       contracts
•   Aathority to require service or community work to benefit the environment
•   Limitations on financial assistance
*This list of enforcement authorities & a hybrid and does not appear in any one law
or country. It is an example of the types of authorities that may be made available
to enforcement officiate through environment: laws. These authorities may be either
direct authorities or the authority to seek a court order to impose the sanction.
                                      7-3
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 range of authorities that may be useful for an enforcement program.  This list is an amalgam of

 the authorities of several different enforcement programs in the United States and other

 nations.
       Response Mechanisms



       Enforcement mechanisms may be designed to perform one or more functions:



       •     Return violators to compliance.

       •     Impose a sanction.

       •     Remove the economic benefit pf noncompliance.
                                                         ;

       »     Require that specific actions be taken to test, monitor, or provide information.
                                                         i
       •     Correct environmental damages.
                                                         I
       •     Correct internal company management problems.



       Response mechanisms generally fall into the following categories, described below:
                               INFORMAL or FORMAL

                                              /\
                                         CIVIL or CRIMINAL
                       ADMINISTRATIVE or JUDICIAL
INFORMAL MECHANISMS
                                                                  i


       Informal responses include phone calls, site visits, warning letters, and notices of

violations (see Table 7-2). Informal responses advise the facility manager what violation was
                                         ill
found, what should be done to correct it, and by what date.  The goal of informal action is

simply to bring the violator into compliance or to initiate formal legal process.  Informal
                                          7-4
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responses themselves do not penalize and cannot be enforced, but can lead to more severe
response if they are ignored.
FORMAL MECHANISMS

       Formal enforcement mechanisms are backed by the force of law and are accompanied by
procedural requirements to protect the rights of the individual.  Formal mechanisms are either
civil or criminal as described below.  As indicated by the diagram, above, civil actions may be
either administrative (i.e., directly imposed by the enforcement program) or judicial (i.e.,
imposed by a court or other judicial authority).  Authorities to use formal enforcement
mechanisms must be provided in environmental laws.
       Civil Administrative Enforcement

       Civil administrative orders are legal, independently enforceable orders issued directly by
enforcement program officials that define the violation, provide evidence of the violation, and
require the recipient to take corrective action within a specified time period.  If the recipient
violates the order, program managers can usually take further legal action using additional
orders or a court system to directly force compliance with the order.  What distinguishes
administrative response from judicial response, defined below, is that the legal action is handled
by an administrative system within the organization responsible for implementing the
enforcement program.  The administrative processes may be similar to those provided by the
court system.  Two advantages of administrative enforcement are that it does not require
coordination with a separate judicial agency and the administrative organization's own
administrative law judges are usually more knowledgeable because they are dedicated to
addressing environmental problems. Therefore, administrative actions are usually resolved more
quickly and require less time and expense than judicial actions. Administrative orders are not
self-enforcing, however. If the order is not complied with, further enforcement action will need
to be pursued through the judicial system.
                                            7-5
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                                   •>    •> *> ^ XS f f ff,   ff      I •,-.•'
           TABLE ?•& TXPES OF INFORMAL RESPONSE
                                        - •              i                •"'
 Telephone Call*  This is perhaps the simplest way to notify or remind a source
 that a violation has occurred and must be corrected. The caller may also
 request that the violator follow ap with a letter that describes what action was
 taken.                            , ;," '-  '"-'•  *' -    I
Inspection, An inspector can make facility managers aware of a problem and
provide assistance in correcting the problem.  At the same time* an inspector
can gather 
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       Field citations are administrative orders issued by inspectors in the field. Typically, they
require the violator to correct a clear-cut violation and pay a small monetary fine. Field
citations are much like traffic tickets.  Depending on the procedural steps defined by the
program, the violator can either appeal the citation, pay it, or risk more formal enforcement
action. Field citations are generally used at the provincial and/or local levels to handle more
routine types of violations.  They can be a relatively efficient means to enforce certain violations
that are clear and do not pose a major threat to the environment.  To issue field citations,
inspectors need training to  identify the particular violations for which citations can be written.
       Civil Judicial Enforcement

       Civil judicial enforcement actions are formal lawsuits before the courts.  Some nations
with civil enforcement authorities rely exclusively on civil judicial actions to enforce
environmental laws.  Other nations have adopted both administrative and judicial mechanisms
to carry out civil enforcement authorities.  Where available, administrative enforcement is
generally preferred as a first response (with some exceptions), because judicial lawsuits are far
more expensive, require more staff time, and may take several years to complete. However,
judicial enforcement has several advantages.  It is often perceived as having greater significance
and therefore has more power to deter potential violations and to set legal precedents. Also,
the courts are often uniquely empowered to require action to reduce immediate threats to
public health or the environment.  Thus, judicial enforcement can be essential in emergency
situations.  The courts also play an important role in enforcing administrative orders that have
been violated, and in making final decisions regarding orders that have been appealed.
Therefore, when administrative enforcement mechanisms are available, civil judicial responses
are generally used against more serious or recalcitrant violators, where precedents are needed,
or where prompt action is important to shut down an operation or to stop an activity.
                                            7-7
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        Criminal Enforcement

        Criminal judicial response is generally considered appropriate when a person or facility
 has knowingly and willfully violated the law, or has otherwise committed a violation for which
 society has chosen to impose the most serious legal sanctions available.  These responses seek
 criminal sanctions, which may include monetary penalties and imprisonment.  Nations such as
 Canada that now rely exclusively on criminal law for environmental enforcement have also
 developed creative sentencing provisions to introduce other remedies and sanctions (such as
 community service and required environmental audits)  designed to "punish" the wrongdoing (see
 Table 7-1).  While criminal response can be the most difficult type of enforcement, it can also
 create the most significant deterrence since it personally affects the lives of those who are
 prosecuted and carries with it a significant social stigma.  Criminal cases require intensive
 investigation and case development.  They require proof that a violation has  occurred and may
 require proof that an individual or business (through its employees)  was knowingly and willfully
 responsible for the violation.  Specially trained criminal investigators may be necessary to
 develop criminal cases.

       The ability to apply criminal enforcement in environmental cases depends on a country's
legal system and on whether appropriate  authority is provided in environmental or other laws.
For example, in the United States there are generic statutes that make it a crime to report false
information. Conversely, in Hungary only a "natural person" can be  criminally liable, and a
   _
facility or business is not considered to be a "natural person."  Under these circumstances,
criminal enforcement is difficult because the facility itself is not answerable for the "crime"  and
it is often difficult to identify which individuals within the facility were responsible.
                                           7-8
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THE ENFORCEMENT PROCESS


       Protecting Basic Rights


       Every nation has its own unique legal system, laws, and culture. However, common to

all democratic institutions are processes to balance the rights of individuals with the

government's need to act, often quickly, on behalf of the public.  Several processes may be used

to ensure fairness of enforcement responses:


       •     Notice. Some enforcement programs require that a notice of violation be issued
             before any formal enforcement action is pursued. The violator may be offered
             an opportunity to (1) contest the finding of violation and/or (2) to correct the
             violation within a specified time frame to avoid further government action.

       •     Appeals.  There are often several points in the enforcement process when a
             violator can appeal either the finding that there is a violation, the remedial action
             required by the enforcement program, or the severity of the proposed sanction.

       •     Dispute Resolutions. Most enforcement responses are bound to create disputes
             between program officials and facility representatives.  In such cases, programs
             often use special procedures designed to resolve disputes (see Table 7-3).

       In general, the more an enforcement action may deny an individual his or her rights, the

more protections the enforcement process provides and the longer the process may take before

final action is initiated.
       Supporting the Enforcement Case


       Many issues may be raised and disputed in typical enforcement actions. Enforcement
officials should always be prepared to:


       •      Prove that a violation has occurred.

       •      Establish that the procedures and policies were fairly and equitably followed and
              that the violator is not being unduly "picked on."
                                           7-9
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TABLE 74. TYHCAL DISPUTE RESOLtmON PROCEDtJBES
   Face~to~face negotiations Jtetween program officials and the violator either:
                                            i   •>
                                            S  i',"     i
   *  Before format enforcement response is pursued*  At this point in the
      process, the discussion usually focuses on whether there has been a
      violation.  If agreement is reached, there may also be a discussion of
      the required response and schedule for response.

   -  After formal administrative or civil judicial enforcement action is
      initiated but before it is final  These negotiations are carried out
      during settlement discussions. The resulting agreement, e,g.,  an
      administrative order or a settlement,'is placed before a final
      decisionmaker* e.g., a judge, for approval.
                           '"    -•                    !
   Presentations Ttefore a decisionmaker (often a judge or hearing examiner)
   who makes a decision about a fact or legal point after hearing both sides
   of the issue.           -            ' "- ' ,.'", ^ ,     i
                                              ' •-"     i
   Vise of third parties. Third parties (e.g., mediators, arbitrators, and
   facilitators) may be called upon by enforcement official^ or by agreement
   of the parties to break an Impasse.  An experienced tlurcl party can
   change the dynamics, provide new perspectives, and propose possible
   solutions. Specialized third parties are particularly useful for resolving
   highly complex technical issues that  a lawyer or judge would be unlikely
   to fully understand.                  - -           , ,;  ,
                          7-10
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              Demonstrate the underlying environmental or public health need for the
              requirement being violated. (This need is often met when the requirement is
              developed. However, it may be necessary to reiterate the importance of
              compliance with the requirement to justify and support an enforcement case.
              This is particularly true when a case is being argued in front of an independent
              decisionmaker who is not familiar with the requirement or its environmental or
              public health basis.)
              Demonstrate that a remedy for the violation is available (e.g., affordable
              pollution control equipment).  (Even though this is not usually the responsibility
              of the government, this information can be important to negotiations.)
              Demonstrate the ability of the violator to pay, e.g., showing that a "poor" facility
              is owned by a wealthy parent company.
       The Role of Negotiation

       Negotiation is an integral part of enforcement.  In the United States, most enforcement
cases are settled through negotiation rather than by unilateral decision. Negotiation enables
both the facility and the concerned party or parties to consider the correctness of the facts, the
circumstances of the case, and the variety of alternative responses. Negotiation provides an
opportunity to obtain  additional  information and correct misinterpretations before pursuing
legal action.  Negotiation also provides an opportunity to reach a solution that satisfies all
parties. Enforcement actions create a stimulus and context for discussion and resolution.
Enforcement provides the framework in which solutions can be negotiated.  Negotiation can
enhance compliance by sending a signal to the regulated community that, while pursuing
enforcement  response, the government is willing to be responsive to the concerns and difficulties
faced by the regulated community in achieving compliance and to work cooperatively to develop
a satisfactory solution.

       Negotiations will generally be most effective if there remains a real possibility of
litigation.  In some cultures or situations it may be very important to keep this threat real so
that facilities do not use negotiations as a means of delaying compliance.  Program officials can
keep this threat real by maintaining a strict schedule for negotiations and a parallel preparation
for legal action.
                                          7-11
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       The negotiation process will vary from one culture and program to another.  Some
negotiations may be face-to-face between enforcement officials and the violator.  Others may
involve a variety of concerned parties (e.g., representatives of the local community, workers,
nongovernment organizations).  In some negotiations (e.g., an impasse), an experienced third
party may be used to change the dynamics, provide new perspectives, and propose possible
solutions that had not previously been considered. Table 7-3 describes some typical dispute
resolution procedures.

       The result of negotiations is a settlement — a documented official resolution to the
situation, e.g., an "administrative consent order" or a "judicial consent decree" in the United
                                          1                '          I
States. In the U.S. system, negotiation is most often used within the context of legal
enforcement proceedings.  This results in a legally binding agreement between the violator and
the enforcement program or a negotiated agreement that must be submitted to a court for
consideration and final approval.

       Two types of1 enforcement responses are usually not negotiated.  One is a request by
enforcement officials for information from the violator. This is usually not controversial and
therefore does not require negotiation. The other is the exercise by the enforcement program
of emergency powers to protect public health and the environment. In tliis case, there is no
time to negotiate.
       Role of the Public To Ensure Accountability

       In some countries (e.g., the United States), the public has a right to comment on
enforcement agreements, orders, and decrees before they are final. The public may also be
                                          !                !  . ',      i
allowed to gain access to final enforcement actions. Public involvement is one way to ensure
that violators are treated fairly and consistently. Indeed, it is the violators themselves who are
most likely to review other previous enforcement actions that have been taken and attempt to
use them during negotiations as a precedent if they are favorable.
                                           7-12
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CREATIVE SETTLEMENTS:  LEVERAGING ENFORCEMENT FOR BROADER RESULTS

       Agreements can include any provisions that the enforcement program is authorized to
impose on a violator.  Depending on their legal authority, environmental officials may have
some latitude to develop creative approaches to solving environmental problems. Creative
settlements can also be used to leverage a single case to. gain either greater environmental
benefit or greater deterrence than would have occurred with a conventional settlement.
Examples of creative settlements are described below.

       Creative  settlements are often linked to some limited reduction in monetary penalty or
an agreement to extend compliance schedules.  Creative settlements may also be sought for
violators with limited ability to pay or violators that demonstrate a strong level of cooperation
with the  government.  U.S. policy limits the amount of penalty reduction allowed in creative
settlements because of need to maintain some level of penalty to preserve deterrence and
recover the economic benefit of noncompliance.
       Pollution Prevention

       Pollution prevention settlements involve an agreement by the facility to convert to
practices or processes that reduce or eliminate the generation of pollutants and wastes at the
source.  Pollution is prevented when the volume and/or the toxicity of pollutants is reduced. In
manufacturing, for example, pollution prevention includes activities such as substituting
chemicals, reformulating products, modifying processes, improving housekeeping, and recycling
on site.

       Pollution prevention projects may directly correct the violation or may reduce pollution
not connected with the original violation.  Pollution prevention settlements help ensure that
violations will not recur and/or they reduce the total risk that a facility's operation poses  to
public health or the environment.
                                           7-13
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       Pollution Reductions Beyond Compliance

       Settlements can be negotiated in which the violator agrees to reduce pollution further
 than the level required to comply with the requirements. For example, a violator may agree to
 install more effective control technologies that reduce the overall discharge of pollutants.
       Environmental Auditing
                                                           j         i
       Environmental auditing is a periodic, systematic, documented and objective review at a
regulated facility of its compliance status, management systems and/or overall environmental
risk.  Auditing has been encouraged by many nations and by the International Chamber of
                                                           i         i
Commerce as an essential tool for regulated facilities to ensure compliance and to effectively
manage their environmental risks (see Chapter 5).

       Environmental audits have been required in several enforcement actions in the United
States for one of two purposes. First, they have been used where a source shows a clear pattern
of violations that suggests a management problem.  In such cases, a settlement may include  an
agreement that the source pay for an environmental audit to identify and correct the internal
management problems that led to the repeated violations.  Second, if a violation is likely to be
repeated at other operations owned by the same company,  a settlement may include an
agreement (1) that the company or a third-party auditor will audit for that violation at the other
facilities owned by the company,  and (2) that any violations will be reported and corrected.
       Environmental Restoration
                                                           i         |
       Environmental restoration settlements not only repair the damage done to the
environment because of the violation, but also further enhance the environment around the
                                                                    j
facility.  If the environmental damage caused cannot be restored, the settlement may require the
facility to restore a comparable environment in another location.
                                          7-14
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       Publicity

       In public awareness settlements, the violator agrees to undertake some activity to
increase the awareness by the regulated community of the need for compliance and/or ways to
achieve compliance. For example, the violator could sponsor a series of seminars to provide
information to a specific industry group about how to correct violations common to that
industiy.  The violator could also sponsor public announcements on television and radio to
discourage  violations or to describe how new technologies can be used to correct violations.  In
the United States, violators who sponsor public awareness projects must also agree to clearly
state to the public that the project was undertaken as part of the settlement of a lawsuit brought
by the government.
       Training

       Training settlements can be used to correct internal compliance problems within a
company or organization.  Violators that are industry leaders may be required to design and
conduct compliance training for others within the same industry group.
       Escrow or Bond for Sources Unable to Pay Penalties

       This type of settlement is useful for facilities that cannot afford to pay the monetary
penalty normally imposed for the particular type of violation.  In such cases, the facility agrees
to put some money into an escrow or bond account which will be used to fund remediation or
other activities to improve environmental quality.
ENFORCEMENT  RESPONSE POLICIES

       Enforcement response policies describe how various enforcement authorities will be used
to respond to the many different types of violations and violation situations.  Such policies are

                                            7-15
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important to ensure fairness.  Fairness is particularly important
penalties. The perception and fact of fairness is critical to the
program, and also helps otherwise reluctant staff make what are
demonstrate government will and resolve to enforce environmental
when drafting an enforcement policy are discussed below.
       Criteria for Noncompliance
 when assessing monetary
credibility of an enforcement
  often difficult decisions to
    laws. Key issues to consider
       Whether a facility is in compliance is not always obvious. Specific guidelines and criteria
are often needed for determining compliance from noncompliance. These standard criteria help
                                                         i          I
ensure that all members of the regulated community are treated equally and fairly.
SELECTION OF APPROPRIATE ENFORCEMENT RESPONSE
                                                         i
       Selecting an appropriate enforcement response raises several difficult issues, discussed
below, which often need to be addressed in an enforcement response policy.  (These issues may
already have been addressed in the wording of the authorities provided by the environmental
laws.)
       When Should Civil or Criminal Responses Be Used?

       This issue is relevant only to countries that have or are considering implementing both
civil and criminal authorities. In the United States, criminal enforcement actions are generally
reserved for actions that deserve punishment, rather than correction, e.g., where the violation is
intentional and willful.  Criminal actions are also used to ensure the integrity of the regulatory
scheme, e.g., for facilities that operate without a permit or license.  Cases reserved for criminal
enforcement typically include:

       •      Falsifying documents.
                                            7-16
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       •      Operating without a permit.
       •      Tampering with monitoring or control equipment.
       •      Repeated violations.
       •      Intentional and deliberate violations (e.g. decisions to violate based on greed).

       In the Netherlands, both criminal and administrative charges can be brought for
violations of environmental laws. Serious violations are usually met with direct criminal charges.
Many Public Prosecutors believe that criminal charges should be imposed the second time a
company is found to be out of compliance. Adminiftstrative sanctions include shutting down all
or part of a company's operations and fining the company for each day it remains out of
compliance. Criminal sanctions include prison sentences, fines, complete or partial shut down
of operations,  confiscation of property, and publicizing the court's verdict.
       When Should a Sanction Be Imposed?

       For certain types of enforcement response, it may be sufficient to negotiate a compliance
schedule where the violator agrees to return to compliance and/or clean up a pollution situation
by a certain date.  When deterrence is important to a program's compliance strategy, maximum
impact will be gained if each enforcement action is used to send a deterrence message to the
regulated community.  Sanctions help send this message.  However, sanctions may not be
appropriate for violations that are not preventable, or that are too minor to focus government
resources on the legal process that necessary to impose a sanction.  These  considerations need
to balanced in deciding when to impose a sanction.
       Should a First Enforcement Response Include a Sanction?

       There are two basic approaches to this issue. One approach does not seek a sanction for
first violations but imposes a stiff sanction if noncompliance continues. This approach is based
on the belief that every facility should be given at least one opportunity to correct its problems

                                           7-17
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                                                         '   '       I                       !
 before it receives a sanction.  This approach is most successful when violations are easy to
                                                                   I
 detect, and when the enforcement program has an excellent track record of detecting violations,

 diligently following up on violators to verify compliance, and imposing stiff sanctions for

 continued noncompliance.



       The second approach is to impose a sanction for first violations,. This is based on a
                                                         "          i
 belief that lack of a penalty may encourage facilities to postpone compliance activities until the
                                                         i
 violation has been detected.  This approach is essential for violations that are difficult to detect.
       What Type of Sanction Should Be Used?


                                                         i          i                       i
       Depending on the authorities provided in environmental laws (see Table 7-2),

 enforcement officials often have several types of sanctions they may imjpose for violations. The
                                                         i          i
 enforcement policy will need to provide guidance on when these various types of sanctions are
                                         1                i          i  ,                     j
 appropriate.



       Monetary Penalty.  Monetary penalties are the most common szinction used in

 enforcement response.  An enforcement policy will need to provide guidance on how to

 calculate an appropriate penalty for various types of violations.  There are several bases on

 which to calculate an appropriate monetary penalty (see Table 7-4). In reality, monetary

 penalties are often a combination of these factors. Table 7-5 provides one example of a penalty

 calculation using a variety of factors.



       Denial or Revocation of Permits or Licenses.  Program officials can deny an application

 for a permit or license or revoke an existing permit or license.  This would require a facility to
                                                         i   '       I
 cease at least part of its operation or be in clear and direct violation of the law.



       Shutdown of Operations.  Program officials may be able to shut down operations.  The
                                                                   i
threat of a shutdown can be an effective deterrent, particularly in a free market economy  where

shutdowns directly affect profits.
                                           7-18
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                  TABLE 7-4.  FACTORS THAT MAY BE VSE0 TO
                       CALCULATE A MONETARY PENALTY
Gravity of the Actual or Potential Harm to the Environment, andfor Hitman Health.
       Gravity-based penalties are graduated to reflect the seriousness of the violation. This
       sends a deterrence signal to the regulated community: the more serious the violation,
       the greater the penalty will be.  Gravity may be calculated based on factors such asj

              Volume of release.            ,        -    -4  '   -
              Toxicity of release.                       '  -
              History of noneompliance.                 ;; ~ -  ,,,,
              Environmental and/or public health risk or impact;
              Importance to maintaining the integrity of the eufdrcemeiU; program.

Economic Benefit.  Penalties that, at a minimum, recover the economic benefit a violator
       may have gained  by not complying  remove the  economic advantage  for
       noneompliance.  This type of penalty is important to maintain fairness by ensuring
       that facilities that comply are not economically disadvantaged by doing so.  It also
       removes the economic incentive for noneompliance.  At the national level and in
       some states in the United States, enforcement policies require recovery of economic
       benefit                  '      "           "\    * ,

Ability to Pay, Enforcement officials must often consider a violator's ability to pay when
       calculating £ monetary penalty. Penalties 'that are large ^bmpared/to the facility's
       resources could force a facility to shut down.  Bankruptcies can harm the overall
       community. Facilities that are given a severe monetary penalty niay also threaten to
       move to another area where environmental regulation and/or enforcement is more
       lax. In such cases, enforcement officials may want to consider; the deterrence benefits
       of severe penalties against the  cost and hardship that the resulting unemployment
       would cause lit the. local community. Public pressure may have substantial impact on
       the monetary penalty level when jobs are threatened. Asking for substantial penalties
       also raises a risk that violators may choose to contest the penalty in court rather than
       pay it  A series of payments can be arranged in situations where a violator may have
       difficulty paying the  full penalty at one time. Financial penalties are less likely to
       deter public agencies since they are not profitmaking ventures.

Other Factors.  These include:       -       '.                     ' -    <

       •      Degree of cooperation by facility personnel with environmental officials.
       •      Whether'the  Delation was self-reported by the, facility.     -
       »      Degree of remorse by the responsible parties. " --   • "  .
     -* •      The strejngth of the case. A weak case is less likely to withstand appeals on
              the part-of the violator. In such cases, enforcement officials may lower the
              penalty to avoid making »t worthwhile for the violator to try to appeal the
              penalty.  '",,''•
                                     7-19
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              TABLE 7-5. SAMPLE WORKSHEET TO CALCULATE A MONETARY
 Facility Name:
 Money the Facility Saved fay Not Complying v/ith Regulations

         Costs avoided                            ' ' '  '
         Costs postponed
         Total
 Seriousness of the Violation
   Potential for Harm
                       Example

                      : $10.000
                    ,,,,,,,,$,5,000,,.
                    to)  $15,000

High
Medium
Low
Extent of Deviation from Requirement|s)
High
$5,000 to $4,000
$2,199 to $1,600
$599 to $300
Medium
$3,999 to $3,008
$1,59? to $1,009
$299 to $100 ,
Loir
$2,959 to $2,200
$999 to $600
$99to$20
        Penalty required based pn potential for harm and extent of
        deviation from requirement  (use the above matrix and personal
        judgment to determine the appropriate amount):             (
                fbl $5.000
Adjustment for the Duration of the Violation
        Number of days of noncompliance
        Total = [(b) x (20%)} x (c)
(d)
       $30.000
    SUBTOTAL
        Subtotal = (a) + (d)
                M $45.000
Penalty Adjustment Factors2
        1. Degree of cooperation {+/*)
        2. History of compliance {+/•)
        3? SuppJemental environmental projects^ (•+•/-)
        4. AbSitjr to pay (-)
        total = {(J) + (g) + (h) + ft)l x (f)

    TOTAL PENALTY
        Total penalty = (e) +• (j)
ffL
•  '  m.
                   -5%
                m -s
                   ' $6.750
                   $38.250
^Loosely based on a worksheet used for a U.S, environmental program-
Adjustments may range from -20% to -t-20% for factors 1,2, and 3, and l&^i -tOj^to Q% fat factor 4.  Selection
of appropriate  percentages" is based on subjective judgment and should be fair relative to adjustments: made when
calculating penalties for other similar violations.                             ,,'„>,„,..          '    '  '  {
^Supplemental  environmental projects are projects the facility is conducting or will wnduct to beneSt the
environment (see description in this chapter).
                                              7-20
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       Jail Terms. Criminal sanction (e.g., jail terms) for managers or employees of violating
facilities can be an extremely effective deterrent. Criminal sanctions can only be imposed where
allowed by the legal system.  This penalty has substantial public support in the United States.
In the United States, for example, criminal sanctions can be sought if someone willfully
circumvents a requirement or fraudulently reports data. Some criminal  cases can be costly and
involve complex procedures. However, in the United States, their deterrent effect has been so
great that even a  relatively small number of successful cases have caused other companies to
change their management ethics.  Under U.S. Sentencing Guidelines, sentences for
environmental crimes can be reduced if the corporate official can demonstrate a comprehensive
and committed corporate compliance program.  This set of conditions in the United States
seems to be improving corporate concern for compliance.

       Denial of Government Funding. In this penalty, violators are placed on a list of firms
from which government agencies will not purchase goods and  services, or provide loans or
guarantees. The  lists are shared with other government agencies that purchase services  or goods
from industry.  The name is removed once the firm returns to compliance.  In the United
States, this sanction has been very effective in several difficult compliance cases.

       Negative Publicity.  As part of a settlement, violators may be required to publicize
information about the violation. For example, a company may be required to pay for a full-
page advertisement in local or national newspapers to proclaim their guilt.  Company executives
may be ordered to speak in public about their wrongdoing.  In countries with strong public
concern for environmental quality and a free market economy, negative publicity can have
substantial economic implications for a facility.  Negative publicity can also cause a corporation
to lose prestige.  Research indicates that potential loss of prestige can be a powerful deterrent
factor. In the United States, enforcement officials are increasingly using publicity about
violations as  an enforcement tool.

       Other Sanctions. Other possible sanctions are listed in Table 7-1.
                                           7-21
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        What Enforcement Responses Are Appropriate for Government-Owned and/or
        -Operated Facilities?

        Enforcement by one government organization against another government organization
 is usually difficult for many reasons.  For example, monetary penalties for many government
 facilities are paid for out of a central budget.  The loss of this money generally has little impact
 on the individual facility's operation. In government systems, it can be difficult to hold
 managers arid operators of facilities accountable for failing to comply with requirements.  In
 some countries or regions, facilities may be receiving conflicting signals — one government
 organization may require compliance while another may demand high levels of production.  It
 can be politically difficult for one government organization to enforce against  another. Also, in
            ;    "                         '                I         I        '
 many countries government organizations cannot be sued by citizens  or other government
 organizations for failure to comply with environmental requirements.   For all these reasons,
 managers of government facilities  may have little incentive to ensure  that their facilities are in
 compliance with environmental requirements.
                                                          !
                                                          i         I
                                                          ||           :
        The United States has some experience in enforcement against government-owned
 facilities.  With a few exceptions, the U.S. federal government has waived its special immunity
 from prosecution and has given both state governments and citizens the right to take the federal
 government to court if it does not  comply with federal, state, or local  environmental
                                                          !         i
 requirements.  The U.S. Environmental Protection Agency (U.S. EPA — the federal agency
 responsible  for environmental protection) can pursue enforcement against other government
 agencies,  but it generally does not  seek penalties nor does it take civil judicial  action against
 sister agencies.  The U.S. EPA can develop bilateral administrative compliance orders and
 agreements  with other agencies,  and also issues some unilateral administrative orders if these
 orders are not disputed.  The U.S.  EPA can also hold government officials criminally
 responsible for their actions.  To resolve disputes, the U.S. EPA uses  an internal appeals system
within the Executive Branch of the government. The enforcement process is useful to force
agencies to budget for environmental problems. Public pressure has also been a powerful force
to gain federal government compliance.
                                           7-22
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       In the mid-1980s, the U.S. EPA and states also began to aggressively enforce against
municipalities.  Creative solutions were found to enforcement problems, including creative
financing arrangements that enabled municipalities to meet the requirements. The penalties
imposed through enforcement also helped induce some local communities to vote to increase
their taxes in order to raise money to finance pollution control.

       Federal facility operators are criminally liable for environmental crimes,  e.g., improper
disposal of hazardous waste.  In the past several years, the U.S. EPA has been much more
aggressive about enforcing against federal facility operators. These cases have generally
received a great deal of public attention.
                                           7-23
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                     8. CLARIFYING ROLES AND RESPONSIBILITIES
INTRODUCTION


        Enforcement frequently involves many different groups, including government agencies,

citizens groups and nongovernment organizations, and industry associations. A key element in any

strategy is defining the roles and responsibilities of the various groups involved.  This chapter

discusses key issues involved in defining roles and responsibilities:


       •      How should responsibilities for enforcement be divided among the various levels of
              government (national, regional, provincial, and local)?  To what extent should a
              program be centralized (i.e., run at a national government level) versus
              decentralized (i.e.,  run at local government levels)?

       •      Which government agencies will be involved, e.g., environmental agencies, health
              agencies?

       •      Should there be separate enforcement programs for different environmental media
              (e.g., air, water, land) or one or more integrated programs covering several media?

       •      To what extent should a program make use of citizens and other nongovernment
              resources?

       •      To what extent should technical program staff and attorneys be integrated within a
              single organization?
DIVIDING RESPONSIBILITIES AMONG GOVERNMENT LEVELS


       A basic issue in developing enforcement programs is to what extent to centralize
responsibilities for enforcement at the national level or decentralize them at more local levels.

There are advantages and disadvantages to both centralization and decentralization.  A national
presence in enforcement helps ensure that at least minimum standards for environmental

requirements are met; that the program is consistent and iiair throughout the country; and that
national resources  are available to support enforcement programs.  Involvement of provincial and
local governments  in enforcement is important because these levels are closest to the actual

environmental problems and best able to efficiently identify and correct them.
                                             8-1
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        Most environmental enforcement programs in different countries are; decentralized to take
 advantage of (1) local knowledge of facilities and their operations, and (2) the greater resources
 available at the local level.  Despite this bias toward decentralization, some programs are
 centralized because of a clear need for national involvement, e.g., to handle transboundary pollution
 problems, or where local competition to create favorable conditions for industry may lead to lax
                                             ;                j
 enforcement at the local level, or where unique expertise concentrated at the national level is
 needed to implement the program.  For example, control of most air pollution sources is
 decentralized in the United States.  However, enforcement of U.S. environmental requirements
 pertaining to manufacture of automobiles and fuel additives is centralized, a!i are enforcement
 programs concerning the production of toxic chemicals and pesticides in the United States.
        Roles and relationships between the national government and local governments can
                                                             i
 develop in many different ways, ranging from decentralization to centralization to various
 combinations of both approaches.  Table 8-1 shows different approaches used in various countries.
 Two models from  the United States and the Netherlands are presented below. These models
 attempt to combine some of the advantages of both centralization and decentralization.  The
 United States uses a system of parallel responsibility for several of its enforcement programs.
 Under this system, states are given primary responsibility for enforcement, but the national
 government retains parallel authority and responsibility. The Netherlands has developed a system
 where responsibilities are divided among national, regional, and local governments.  Divided or
 decentralized responsibilities require cooperation and communication between government levels.
       The U.S. Experience: Parallel Responsibility with the Primary Role Delegated

       Most environmental programs in the United States establish a relationship between the
national and state governments.  Usually, the national government formally approves the state
environmental program as meeting established standards for implementation. From this point on,
the state program has the primary role for implementing the enforcement program, but the national
government retains parallel authority and responsibility and can intervene if the state program is
not meeting certain criteria. In a few cases, such as the air program, the national government can
directly grant approval to a local government to run a program.  A few U.S. laws do not allow the
                                                              |         i
national government  to delegate responsibility to the states. In these cases, the national
government may develop "cooperative agreements" with states to make state involvement possible.
                                             8-2
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       TABLE 8-1. APPROACHES USED IN DIFFERENT COUNTRIES TO PARTITION
              GOVERNMENT RESPONSIBILITIES FOR ENFORCEMENT1

Canada
Toxic C&einieals/Hazardous Waste
AS Other
Germany
Great Britain
Transbouadary Chemical Waste
Air
Japan
Norway
Poland
Sweden
Hie Netherlands
Huisance Act
Hazardous/Toxic Chemical Wastes
United States
Air Stationary Sources
Automobile Emission and Fuels Standards
Water Discharges
Toxic Chemical Testing/Manufiieture Release
Reports
Pesticides Registration '
Pesticides Use Enforcement/
Certification for Field Applicators
Hazardous Waste Generation/1^e^.traent:/Disposal
Decentral-
ized
X

X


X

X
X
Central-
ized
X

X



-

X
X
!
X
Divided
Responsi-
bilities

-



•"

X
'
Parallel
Responsi-
bilities
-

- -

!


-
X
X
X
text for description of approaches.
                                   8-3
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       The U.S. Environmental Protection Agency (U.S. EPA — the national government agency
responsible for protecting the environment) is authorized by most environmental laws to define
criteria for an acceptable environmental program. These criteria generally cover three areas:  legal
                                                             I          j
authority, resources, and personnel. The U.S. EPA works with states to help them develop
                                                                       i
programs that meet these criteria.  Once a state program meets  these criteria, the U.S. EPA
                                                             !          |
approves the program and state authority to run the program. If a state program has not  been
approved by the time enforcement must begin, the U.S. EPA will run the program from the
national level until the state program is approved.
                                            i •                .          j
       Typically under this system, states are responsible for monitoring environmental quality and
compliance, developing compliance strategies, targeting and performing inspections, enforcing
against violators, and verifying the  quality of monitoring and compliance data. As of 1991,
    •                                        i                           !
approximately 70-90%  of day-to-day inspections and 70% of formal enforcement actions were
performed by states.
                                                             i          !
       Even though states have primary responsibility for running approved programs,  the U.S.
                                            i                           i
EPA always remains responsible for meeting national environmental standards and for ensuring that
                                            '                           I             •
national laws are being enforced.  To meet this responsibility, the U.S.  EPA oversees the states'
performance  and may take direct enforcement action under certain circumstances.  This can be a
sensitive  area if the U.S. EPA intervenes in situations where a state believes it is doing a good job.

                                                             !
       The U.S. EPA provides states with funding for staff and  equipment through an  annual  grant
process.  The U.S. EPA sets national program priorities annually in consultation with the states and
then works with states to develop state/U.S. EPA agreements that specify enforcement priorities
that include national, regional, and state priorities.
       Advantages

       This system of parallel responsibility with the primary role delegated has several advantages:
                                             8-4
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               Program Quality.  The system maintains a continuous national presence.  This helps
               ensure that certain minimum program standards are met across the country
               regardless of the resources and capabilities of the individual states.

               Technical Capabilities.  Because it is a national government agency, the U.S. EPA
               can often provide states with technical  capabilities that are not available at the state
               level.

               National Consistency.  Involvement at the national level helps ensure that
               enforcement is practiced fairly and consistently across the nation.

               Deterrence.  Knowledge that the national government can and does become
               involved in certain enforcement actions helps contribute to deterrence.

               Fostering Competition.  The national government routinely monitors and reports on
               progress and success in individual states.  Results in individual states can  easily be
               compared.  This has resulted in a healthy sense of competition among some states
               that has improved program success.

               Improved Program Effectiveness. Those closest to a problem are most likely to spot
               the problem and correct it in a timely manner.  Shifting the primary responsibility
               for compliance monitoring and enforcement from the national to a more  local level
               helps improve program effectiveness.

               Sharing the Financial Burden. Delegating to state and local governments also
               relieves the national government of substantial financial burden for enforcement
               programs.
       Disadvantages
              Parallel authority may lead to duplication of effort and confusion of roles.
       Clarifying Roles and Responsibilities


       In the United States, implementing this partnership to most effectively use the limited
resources of each government level has been a continual challenge. The U.S. EPA has interpreted
the partnership differently at different times, and consequently varied its level of involvement. To

stabilize the partnership, a special steering committee of about 30 federal and state representatives

was established in 1984 to establish a policy for implementing joint state/national programs.  The
                                             8-5
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policy aims to create a state/national relationship that can ensure firm, fair, and effective
                                            i          .•'•!,•
enforcement that makes efficient use of scarce state and national resources. This policy clarified
                 •!          .             •   I              •   !  .       j
the U.S. EPA's role in overseeing state programs and in taking direct enforcement actions. The
policy is implemented through annual agreements.  Progress is reviewed regularly by the steering
committee.
                                                             i         i
       Oversight Role. The U.S. EPA now has clear criteria for evaluating performance of its own
and state programs.  Most programs must:

       •       Clearly identify the regulated community and establish priorities for enforcement.
       •       Have clear enforceable requirements.
       »       Monitor compliance accurately and reliably.
                 '!                          i                 I         i
       •       Maintain high or improving rates of compliance.
       •       Respond in a timely and appropriate way to violations.
             ;    ;:'                          i                 !
       »       Use penalties and other sanctions appropriately to create deterrence.
                 .,.                      'I          "'       !         !
       »       Maintain accurate  records and provide accurate reports.
             •,                              •                 ii
       •       Have sound overall program management.
                                            !                 i  •       i
                                                             i
       The U.S. EPA reviews state performance on a regular basis. It uses these criteria to
identify areas at the state or local level where programs are not performing adequately. Program
evaluation takes into account specific conditions in each state.  The policy framework suggests
action the U.S. EPA can take to improve performance. These actions  include information
exchange,  technical assistance, and additional  grant funds. In rare instances, state program
approval may be withdrawn or the U.S. EPA may take direct federal enforcement action, as
                                                             i   ,      I
described below, where the state response has not been adequate. The U.S., EPA also identifies
              •   '!'                          i                 I         I
and publicizes information about successful state programs so that other state  programs can learn
from their approach.
                                             8-6
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       Direct Federal Enforcement. The U.S. EPA has established clear criteria for when and how
it will become directly involved in enforcement. The U.S. EPA will consider becoming involved
only if at least one of these conditions applies:

       •      A state requests U.S. EPA involvement
       •      The state action is not timely and appropriate.
       B      The case would set a national legal or program precedent.
       •      A U.S. EPA or federal court order has been violated.

If one of those four conditions does apply, the U.S. EPA may consider these additional factors
when deciding whether or not to become involved:

       »      The case is nationally significant (e.g., involves a significant noncomplier, or affects
              national priorities).
       •      The violation  significantly threatens public health or environmental quality.
       •      The violator is gaining significant economic  benefit.
       •      The case affects other states.
       •      The case involves a repeat violator.
       •      State authority is inadequate.

       The policy dictates that if the U.S. EPA doe^ become involved, it should do so with
maximum respect for the state program and its public image.  For example, the U.S. EPA usually
provides advance notice and consults with the state before it takes any action.  Consultation allows
the two levels of government to determine how the U.S. EPA can best complement state activities.
The U.S. EPA may offer to take joint action with the state, use state data and witnesses, involve the
states in developing and/or settling the case, issue joint press releases, share credit with the state,
continually inform states about what actions are being taken and why, and occasionally consider
withdrawing if state action seems sufficient to achieve the enforcement goal.                     /
                                              8-7
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        The biggest area of conflict remains differing state and U.S. EPA views on the schedule and
 severity of response actions. Historically, states have preferred informal responses because of their
 Ipwer cost and have been reluctant to impose significant monetary penalties.  Recently, however,
             '.       '                        i                 |   ,       |
 this gap has been closing.  The U.S. EPA encourages, and is actively considering requiring, states to
                  :'                          !  '        *••'      I  < "    '  |
 impose monetary penalties that at least recover the benefit of noncompliance.

        Whether the U.S. EPA actually becomes involved depends, in part, on whether the state is
 taking sufficient enforcement action on its own.  EPA's willingness to use its own authority for
 direct enforcement is perhaps the most important leverage it has with state programs.
 The Netherlands' Experience:  Divided Responsibilities

        In the Netherlands, environmental quality is regulated primarily through a licensing system
 authorized under various environmental laws.  Responsibilities for licensing and enforcement are
 divided among the three levels of government:  national (or central), provincial, and municipal.
 The national government is responsible for nuclear power stations and processors of chemical
 waste. Provinces are responsible for licensing large industries such as chemical and power plants
 that are major pollution sources. The remaining regulated firms, which comprise the vast majority
 of the regulated community, are the responsibility of the approximately 650 municipalities in  the
                                                             :          I
 Netherlands.
                                                             i          i

       Until recently, the municipalities were required to  issue so many licenses relative to their
 resources that they fell far  behind in licensing and even further behind in compliance monitoring.
 In the past few years, these three levels of government have worked cooperatively to review their
                                            i                 i    •      '
 enforcement programs and design and implement changes to improve their effectiveness.  The
 national government provided several "start-up" resources,  in the form of funding, training, and
 specialized expertise, to help provinces and municipalities design more effective programs.  The
 three government levels also clarified their roles and responsibilities, and developed ways to
 encourage cooperation and sharing of resources among municipalities. The ultimate goal is to
 transfer as much of the implementation responsibility as possible to the inteirmunicipal associations.
This partnership model is relatively new (as of 1990) and will continue to be developed over time.
                                             8-8
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       The Public Nuisance Act

       The Public Nuisance Act, originally passed in 1875, required municipalities to license almost
any activity (e.g., a fire hydrant booster) that could have an environmental impact. The licensing
burden was so great that municipalities were unable to meet it.  A 1977 survey showed that over
two-thirds of regulated firms did not have the necessary licenses, and that municipalities generally
conducted inspections only when they had received a serious complaint from the public.
Consequently,  many forms of pollution went undetected. To solve this problem, the Netherlands
amended the Act to reduce the administrative burden to municipalities. Now, simpler operations,
such as bakeries, garages, and dry cleaning establishments,  are governed by general regulations at
the central level.  These operations need only notify the municipal authority before beginning an
activity governed by the regulations.

       To encourage enforcement, the central government provided funds in the early 1980s to
municipalities  to develop an environmental compliance strategy, which was called a "Public
Nuisance Act  Implementation Plan." Municipalities receiving  funding were asked to identify the
                  l
regulated communities, develop priorities for licensing, and determine the organizational changes
necessary to ensure that the municipality could achieve an  acceptable level of compliance. About
90% of the municipalities established a program, although  some did not implement it.
       Chemical Waste Act

       The Chemical Waste Act requires firms that generate chemical wastes to surrender their
wastes to collectors and processors licensed by the national authorities.  In the early 1980s, there
were major compliance problems.  Many waste generators avoided compliance by mixing chemical
waste with nontoxic waste, discharging chemical waste down sewers, or simply discharging it onto
the ground.

       In 1984, the central government launched a stricter enforcement program by enlisting the
support of municipalities.  The national  authorities retained responsibility for monitoring the
activities of the collecting and processing firms.  Municipalities became  responsible for monitoring
compliance of the more than 200,000 firms in the Netherlands that generate chemical waste. The
                                              8-9
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 central authorities provided substantial support to municipalities to develop an effective
 enforcement program. They financed inspection projects at the municipal level.  Municipalities
 were encouraged to cooperate with one another when conducting inspections.  The central
 <            V   .:'!     •      ,               |           ,   ,) •  ! T i 	    j      .   ' .• •
 government also  developed a program to train municipal inspectors in enforcement of criminal law,
            • 1               '  '            . |      H           I '         I .  '             " i
 report writing, and social skills. Inspections were performed on a sector-by-sector basis, so that all
 firms of a particular type within a particular area were checked  during each round of inspection.
 The central government also developed  educational materials about the rejjulatory requirements
 that were distributed to the regulated community during the inspections.  Some 80% of regulated
 firms were found to be unaware of their legal responsibilities.
        Involving the Local Police
       The national authorities debated whether to set up a separate environmental police force.
They decided instead to enlist the support of the local police who patrol the local environment 24
hours a day and are well-versed in criminal enforcement.  With national funds, the local police have
been trained in environmental enforcement, and provided with sampling equipment, with the
technical support of environmental specialists, and with subsidies to perform inspections.  They
work in close cooperation with the local environmental authorities, and have formed special regions
that have expertise in environmental crime.  This has resulted in a substantial increase in
environmental prosecutions. As of 1990, this new role for the police is still evolving.
       Encouraging Cooperation

       To evaluate the effectiveness of the new chemical waste enforcement program, the central
government sponsored workshops in five parts of the Netherlands. These workshops brought
together the many different types of individuals involved hi environmental programs:  administrators
of municipalities and provinces, police administrators, public prosecutors, public health officials, and
civil servants.  The purpose of the workshops was to exchange experience, discuss strategies,  and
identify problems.
                                             8-10
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       The most serious problem identified was the lack of financial resources needed to maintain
a sufficient permanent staff. In the Netherlands, the municipal environmental programs are funded
by the national government. An independent study confirmed that municipal environmental
budgets were deficient.  To solve this problem, the central government increased the funds for
municipal environmental programs, and worked with the Union of Netherlands Municipalities to
encourage intermunicipal cooperation so that these resources can be shared to achieve high
compliance levels.

       Municipalities are now directly accountable to the municipal councils and the Inspectorate
for Environmental Protection.  All municipalities with fewer than 70,000 residents must cooperate if
they want to receive increased financing.  Larger municipalities are free to use the funding to
improve their own programs, but receive an additional 25% if they cooperate with other
municipalities.  When applying for the subsidy, municipalities must demonstrate how they will
achieve the required licensing and enforcement standards by 1995.  Municipalities must submit an
annual report to the municipal council on the progress and status of the enforcement program. The
Regional  Inspector for Environmental Protection, an official of the central government, must
comment  on the subsidy application and the draft annual report.
        Clarifying Roles

        Under the new enforcement program, the central government remains responsible for
 setting priorities in consultation with the provincial and municipal levels.  These priorities influence
 program planning at the provincial and municipal levels.  Each municipality retains administrative
 responsibility for any corrective action taken against violators.  Municipal officials involved in the
 program (alderman, public prosecutor, police administrator, and administrators of the water control
 and purification boards, etc.) are required to meet periodically to set priorities, develop plans, share
 experience, and monitor various activities.
                                              8-11
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        Industry Support



        The Netherlands is also trying to enlist the support of industry by promoting environmental
                                            :                I   '  •     i  •
auditing (see Chapter 5).  The central government is implementing pilot projects to introduce the
                                            !                ,   " '      i ' !
concept and exploring the idea of providing environmental advisors that will assist firms in setting
             . ,   "  '                       '!                i   :     '  i
up their own self-care systems.  It is encouraging industry to form regional agencies that could

provide auditing assistance upon request. The government is working to create a new professional
                                            i                i  ;       i
ethic in industry: that violating environmental regulations is inconsistent with the professional code

of conduct that well-managed firms are expected to obey.
ROLE OF OTHER GOVERNMENT INSTITUTIONS



       Several government institutions can have significant impact on the design and operation of

enforcement programs.  Most significant are the legislative (lawmaking), executive (management

and budget), and judicial (legal) institutions,  as well as any agencies that have programs in areas

related to the environment.  The particular institutions and the nature of their impact will depend
                                                            :
on the governmental infrastructure of each country.  Institutions with an impact will be those that:
                                                            i          i

                                                            '
       •      Identify the need for legislation.
                                                            i

       •      Create environmental laws.


       •      Determine budgets.


       •      Track program progress and success.


       »      Bring legal action.


       •      Oversee activities related to environmental management.


       •      Identify violators of the laws.
                                            8-12
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       Legislative Institutions

       The legislative institutions probably have the greatest impact on program development.
They create the laws that define the environmental goals to be met, the authority and flexibility to
meet those goals, and the level of funding.  Legislative institutions can become involved in policy
and implementation decisions by issuing amendments to laws that impose certain duties on the
executive institutions. The legislative institution can impose deadlines that executive institution
must meet.
       Executive Institutions

       The executive institutions are often responsible for identifying the need for legislation and
for enforcing the legislation once it has been enacted.  The executive institution is usually the
environmental agency of the country or region. This agency may have its own administrative law
judges.  They provide an internal mechanism for enforcing administrative orders and appealing
agency actions.

       An executive institution may also supply the lawyers responsible for taking legal action
against violators. If this institution is not the environmental agency itself, an interagency agreement
can be important to define the conditions for services between the two executive institutions.  U.S.
programs often experienced difficulty in getting sufficient attorney time and cooperation to
prosecute good cases.  These difficulties were largely overcome by involving attorneys  early in the
development of compliance strategies and by planning for individual cases.
       Judicial Institutions
       In some countries (e.g., the United States) judicial institutions are responsible for
interpreting the laws. They may also impose requirements on the executive institution,  for example,
by requiring that it use certain rulemaking procedures if it wants those rules to be upheld in court.
Courts may provide a forum for taking enforcement action, for prosecution,  and for enforcing
                                             8-13
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 administrative orders (if the court is so authorized). Courts can also play a significant role in
 assessing sanctions.
        Agencies with Jurisdiction in Areas Related to Environmental Management
                                             1                 !          !
                                               . ,,i'              :
        Many government agencies may have authority in areas that affect or will be affected by
 environmental management. These include:
               '                                               II
                                             :                 j  .        j

        •      Health-related agencies responsible for food safety, occupational health and safety,
               consumer products, pesticide use, etc.
                   ,:                          '                 '          '
        •      Natural resource management agencies, responsible for water, energy, minerals,
               forests, etc.  Development of these resources can significantly effect pollution
               abatement.

        •      Land use planning agencies, responsible for community development, industrial
               siting, transportation, etc.

        •      Agencies that regulate industry and commerce.
                   „"                                           !          !
        "      Agricultural  agencies.

        «      Criminal investigation and enforcement agencies.

        *      Cus^oms-  (For example, in the Netherlands, the Customs Department is helping the
               Environmental Inspectorate by watching for and taking samples from imported
               materials that may violate a Dutch law prohibiting use of cadmium as a pigment or
               stabilizing agent in plastic. Further investigation is carried out by the Inspectorate.)
               Similarly, in the United States, agreements between the U.S. EPA and the U.S.
               Customs Service enhance enforcement of import and export requirements.
                                                              I  '        i
        Competition or conflict between two government agencies because of overlapping
authorities can dilute the impact of both programs. Conversely, constructive cooperation can

strengthen both programs through increased efficiency and by identifying gaps in regulatory
programs.  Approaches to achieving integration among related agencies include:


       •       Integrating the responsible departments into one unit.
                                            8-14
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              Developing interagency agreements and memorandums of understanding that
              establish clear mechanisms and procedures for handling areas of overlapping
              authority and/or mutual interest.
              Ad hoc joint efforts such as joint research programs.
              Formal review of each agency's proposals by the other.
              Review of proposals by reference.
              Establishing special councils that are independent of each agency.
              Establish an independent government entity or commission.
       Police
       Local police and other government personnel involved in identifying and apprehending
criminals can be a valuable resource for detecting violations of environmental laws.  In the
Netherlands, the local police are serving as the inspection and enforcement arm of enforcement
programs. To serve in this role, the police must be appropriately trained, provided with  the
necessary sampling equipment, and have the technical support of environmental specialists as
needed.  The Netherlands has set up regional police centers that specialize in environmental crime,
and has provided subsidies to the police for inspection projects.  The police are responsible for
surveillance and, in the case of simple environmental crimes, investigation. They also play an
important role in containing and fighting more serious environmental crimes, including organized
environmental crime.  Use of local police as inspectors hais been very successful: the number of
prosecutions has increased substantially in recent years,  and the public image of the police has
substantially improved.

       In the United States, the Federal  Bureau of Investigation (FBI), a national government
agency for criminal investigation and enforcement, assists the U.S. Environmental Protection
Agency in investigating and apprehending environmental criminals. The FBI and the U.S. EPA
also provide joint training programs.
                                             8-15
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 ROLE OF NONGOVERNMENT GROUPS

        Several private organizations can have a critical influence on program success and efficiency.
 As described in Chapter 7, these groups may directly or indirectly influence enforcement.  These
                                                              i
 groups can be valuable allies in efforts to improve environmental quality. Government enforcement
 programs will benefit by working with these groups wherever possible and appropriate.
        Industry Associations

        Industry or trade associations track and publicize developments that may affect their
                                             ,
 members.  They may try to influence environmental legislation or programs as they are being
 developed. They may also serve as valuable channels for disseminating information on
                                             i                   «?
 requirements, methods of complying, and compliance activities.  Their dissemination channels
 include newsletters, journals, databases, and conferences. Associations of firms that make pollution
 monitoring equipment or control devices have strong economic incentives to disseminate
 information about environmental requirements.
       Associations of Government Officials

       These associations are nongovernment entities that provide a forum for government officials
(e.g., mayors, governors) to work together in solving issues of mutual concern.  Like industry
                   «!            •              !                 !                       • •
associations, these groups track and publicize developments that may affect their members. These
associations provide a resource for disseminating information and a forum for comment and
                   i-                          i                   ,  .     j
recommendations concerning environmental management programs.
       Professional and Technical Societies
       Specialized professionals advise both government officials and the regulated communities on
compliance issues.  Their societies therefore have a strong incentive to track and disseminate
                   (                    ,      !                I                  ''
information on regulatory developments. They may also try to influence regulatory decisions and
                                            8-16
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compliance strategies they disagree with.  In the United States, some of these societies
independently develop industry standards.  Sometimes, the U.S. EPA has adopted their standards
into compliance strategies.
       Trade Unions and Workers' Councils

       Enforcement programs can have substantial impact on workers.  For example, workers are
generally members of the local community and would benefit by the improved environmental
quality that may result  from enforcement actions.  Conversely, enforcement actions that result in
substantial process changes or shut down of an operation may result in some unemployment.
Consequently, workers  will have strong feelings and opinions in some enforcement situations.  Most
countries have associations or groups that represent the interests of workers.  The participation of
Workers' Councils or other groups that represent workers at a particular facility will be important
to success of enforcement actions at that facility. Trade unions or other organizations that
represent workers ajt a  regional or national level may become involved hi development of
requirements and policy for enforcement. Individual workers may also report violations by their
facilities to authorities.
       Universities

       Some universities are important centers for environmental professionals and may function
much like the professional societies described above in supporting and influencing enforcement
programs.
       Insurance Companies

       In many countries, private citizens can sue industry for personal injury or property damage
caused by certain types of environmentally related activities.  In theory, insurance companies that
end up paying the cost of the suit should have an incentive to educate  their clients about
                                             8-17
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 environmental requirements and assist them in compliance.  These companies are therefore a
 potential ally for government agencies running enforcement programs.
        Public Interest Groups
                   1                          !                 !          I
                                             :                 i
        Citizens can play a major role in shaping and implementing environmental enforcement
 programs.  With a stake in environmental quality, citizens may seek to influence environmental
                                                              ;
 legjslation  and enforcement programs through lobbying efforts.  Usually these efforts are
                                    ,1                 !          j
 coordinated by public interest groups. These groups may collect and publicize data on
                                             I                 !          '
 environmental quality and compliance levels in an effort to influence program priorities. If
   '•,'•'.                          I                 II
 monitoring data collected by the program are made publicly available, these groups may track the
                                                              I          i
 data and, if the  law allows, file citizen suits against the environmental agency for not doing its job,
 and/or against individual violators for violating the law.

        Public interest groups also play an important role in disseminating information to regulated
 communities and to citizens who are concerned about environmental  quality.  Citizens may also
 play an important role as  environmental watchdogs,  spotting violations occurring on a local level
                                                                        I
 that may escape notice by enforcement officials.  Public interest groups can be an important means
 of enlisting citizen involvement.
       Use of Independent Contractors to Supplement Government Personnel

       Private firms may be able to provide more faster and cost-effective services than government
agencies.  Enforcement officials may therefore contract some of their responsibilities to private
firms.  One issue in using contractors is ensuring the quality of their work (see Chapter 10).
                                                              i   •       i
       Private companies have proven to be a valuable resource  for inspection in the Netherlands
                   !ll                          I                 i          i
during personnel shortages and work backlogs.  Clear agreements are made about how the activities
are to be carried out and how violations will be reported and responded to. .Any official action in
response to a violation is taken by authorized government inspectors. This combined public/private
approach has often been effective, and efficient, and can produce faster results than a solely public

                                             8-18
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approach.  Dutch government officials have been careful to provide adequate, competent leadership
and to clearly define the "private" inspectors' authority.  This approach is also used in many U.S.
programs.
       Special Centers

       National and regional enforcement programs may find it beneficial to establish regional
centers that offer specialized services such as training and technical assistance to provincial or local
programs.  These centers can serve as a repository for specialized resources that might otherwise be
unavailable to or unaffordable by more local programs.  Such centers can also serve as a forum for
exchange of information and ideas about effective programs, and can enhance cooperation and
communication among different programs. The United States, for example, has established a
National Enforcement Investigations Center (NEIC) in Denver, Colorado, that serves as a technical
resource and investigative unit for developing legal cases against violators. It maintains a staff of
trained investigators that are available to participate in enforcement actions anywhere in the
country.  These investigators are skilled in a broad range of technical areas, such as groundwater
monitoring and hazardous waste sampling.
                                             8-19
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       9.  EVALUATING PROGRAM SUCCESS AND ESTABLISHING ACCOUNTABILITY
INTRODUCTION


       Information can be a powerful and vital tool for successfully implementing an enforcement

program.  Information about program activities and results can ensure that individuals responsible

for pursuing enforcement are, in fact, doing so consistently and fairly using established procedures

and strategies.  Information can help managers adjust enforcement programs to changing conditions

and lessons learned as the program is implemented. Periodic program evaluations to gather

information about program activities and results serve many purposes:


       •       Evaluating Program Strategy.  Evaluation helps program managers determine
               whether the strategies they are using to  achieve compliance are working.  Results of
               evaluations are used as a basis for identifying problem areas and making changes to
               improve effectiveness.

       »       Internal Accountability. Periodic evaluations of success provide a basis for
               establishing a system to hold program personnel accountable for the implementation
               and effectiveness of the program.  Establishing an accountability system involves
               defining performance goals and/or measures, obtaining commitments from program
               personnel to achieve those goals/measures, and evaluating their performance against
               those goals/measures.  Where  necessary, action is taken to improve performance.
               Accountability is valuable to ensure the  quality of the program at  all levels,  from
               entry-level personnel to senior management

       •       Creating Deterrence.  Periodic reporting of program activities and successes to the
               regulated community contributes to deterrence by raising awareness that there is a
               good chance violations will be identified and responded to.  Such reporting will be
               effective only if the program has been active and successful.

       •       Public Accountability.  In some countries, enforcement programs may be required
               by law to report their progress and achievements to the public. Program evaluation
               provides the basis for public accountability.  This accountability can be an important
               force in shaping program strategies and  priorities.  The U.S. enforcement program,
               for example,  is continually scrutinized by the members of the U.S. Congress, who
               were elected by the public. Members of (Congress may request hearings and reports
               to learn about program activities.  Members of the public may contact their
               Congressional representatives at any time to express satisfaction or dissatisfaction
               with a program.


This chapter discusses issues in  and approaches to evaluating program success.

                                             9-1
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ISSUES IN MEASURING SUCCESS

       Measuring the success of a enforcement program is not easy.  In the United States, there is
a continuing debate about how success should be measured.  Many parameters can be used to
evaluate program effectiveness.  Some measure results, such as improvement in environmental
quality and rates of compliance.  Some measure activity levels such as inspections and enforcement
actions that contribute to deterrence. Others provide qualitative assessments of program
performance and direction. Program measures include (see also Figure 9-1):
            • •    ''                         '          'I
       •      Environmental results.
                 ;,<:                         '                 i         I
       •      Compliance rates.
       •      Progress in returning significant violators to compliance.
       •      Measures of compliance monitoring.
       •      Number of enforcement responses.
                                                           I  :
                                                           !
       "      Timeliness of enforcement responses.
       •      Monetary penalties assessed.
       •      Measures of technical assistance.
                                          1
                                                               •     i
       Each of these measures (discussed below) has advantages and disadvantages.  Several
measures must be used to gain a meaningful assessment of program effectiveness. Key questions to
ask when considering which measures to use include:

       »      How accurate is the measure?
       •      What resources are needed to obtain the necessary data?
       •      How frequently should data be collected?
       •      Who will collect the data?
       •      How should the data be  reported, and to whom?
       «      Who will analyze the data?  What will they analyze for?
                                            9-2
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     Enfprcenrfent
       Response
Measures of Success

   S Environmental Results
   / Compliance Rates
   S Progress in Returning Significant
    Violators to Compliance
   / Measures of Compliance Monitoring
   /Number of Enforcement Actions
   /" Timeliness of Enforcement Responses
   S Monetary Penalties Assessed
         Measures of Success
            Environmental Results
            Compliance Rates
            Measures of Technical Assistance
                 Compliance
                 Promotion
Figure 9-1. Measures of Success in Compliance Promotion and Enforcement Response
                                 9-3
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        •      Where will the data be stored?


        •      Will the data be computerized?



        Collecting and processing reliable information on compliance and enforcement can be a
           :•,  •,  ••  .                .        'i           i      I   ,,,'	  I
 constant challenge.  For example, all personnel involved in gathering or analyzing data need to

 clearly understand exactly what data should be reported.  Problems can arise if different individuals
:         •  , - j ,   HI      '••  	           .  ,              ' " .  I  "*'   , :   -I
 within a program have different interpretations of what data are needed.

             1
                                                             1
        Another  challenge is that different levels of an enforcement program may have different
                 ,i                          I                 I  'M ' '!!' •    i                        '
 data needs.  Local personnel, for example, may prefer to focus their resources on data they consider

 valuable for evaluating program performance. Program personnel at a national level may have
            ! il  .  „                          I                 I   , • •, •    i  .
 different priorities. National data systems will benefit if they are designed, from the bottom up.

 Since local personnel collect the data, they will have a greater incentive to gather accurate data if

 they believe the data will be useful to  them.



       Mechanisms will be needed to gather and store the data, and to transfer it at appropriate

intervals to other program levels that will analyze the data. A schedule for issuing reports of the

analysis will also  be needed.  Policymakers may also wish to conduct special  studies to analyze

program strategy and success, and recommend improvements. These studies could examine issues

such as:
               The effectiveness of various program policies, e.g., which promotional vehicles were
               successful in reaching the regulated community, the policy for identifying and
               screening violators.

               The effectiveness of various enforcement techniques.
                                           i                 i          i
Such analysis would be useful when reviewing and refining program priorities and strategies.
                                             9-4
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MEASURES OF SUCCESS

       Success can be measured in two basic ways. One way involves setting goals or targets (for
example: a certain number of inspections should be conducted each year), and then comparing
actual activity to the goal. The second way involves tracking results, i.e., looking for trends and
changes in activities or results over time (for example, a finding that 25% more inspections were
conducted this year than last year may indicate an improvement in this activity). Tracking can
either be routine (e.g., annually) or periodic. Tracking can be applied to any of the success
measures described below. The goal-setting approach works only when realistic  goals can be set;
this is possible and appropriate for only some of these measures, as described below.
       Environmental Results

       Improved environmental quality is the ultimate goal of any environmental program and
therefore is the most desirable measure of success.  The types of environmental results that can be
measured include overall environmental quality, reduction in pollutant releases, and risk reduction.
Unfortunately, these measures have several shortcomings:
              There can be a significant lag time between the compliance promotion and/or
              enforcement response activity and the resulting improvement in environmental
              quality.
              It is hard to link changes in environmental quality to specific sources or specific
              compliance actions.
              Other factors, such as changing weather patterns or economic conditions, may affect
              environmental quality and therefore the accuracy of this measure.
              Compliance with some environmental requirements does not result in measurable
              improvements in environmental quality.
                                            9-5
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        Compliance Rates


        Compliance rates are one of the best overall measures of enforcement success. High
compliance rates are the ultimate goal of most U.S. programs. Nevertheless, this measure also has
shortcomings:
              Compliance rates rely on the thoroughness and frequency of inspections and/or on
              the accuracy of self-reported data.  Compliance rates will riot be reliable if these
              data are not thorough or accurate enough.

              A lower compliance rate may mean that the program is doing a good job of
              detecting violations, that the program is using stringent standards for compliance,
              arid/or that the regulatory requirements are stringent.
                                                          1          l
                                                                    I
              A high compliance rate can be misleading if the most significant pollution sources
              remain out of compliance, or if sources in compliance fail to stay in compliance.
       Because of these shortcomings, U.S. programs find it difficult to hold managers accountable
            :,    ;•                          l         .       j   ;..       "|                .  .
for improvements in compliance rates. U.S. programs do, however, use compliance rates to suggest

specific areas requiring management attention.

                                                                    l
            ii •''    "i'i!                          :                i          I
       If compliance rates are used as a measure of success, policymakers will need to agree on
            i1 ::    [                          !         'I
what constitutes compliance. For example:
              Does compliance mean achieving the required emission levels or meeting a schedule
              for compliance set forth in an enforcement agreement?

              Should the compliance rate cover any and all requirements, no matter how minor,
              or just the most significant requirements?

              How should repeat violations be reported?  For example, how should sources be
              reported that are in compliance during the reporting period, but which are known to
              regularly go in and out of compliance?

              What influence should the percentage of sources of unknown status have on the
              evaluation of compliance rates?  For example, if a particular compliance rate is
              shown for 10% of facilities for which data exist, what assumptions are made about
              the other 90%?

              What data gathering is needed to ensure that facilities that are in compliance
              continue to stay in compliance?
                                            9-6
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       Progress in Returning Significant Violators to Compliance

       Significant violators are those violators that have the greatest impact on environmental
quality.  Bringing them into compliance will therefore have the greatest immediate impact on
environmental quality.  It may also have an important deterrent effect, since significant violators are
often relatively large and well known sources within the regulated communities. This indicator is
appropriate for both tracking and goal-setting. It is important to remember that this indicator  does
not provide any measure of success achieved in that portion of the regulated community that are
not defined as "significant violators."

       The U.S. has used this measure since the late 1970s.  It is one of that country's most
successful management tools. At first, the U.S. program officials identified the most significant
pollution sources throughout the nation and proceeded to  take action against them.  This effort
brought many large industries into compliance. However,  enforcement activity declined rapidly
when this initial list was exhausted.

       In 1985, the U.S. adopted a new system that does not single out particular industries.
Policymakers developed national criteria for what constitutes a significant violator. They also
defined what actions should be taken  for particular  types of violations.  Program officials must
identify significant violators  in their jurisdiction, and make commitments to taking specific actions
against a certain number of significant violators every 3 months.  Sources are tracked until full
compliance is achieved. Records are kept of the number of significant violators identified, the
number and type of actions  taken, and the results of those actions.  Performance is evaluated based
on how closely these goals are met. The lists of significant violators are made publicly available.

       This approach has several advantages:

        •      It tracks not only actions taken, but results achieved. Actions and results can be
               easily associated.
        •      The system encourages actions that  will have significant environmental benefits.
        •      Enforcement program managers can analyze the data for patterns of compliance
               across industry, companies, and environmental media.
        •      Publicizing the lists of significant violators  may encourage other sources to achieve
               and maintain compliance.
                                              9-7
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                                                                                            i!""'": ( !!i||!!j!  '1""
         Measures of Compliance Monitoring

         Another measure of success, appropriate for both tracking and goal-setting, is how well an
 enforcement program monitors compliance.  Several measures can track progress in this area:

         •      The number of inspections.
         •      The quality of inspections.
         •      The appropriateness of the targets of inspection.
         "      The quantity of self-reported data received.
             ,,   ,                           i              ,i
         •      The quality of self-reported data received.

 The number of inspections  is probably the easiest of these indicators to  track.  This indicator
 provides a qualitative measure of program success in creating an enforcement presence.
        The United States uses these indicators in its enforcement programs.  Program officials set
 goals for and report on the number of inspections.  Policymakers develop national criteria for
                                            '.                !          I
 effective inspection strategies, and program officials evaluate the strategies against these criteria.
 The United States  also conducts oversight inspections to assess the quality of program inspections.
 Oversight inspections are conducted by program inspectors or consultants either separately or
 simultaneously with local inspectors.

        One issue in measuring compliance monitoring is that well-targeted, high quality inspections
 will probably increase the number of violations detected and thus lower the compliance rate.
       Number of Enforcement Responses
                  '"              '                               •       !
       Legal action is the ultimate weapon in the arsenal of environmental enforcement tools.
            11.   ',!',ii'j'                       • •  !         '! •'    „   |   : • 11  •  |       •      • 'j
Measures of enforcement responses may therefore be of particular interest to members of the
public and nongovernment organizations that are concerned about environmental quality. In the
United States, for example, this measure is viewed by the public and by the U.S. lawmakers as an
indication of program managers' commitment to gain compliance, and it is  therefore closely
tracked.
                                             9-8
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       Despite its potential importance in public relations, this indicator has important
disadvantages:

       •      The fact that an enforcement action has been initiated does not mean that
              compliance will be achieved in a timely and effective manner. The litigation process
              can result in lengthy delayed compliance schedules.
       •      Legal action is the most costly enforcement response.  An emphasis on legal action
              may divert attention and resources from other important program activities essential
              to program success.  This may be a particular concern if the regulated sources are
              small and numerous.
       •      The number of enforcement responses may depend, in part, on the degree of
              noncompliance.  For example, it may be easier to bring successful enforcement
              action in the early stages of a program when there are many obvious violators, than
              at later stages when (if the program has been successful) violations are less dramatic
              and less obvious.

       To use this indicator, policymakers must decide exactly what will be counted: total number
of legal cases initiated; a breakdown of the types of cases by severity of violation, number of sites
involved, multiple violations, or repeat violators; the number of cases won, etc.  These indicators are
not appropriate for goal-setting, because making program managers responsible for meeting quotas
for enforcement response could undermine the objectivity of the program in evaluating whether or
not sources are in compliance.
        Timeliness of Enforcement Responses
        One of the best indicators of a program's efficiency is the time it takes to either (1) respond
 to a violation, or (2) achieve compliance.  Ideally, many types of enforcement responses should be
 as swift as possible so that the source can be returned to compliance as quickly as possible.
 Timeliness can be evaluated by monitoring trends and, sometimes, by comparing actual results
 against predetermined goals.  For example, monitoring trends is particularly appropriate for
 measuring time to achieve compliance, since so many factors influence this result.  Timeliness can
 also be measured by setting goals for different types of enforcement  actions.  Success is then
 measured by comparing the actual schedules with these timeliness goals.  Goals can only be set for
 those types of enforcement actions that consistently take a predictable time to complete.  These are
                                              9-9
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 usually the earlier and more routine enforcement actions.  Enforcement actions involving later
 stages of legal procedures are generally too unpredictable to be evaluated in this way.  Also, timely
 response may not be possible or appropriate in some cases, such as criminal cases, that required
 detailed investigation before an enforcement action is filed.  Care may be necessary to ensure that
 use of timeliness as a measure of program success does not encourage enforcement personnel to
 take simple administrative action rather than pursuing a more time-consumine enforcement
  "'•,           	    .-        '                  ]             '    ! . '.  '   :  |  '
 response.
        Monetary Penalties Assessed
                 , „                                                     j
        This indicator is simply the total number and/or value of penalties assessed as a result of
 enforcement actions. Trends in this indicator are used to measure success, since it is not possible
 or appropriate to set goals for how many penalties should be assessed during a particular time
 period or how severe the penalties should be. This indicator may not be a good means of holding
 managers accountable for successful enforcement activity because there is generally a significant lag
 time (sometimes years)  between the initiation of an enforcement action and assessment of a
 monetary penalty.
                  •                                            i  ,.      i
                                     f                        ;         j
       In the United States, reports of the total value of monetary penalties assessed for
 environmental violations are prepared annually.
       Measures of Technical Assistance

       One measure of success for programs with an emphasis on compliance promotion is the
extent and effectiveness of technical assistance provided by the program to the regulated community
(see Chapter 5). This success measure is appropriate for both tracking and goal-setting. Several
measures can track progress in this area:

       •      The number of facilities that have received technical assistance.
       »      The increased compliance achieved by facilities receiving technical assistance.
                                            9-10
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       Other Measures

       The search for useful measures of enforcement success is an ongoing and creative process.
Other measures in addition to those described above may prove useful, such as the rate of
recidivism (i.e., Do those subject to enforcement response maintain or improve compliance in the
future?) and timeliness of the return to compliance once a violation has been detected (i.e., How
quickly is compliance achieved?).
                                              9-11
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PART III: IMPLEMENTATION AND EXPERIENCE
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               10.  BUILDING AN EFFECTIVE ENFORCEMENT PROGRAM
       This chapter discusses issues involved in building and managing enforcement programs.
While program structure and resources depend greatly on the roles, responsibilities, and types of
authorities available and appropriate in each situation, some steps and decisions are common to
the development of most programs.
PERSONNEL

       Role of Program Personnel

       Usually enforcement programs draw upon a mix of skills and expertise, including
engineering, scientific, legal, and administrative. These individuals will need to work together
effectively to identify and respond to violations.

       One key decision in assigning roles to program personnel is the degree to which
inspectors will become involved in following up on violations they have detected. In some
programs, inspectors focus on inspections, while other technical and legal staff are responsible
for taking action against violators.  In other programs, Inspectors play a major role in
enforcement response.

       Clearly defining the roles of the individuals involved in enforcement provides  a basis for
efficiency and cooperation.  In many countries, technicail and legal personnel work hand in hand
to develop enforcement cases.  Table 10-1 shows some of the responsibilities typically
undertaken by technical  and legal staff as they work to identify a violator and develop a case.
                                           10-1
-------
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       Staffing Level

       Ideally, an enforcement program will have sufficient staff to meet program objectives.  In
reality, program objectives may be based, in part, on the staffing level that can be achieved with
available program resources. Thus, staffing and program strategies are often interrelated.

       The program strategy will define the frequency of inspections and the amount of
personnel time required to conduct them. Inspection time includes time for the inspection
itself, as well as time to plan the inspection  and follow it up with" written reports and other
actions. The time required before and after the inspection may be twice as long as the
inspection itself.

       Policymakers will also need to ensure a balance of staffing  among the various program
functions, to avoid creating bottlenecks  due  to inadequate staff in a particular area. For
example, too much emphasis on identifying violations could mean that many identified
violations are not addressed and, as a result, the program loses credibility  and operates
inefficiently.
       Training

       Developing the breadth and depth of expertise needed to run a enforcement program is
challenging. There are no easy answers to obtaining the right skill mix. Enforcement is such a
highly specialized area that some training must occur on the job, either formally, through
training programs, or informally,  e.g., by pairing a new employee with a more experienced
employee performing the same function.

       Integrated  training (i.e., training designed to develop basic skills in a variety of expertise
areas) is valuable to develop the interdisciplinary skills essential to enforcement, and also to
build team spirit and a basis of mutual understanding and knowledge essential for future
cooperation.  The  U.S. Environmental Protection Agency, for example, is developing a national
                                           10-3
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training institute that could provide an integrated training opportunity for inspectors, lawyers,

and other program staff at all levels of government.

            ,i                         '     ;                i  " •     j
       Environmental requirements are changing and complex. Specialized training is often

also needed to build a depth of expertise in various program areas and to retrain staff as

requirements change or as program strategy is modified.

                                                          i         |
       Fairness and equity are important elements of an effective enforcement program.

Training program staff in professional standards of conduct provides an important basis  for

program credibility.
       Use of Third Parties


       Some enforcement programs use contractors or other third parties to perform certain
                s                        .i                i  .1  •    I
program functions, e.g., inspections.  Third parties can be particularly useful:


       •      To compensate for shortages of government personnel.

       •      To ensure adequate staffing during stages of a program (e.g., the first round of
              inspections) that require  more personnel than usual.

            1 •    i:                                    •        ',
       •      To work through backlogs.
            f !   ' i.l            -            '  '                         |
       •      To provide specialized expertise that is not readily available within the
              government agency.


Use of third parties raises several issues:
              Qualifications.  There may need to be some means to ensure that these third
              parties are suitably qualified and knowledgeable to perform inspections using the
              procedures established by the program.  For example, third parties can be
              required to complete a particular training course, or to acquire a particular type
              of certification.
                                           10-4
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              Confidentiality.  Information acquired during an inspection is generally
              confidential. Some mechanism will be needed to ensure that the information
              gathered by third parties remains confidential.

              Fairness and Consistency. Information gathered during an inspection forms the
              basis for a decision that a violation has occurred and an enforcement action
              should be taken.  Use of third party inspectors may raise concerns about whether
              decisions made based on the results of third party inspections are consistent with
              decisions made based on information gathered by program inspectors.
INFORMATION MANAGEMENT SYSTEMS


       As discussed in earlier chapters, information on the regulated community, on violations,

and on program activities is important to program management.  Such information is used to

develop priorities and strategies to most effectively use program resources (Chapter 4); to

monitor compliance (Chapter 6); to evaluate progress in meeting program objectives (Chapter

9).


       An enforcement program will benefit by having some system for information

management.  Systems vary in different environmental programs and different countries,

depending on the amount of information to be managed and on the resources available for

management.  Where possible, computerized  systems are valuable because they allow rapid and

sophisticated information storage, retrieval, and analysis.


       Regardless of the kind of system, information management planning is important to
program effectiveness. Basic issues to address in planning include:


       •      What information should be obtained?

       •      Who is responsible for obtaining it?

       •      Who is responsible for recording it?

       •      How long should the information be maintained in the files?

       •      What types of information analysis will be performed?
                                          10-5
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       •      Who will perform these analyses and how frequently?

       •      What, if any, information is confidential?

       •      What, if any, information should be released to the public?
                                                                  i       .    .
       In the Netherlands, the government has embarked on a two-year program to inventory
the compliance status of the 900 companies that hold permits for processing hazardous waste.
Inspectors complete a checklist for each company and transmit the results to a central

computer.  The information system is set up to generate sector-specific reports on compliance
                                                                                 ,
behavior, permit quality, and environmental impacts. The inspectors have received intensive

training, supported by written materials, about how to obtain, record, and transmit data.  The

results are being used to support policy development for hazardous waste processing.
PROGRAM FUNDING


       Funding is clearly an important issue in establishing an enforcement program.
                                                                  j
Enforcement programs in different countries use a variety of funding sources. These include:
              General Revenues. Many countries fund environmental programs, including
              enforcement programs, by allocating funds from general revenues, e.g., income or
              sales taxes on industry and/or private citizens.

              Pollution Taxes or Fees.  Enforcement programs can be funded by taxes levied
              on or fees  charged to facilities based on the amount and/or toxicity of their
              pollution.

              Inspection  Charge.  Some programs obtain income by charging facilities for
              inspections.  This is the approach taken in Sweden.

              Permit or License Charge.  Program income can be obtained by charging
              facilities for obtaining a permit or license.

              Monetary Penalties.  Policymakers will need to decide what will be done with
              monetary penalties collected under the program.  These can either be deposited
              in a general government or environmental program fund, or used directly to pay
              for enforcement program expenses.  Using monetary penalties to pay program
              expenses is an approach widely used by states in the United States but not as yet
              by the national government. One concern with this funding source is that it may
                                                                  i
                                          10-6
                                                                 	I..
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             cause the program to lose credibility if it appears that enforcement actions are
             being taken to increase revenue. If the program is funded through penalties,
             certain processes must be defined in regulations and procedures to ensure equity,
             i.e., that the program penalty does not specifically target facilities for
             enforcement because of the potential penalty revenue.
EVOLUTION OF ENFORCEMENT PROGRAMS

       All enforcement programs evolve over time.  This section gives examples of how some
established programs have evolved. These examples are not intended as models for evolution.
Rather they demonstrate that enforcement can be successful in the early stages  of program
development. They also illustrate how enforcement programs do typically pass through many
different stages in evolution in response to lessons learned and changing conditions.
       Enforcement as a Priority

       The priority given to enforcement by the government is an important factor contributing
to the success of an environmental program. Both the United States and the Netherlands have
experienced periods where enforcement was not a priority and, consequently, the overall
environmental goals were not being met effectively. In both cases, these deficiencies catalyzed a
new emphasis on enforcement, with substantial  improvements in environmental quality.

       In the United States during the late 1970s, the U.S. Environmental Protection Agency
conducted a major enforcement effort to bring the most significant violators into compliance.
This effort was highly successful. After 1980, however,  there was a precipitous decline in the
number of federal civil  suits and other enforcement activities due to a reorganization of the
program and a widely shared perception that enforcement was no longer emphasized by senior
Agency officials.

       In a much-publicized turnaround, a new management team was brought to head the U.S.
EPA in the early 1980s. Enforcement strategies were reconstructed in 1984, and enforcement
                                          10-7
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 was emphasized repeatedly by the new Administrator and his Deputy. However, this was not
      ''     '. 'i1   i i'i           •              I                j  'i,1    • • i j  i • • v                   i
 sufficient. So, a new management apparatus was put in place to revitalize the enforcement
 effort, and to systematize and restructure enforcement so that it would no longer be subject to
 the whims of management.  The U.S. EPA now has well-defined strategies, measures, and
 systems to manage enforcement to an unprecedented degree. Enforcement continues to be a
 priority for the U.S. EPA.  This management emphasis on enforcement has provided an
 important foundation for the program to evolve during the 1980s and early 1990s in response to
          ,"',li! '   I'1 'ill"          '               I                I   • •     I
 the new challenges and changing conditions.


       In the Netherlands, many environmental scandals involving hazardous waste came to
 light in the late 1970s and early 1980s.  The nation's laws regarding hazardous waste were not
 being complied with because there was no enforcement program.  To improve this situation, the
 Dutch government made enforcement a priority in 1984 by establishing an extensive Multiyear
 Intensification  Program (MGP).  The program's main objectives were:
       »     Significantly improve the quality of enforcement at the national level by
              improving the expertise and skills of MIP personnel, allocating more manpower
              and resources to enforcement, improving the internal organization of
              enforcement resources, and fostering cooperation among the different groups
              that would be involved in enforcement.
                                        i                ,       ,  |
       •     Involve officials at the provincial and local levels by developing their skills and
              expertise, and by strengthening the Public Prosecutor, and increasing the
              availability of the police force for enforcement.
               'n!                        ''                i         j
       •     Construct  a network of cooperation among all the agencies involved.

                                                        I  .       |
       The program was  implemented over a 6-year period and was instrumental in stimulating

enforcement at both the national and local levels. During this period, the national government

also developed a total environmental program, the National Environmental Policy Plan. This

Plan further strengthens enforcement by providing financial resources to the provinces and

municipalities to enable them to bring their permitting and enforcememt activities up to an

adequate level over  a 4-year period.  Financial resources have also been made available to the

Public Prosecutor and the police to enable them to devote more attention  to enforcement
(under criminal law) of environmental legislation.
                                                                 i
                                                                 I
                                          10-8
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       Evolution of Authorities

       Table 7-1 lists many authorities that may be of value to an enforcement program.
Enforcement programs typically begin with a much smaller number of authorities. Additional
authorities are added gradually by revising laws after the need for new authorities becomes
apparent from unsuccessful efforts to address problems.  New authorities are sometimes added
based on creative interpretation of existing laws. Even the more mature programs such as those
in the United States continue to add authorities as previously unnoticed gaps are discovered and
as changes in environmental problems create a need for new authorities that were not previously
needed.

       In Canada, for example, criminal enforcement has been the predominant enforcement
mechanism at the national level.  Canadian laws have evolved to provide some very creative
criminal enforcement  sentencing conditions.  However, Canadian officials are now actively
considering  the need for a complementary civil enforcement program.  There is some discussion
about whether existing Canadian laws provide sufficient authority to develop a civil enforcement
program.

       Until recently  in the United States, national enforcement programs were predominantly
civil in nature, even though certain general authorities could have been used for criminal
enforcement of environmental requirements (e.g., a general prohibition on defrauding the
government).  Over time, the amount of criminal enforcement has increased as criminal
authorities have explicitly been strengthened in each of the U.S. environmental laws.  New
authorities also have been added so that monetary penalties can now be imposed
administratively as well as through the courts in virtually all U.S. programs. Consequently,  civil
administrative programs have significantly increased in importance.

        Several U.S. environmental programs began with insufficient authorities to accomplish
their goals.  For example, the first U.S. laws concerning hazardous waste did not provide
 authority to correct past environmental damage at ongoing hazardous  waste operations. This
 authority was subsequently added. The original Clean Air Act did not provide the federal
 government with any authority to seek or impose monetary penalties.  Consequently, program

                                           10-9
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  officials could only seek court-ordered compliance schedules.  An authority to impose monetary
  penalties was added several years later.
         Identifying the Regulated Community and Establishing Priorities

         Enforcement programs with limited resources and information often begin by focussing
  oil the few sources that are causing the most severe environmental or public health problems.
  In the United States, for example, national enforcement programs concentrated first on a
  relatively small group of major sources to ensure that basic pollution controls were in place.
  Early enforcement efforts also focussed on particular industries, such as the power and steel
  industries, so that enforcement officials could build expertise and precedents for these key
  pollution sources. Priorities became more sophisticated as the programs evolved.  More
  recently, priorities are set based on goals of reducing environmental and health risk and creating
  deterrence.  In U.S. programs, the need to strike a balance between establishing a broad
  enforcement presence in the regulated community and targeting the most serious violators has
                                           i                i
 been handled differently at different times.  Simple formulas, such as "inspect all major sources
 of air or water pollution at least once a year," are being replaced by  more tailored  approaches
 that are responsive to local priorities and needs.
        Compliance Promotion

        A fundamental issue in structuring an enforcement program is how much emphasis
should be placed on compliance promotion versus enforcement.  The resolution of this issue
depends greatly on the culture and particular regulatory situation.  The U.S. water discharge
program provides one example where compliance promotion alone was not as successful at
achieving compliance as compliance promotion combined with enforcement.  Early efforts
promoted compliance by providing municipalities with subsidies to'construct sewage treatment
systems in conformance with standards specified by law. Nevertheless, compliance rates were
relatively low.  Major results were achieved in a short time period once significant enforcement
actions and accompanying monetary penalties were imposed (see last section of Chapter 7).
                                          10-10
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       Compliance Monitoring

       A major issue for enforcement programs is training inspectors. Many enforcement
programs rely on-the-job training, with junior staff learning in the field from senior inspectors.
For completely new programs, many inspectors learn by experience with each inspection. As
experience is gained, inspection guidelines and checklists can be developed.

       The development of reliable self-reporting and self-monitoring systems also takes time.
This generally  proceeds  in several steps.  For example,  a first step can be to ensure that any
equipment needed for self-monitoring is in fact installed and operating. A next step can be
comparing results across sources to help target inspections. Another step is often development
of a system to  manage the information so that it can be more easily accessed and used by
program personnel.
       Enforcement Response

       Policies for enforcement response evolve over time as experience is gained and new
authorities are added.  In the United States, some enforcement policies are tested before being
made final. Some enforcement programs purposefully delay developing enforcement response
and penalty policies until they have some experience with the actual types of violations that are
emerging and with the best approaches for bringing sources into compliance.
       Roles and Responsibilities

       Several decisions will need to be made in structuring and implementing an enforcement
 program: the degree of centralization versus decentralization; the role of technical staff versus
 engineers; whether an enforcement program should cover several environmental media or focus
 on one medium.  Whatever decisions are made, program responsibilities  often shift as a
 program matures.  For example, some centralized programs are eventually decentralized to take
 advantage of expanded resources at the local level. Also, it may be appropriate to decentralize
 when experience gained at the national level can be effectively transferred to the local level.
                                          10-11
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  Some decentralized programs are centralized when differences among decentralized programs
  cause problems in transboundary pollution or when some local programs may be limiting
  enforcement to attract industry to the area.
                 "''''•                         '                i         i  ;
                                                           !  ,!•"      I
        The role of legal staff may diminish as programs evolve and clear tested legal language
  and procedures have been developed and can be made routine. In the United States, for
  example, administrative enforcement of many routine violations can now be implemented with
  established policies and procedures and little attorney involvement.

        Historically, U.S. federal enforcement programs have been structured along separate
 program lines.  Now there is greater emphasis on multimedia enforcement. Many U.S. state
 programs, however, have always had multimedia programs. The United Nations Environment
 Programme  strongly advocates a multimedia approach to inspection.
        Evaluation and Accountability
                                                                    l
        Many enforcement programs rely on anecdotal information to evaluate success both
 internally and externally.  Evaluating program success may not be a focus in new programs,
 particularly if resources are limited and there is no public demand for information on
 enforcement actions.  U.S. enforcement programs now have a fairly complex system for
 accountability and evaluation.  This system evolved over time in response to the need to
 effectively manage a decentralized program that retains centralized responsibility for oversight,
 and also because of the highly public nature of this oversight process.  Also, as resources for
 enforcement have almost doubled from 14% of federal environmental  personnel in the early
 1980s to 25% in the early 1990s, more attention is being paid to how well those resources are
achieving results.
                                       10-12
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                   11.  CASE STUDIES:  PULLING IT ALL TOGETHER
INTRODUCTION
       This chapter shows five examples of how the enforcement principles and tools described

in the previous chapters have been applied in real-life situations. Most of these case studies

span several years and illustrate how programs evolve over time. In several cases, there was

limited enforcement during the first years of managing an environmental problem.  Enforcement

became a higher priority when substantial noncompliance was documented. In all cases,

enforcement was clearly effective in achieving significant increases in compliance  and

improvements in environmental quality.  The case studies show a wide variety of creative

solutions to challenging compliance problems.
              In the first case study, officials in Allegheny County, USA, developed several
              innovative settlement mechanisms to help ensure compliance with air pollution
              control requirements by facilities with financial limitations.  This study also
              demonstrates how the ability to supplement local efforts with support from
              higher levels of government can provide the "muscle" needed to overcome
              challenging obstacles and clear the way for more effective subsequent
              enforcement at the local level. In addition, this study is a good example of how
              potentially adversial relationships in enforcement and dispute resolution can be
              transformed into resources for achieving success by creating forums for
              cooperation and dialogue among interested, affected, and concerned parties.

              The second case study concerns  enforcement, at the local level, of particular
              waste disposal requirements in the Netherlands.  It illustrates a creative approach
              that enabled Dutch officials to achieve results despite staff shortages and time
              constraints involved in the permitting process.  The study also shows the
              importance of considering social and economic factors affecting compliance.

              The third case study describes an evolving program in the Netherlands for
              controlling disposal of liquid waste  from ships.  The program has achieved
              significant initial success but still faces many challenges.

              The fourth case study, from the USA, shows how national and state enforcement
              efforts succeeded in bringing  local municipalities into compliance with wastewater
              treatment requirements.  With support from the Administrator of the U.S. EPA,
              the states, the public, and the media, federal and state officials were able to
              create a strong and effective enforcement presence.  A carefully thought-out
              policy and management approach guided the program from its inception. The
              program permanently altered the common attitude that it was  too difficult for the


                                           11-1
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               federal and state governments to enforce against municipalities and that such
               enforcement would not result in environmental compliance.
        •     The fifth case study concerns enforcement of lead regulations in the United
               States. This example describes an enforcement program designed to achieve
               compliance with requirements of an economic incentives-based approach to
               reduce the lead content of gasoline. Enforcement seems to have had substantial
               deterrent power in this case.
          '•     • '   , M                        ' i                i  ,       i
        As these five  examples illustrate, every environmental management situation is unique
 and requires creative application of the many options described in this text to design an
 effective  enforcement program capable of achieving the desired results. These five case studies
 demonstrate a range  of possible approaches  to enforcement, but are by no means inclusive.
 Many other approaches exist.  As stated Chapter 1, policymakers must make their own choices
 within the parameters of the available resources and local cultural factors to develop an
 effective compliance strategy and enforcement program in any particular situation.
 CASE STUDY 1:
ENFORCEMENT OF AIR REGULATIONS IN ALLEGHENY COUNTY,
USA                  ' '  '       	
       Introduction
               ' •   !"                         i                '         |
       Allegheny County is located in the state of Pennsylvania and is home to the City of
 Pittsburgh (see Figure 11-1).  Since the early nineteenth century, the County has been a major
 steel production center in the United States.  Because of its industrial success, the area
 experienced some of the worst air pollution problems in the country. The County was one of
 the first areas in the country to try to improve air quality and has been in many ways a model
 for successful air pollution control. Control techniques and standards developed in the County
 have become models on the national level.  Air quality has substantially improved and no
 annual standards for particulates or sulfur dioxide are now exceeded in the (Bounty.  Violations
 of short-term standards are rare and are usually due to breakdown of control equipment.  This
            ,:'   ' !   it                         '!                j   ',      '[: i ^ *
 improvement in air quality is due to strict controls and to a decrease in steel and coke
production since the late 1970s. This case study reviews air pollution control in Allegheny
                                          11-2
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   FIGURE 11-1
RLLEGHENY COUNTTY
PENNSYl_VRNia USR
                                11-3
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 County with a focus on the two decades from 1970 to 1990, a period of increased environmental
 concern and substantial economic change.
        County Profile
        Allegheny County, Pennsylvania, is located in the northeastern United States
              1   '"                        ,1          .f '.    I   "!!,„ •:      '  '
 (Figure 11-1). The County is approximately 731 square miles (1,893 square kilometers) in area,
 with a population (in 1990) of just over 1.3 million (down from 1.6 million in 1970). Pittsburgh,
 located in the center of the County at the confluence of the Allegheny, Monongahela, and Ohio
 Rivers, is the County's largest city.
                                                            !   :       I
        _           :                         i                II,
        The County is located in the foothills of the Appalachian mountains,  on a peneplain,
 i.e., an elevated area flattened by glaciers.  Three rivers have carved large valleys into the plain:
 the Ohio River, the Allegheny River, and the Monongahela River. Weather systems often stall
 at the Appalachian mountains to the east of the County, creating periods of stagnation in the
 spring,  fall, and sometimes the summer that last for several days.  The area experiences about
 170 to 200 inversions each year.
                                            :                •          !
                                            I                          I
        The area has been a major industrial center since the early 1800s. The primary
 industries have been steel, coke, and related industries.  There are also a few chemical plants in
 the County.  Coal was burned by residents until the early 1950s, when large gas lines were built
                                            :                          j
 to service the area, and by coal-fired power plants (most of which  are no longer operating due
 to the age  of some of the facilities and a decreased demand for power).  Almost all homes and
 commercial operations are now gas-fired.  Industrial plants  are generally located in the river
valleys,  and residential sections at higher elevations.  Of particular concern has been a 25-mile
 (40-kilometer) stretch of the Monongahela River valley beginning in Pittsburgh and ending at
the County line. In the early 1970s, this section contained seven steel mills, including the
world's  largest coke plant.
                  ;                                   ,

       The steel and coke industries were healthy until the  late  1970s, when these industries
began to decline throughout the United States due to the availability of steel  substitutes and the
                                                                      j
                                           11-4
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import of coke.  Production declined steadily in the late 1970s and early 1980s and has remained
relatively constant since the early 1980s. In the early 1970s, the County had 28 coke batteries;
in 1991, only 19  of these were still operating.  The County had nine steel mills in the early
1970s; in 1991, only four remained in operation.
       Air Pollution Control Before 1970

       During the nineteenth century, as Allegheny County developed into a major industrial
center, emissions from industrial and residential sources coupled with the area's frequent,
stagnant inversions caused severe pollution problems.  A.t that time, the City was described as
"hell with its lid off." Even up to the 1940s, the pollution was sometimes so dense that street
lights in Pittsburgh had to be turned on in the middle of the day.

       The first efforts at air pollution control began in the late nineteenth century, but were
ineffective until the late 1940s, when a 1941 Pittsburgh smoke control law was finally enforced.
This ordinance regulated both industrial and residential combustion sources. One of the main
thrusts of the law was a requirement that both industry and residences burn clean fuels.  Similar
pollution control measures were subsequently instituted in other parts of Allegheny County.

       The Allegheny County Health Department took over the duties of the City Smoke
Control Bureau in 1957 and assumed responsibility for air pollution control throughout the
County. In 1960, the County passed Article XIII, which established a Bureau of Air Pollution
Control under the Health Department and created some of the strongest particulate control
regulations in the nation.

       During the 1960s, residents and leaders in Allegheny County, as in other areas  of the
United States, became increasingly concerned about the state of the environment. The state of
Pennsylvania authorized Allegheny County to regulate gaseous pollutants. The County passed a
new and more encompassing regulation, Article XVII, in 1970.
                                           11-5
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       Authority for Air Pollution Control, 1970-1991

       On the national level, increasing citizen concern for the environment in the 1960s
 resulted in the creation in 1970 of the U.S. Environmental Protection Agency (U.S. EPA), the
 federal agency responsible for ensuring environmental quality.  The 1970 national Clean Air Act
 required the U.S. EPA to establish health-related National Ambient Air Quality Standards, and
 it required each state to develop and enforce a State Implementation Plans (SIP) to meet these
 air quality goals.

       Because of Allegheny County's long involvement in air pollution control, the state  of
 Pennsylvania granted the County the authority to develop and implement the air pollution
 control program for the County. The County proposed a program that was approved by the
 state of Pennsylvania and subsequently by the U.S. EPA. With these approvals, the County
 program  and regulations became part of Pennsylvania's  SIP and are therefore enforceable by
 the county, state, and federal governments.  This relationship has been in effect since 1972.  The
 state and federal governments have become involved in enforcement only In situations where a
 state or national presence was important to achieve results.
       Allegheny County Air Quality Regulations, 1970-1991
       In Allegheny County, regulations are developed by the County Department of Health.
They are submitted to the Air Pollution Advisory Committee (which includes representatives
from industry, academia, city government, and the public—see below) for review and comment.
The Board of Health then proposes final regulations to the County Commissioners who either
approve or disapprove the regulations, but may not change them.  Because of the County's
responsibility as part of the SIP for Pennsylvania, County regulations must be  approved by both
            •	;   i                        !         ;'         „ '     i  :
state and federal governments.
              . •                            '                         i  .
               -                          .                  !,,,!•
       During the period from 1970 to 1991, Allegheny County has enacted and amended air
  	i> .       . U   i,!                     '   !          I,   .  I   .:      .1.
pollution control regulations several times, in response to changes in federal requirements and
as a result of lessons learned through implementation and enforcement of the  air pollution
              .'.   '                         i                i   j •      !i
                                                           '.   •      'I • i
                                           11-6
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control program.  Article XVIIE was passed in 1972 in response to the 1970 national Clean Air

Act, and amended several times in the next few years.  Article XX was enacted in 1981 in

response to the 1977 amendments to the national Clean .Air Act.  These regulations (and

subsequent amendments) govern air pollution control in Allegheny County in 1991.


       Following are some examples of how the County regulations have been changed to meet

new federal requirements, to address newly discovered air pollution problems, and to improve

the enforceability of the regulations:
              A mechanism was provided to allow industrial growth in areas that do not
              comply with air quality standards.  The mechanism allows industrial growth in
              such areas under certain specified conditions but only if the emissions from the
              new source(s) are stringently controlled and there is a net improvement in air
              quality.

              Emission standards were established for hazardous air pollutants such as asbestos
              and mercury.

              Regulations were adopted to address newly recognized air pollution problems,
              such as emissions from the burning of waste-derived liquid fuels and emissions
              from abrasive blasting to remove old paint (often containing lead) from bridges,
              water tanks and other structures.

              Standards were established for particulate emissions from "nontraditional"
              sources such as roads, unpaved parking lots, and storage piles.

              Certain sources were required to install monitoring equipment to continuously
              measure emissions and report the results to  the County.
       The Air Pollution Control Advisory Committee
       The Air Pollution Control Advisory Committee (APCAC) was established by Article

     in 1960 to recommend changes to County air pollution control regulations and to advise

the County Bureau of Air Pollution Control and the County Board of Health on air pollution
control matters. The APCAC also provides a forum for citizen opinion about the performance

of the Bureau of Air Pollution Control and a forum where the public can air their general

concerns about air quality in the County.  The APCAC is strictly advisory in nature. It consists

                                           11-7
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of 19 persons, including representatives from academia, environmental and public interest
groups, and industry.  All members are appointed by the County Commissioners.  Industry
representation is limited to five members.

       The Committee holds six to eight public meetings each year.  The Committee reviews
arid comments on proposed new or revised regulations developed by the Bureau of Air
 :iil!l !            i   'III ,          ''  ;,           '," 'I         '"'/I  '   I   ' :'• "  ..  I ',!  i       ','
Pollution Control.  The Committee also reviews the County's portion of the Pennsylvania State
Implementation  Plan, proposed air monitoring  programs, and other proposals connected with
ensuring ambient air quality.  The APCAC has provided an important mechanism for
involvement of the various sectors concerned with and affected by air pollution control. The
up-front involvement of these sectors in regulatory development has contributed to the success
of subsequent enforcement efforts.
       Standards and Methods
       The County regulations established emission standards and specific methods for
determining compliance.  Both the nature of the standards and the specificity of the methods
have provided an important basis for effective enforcement.
                 nil                         i     •     :     |          j
                :;f      '                 '  !          :        ;l! "      !
        • •   ;', ,  •• „ 11                       .  l          .     i   •,       |
       Two Types  of Emissions Standards. The regulations provide two main types of
standards: one type that is based on exact measurements of pollution (e.g., emission standards
        	 ,  ' •• I   ' .!;;ii|          ,               !          •     ,!,,,'    i '  !| , •
measured in pounds per hour) and a second type that provides a more general gauge of
pollution (e.g., opacity of emissions). The  first type is expensive  and resource-intensive to
measure, and often requires some days of analysis before results  are obtained.  Compliance with
the second type can be readily determined  (e.g., compliance with opacity can be determined by
one inspector in about one hour's time). The  second type of standard has provided County
officials with an important and practical enforcement tool to help ensure compliance.
                                                                    i
       Specificity of Procedures and Methods. The County regulations define the procedures
                                                             ,
for inspection and measurement. This has helped ensure that regulated industries are  treated
fairly and that results are consistent  (avoiding  a situation, for example, where one method would
              „                           ,  ,        ,       ,
                                           11-8
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find a facility out of compliance while a different method would find that same facility to be in
compliance).
       Enforcement Mechanisms

       The County's air pollution control regulations were enacted with the realization that not
all regulated sources would automatically take the steps necessary for compliance. The County
therefore carries out an inspection program that evidences a real presence at the sources and
that enables the County to have a continuing awareness of each source's compliance status.  In
addition, the County takes appropriate enforcement actions when necessary to ensure
compliance.

       The various regulations established a number of enforcement mechanisms that provided
County officials with the authority and tools they have needed for successful enforcement. The
broad variety of mechanisms enabled County officials to negotiate agreements  that could
realistically accommodate the technical and financial situation of a company while still providing
meaningful deadlines and disincentives for noncompliance.
       Variance Board.  One challenge of enforcement is often that a large number of facilities
are suddenly in violation when new regulations are issued.  To handle this situation, Allegheny
County regulations established a five-person Variance Board in 1972 to review and approve
compliance schedules with noncomplying industries. The Board was appointed by the County
Commissioners and had to have at least one attorney, one engineer, and one public health
specialist. Facilities that were suddenly out of compliance when new regulations were passed
were given a certain number of months to file a petition, with the Variance Board, that defined
a plan and schedule for coming, into compliance. These petitions were reviewed in public
hearings in which the company would formally present its plan and the Bureau of Air Pollution
Control and the public would comment on the plan. The Variance Board would then decide
whether to accept the petition.  This proved to be a very successful mechanism for ultimately
achieving compliance with regulations that immediately put many facilities out of compliance
when the regulations were first enacted.  The Board was discontinued in 1981 because most

                                          11-9
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industries were in compliance by that time. Compliance programs for the remaining
noncomplying sources were usually established through the new regulations or by the Bureau of
Air Pollution Control through negotiations or administrative orders.
            i,                                                 • '     i
                 "                         i                i         i
       Ability to Seek Penalties.  The regulations provide County officials with the ability to
seek penalties through a magistrate's court and through a Civil Penalty Clearing Board. In such
actions, the County presents its case and industry presents its case. Decisions can be appealed
            JH<:   , .', ' Hi  i,        ,              , '                :,,,•,  |.  .
to a higher court.

       Ability to Issue Administrative Orders. County officials have found that the ability to
issue administrative orders has been an important element in the  success of enforcement efforts.
Administrative orders have proven a valuable mechanism to circumvent lengthy court
proceedings.  Many orders are consent orders, i.e., the facility agrees to the terms of the order.
Some orders have been unilateral. The company can appeal unilateral orders; in such cases, the
County tries to resolve differences through a negotiation process.
  "          >•    ,,;                         !"   '                ; ,,     !  I
                 ij:'     '      '             i   '        •    • F  ' • ' '   I  '-I,
       Ability to Negotiate Creative Settlements. The County has used several innovative
approaches in consent decrees to help ensure compliance:
              Performance Bonds.  Some companies are asked to post a performance bond.
              They forfeit the bond if they subsequently fail to meet the terms of the consent
              decree.
              Escrow Accounts. Some companies were required to establish special escrow
              accounts to ensure that monies would be available to pay any penalties that
              might accrue.
              Research Requirements. In some cases, facilities are asked to perform a study to
              determine how they could best come into compliance.
                ''"ii    '                     '                !   : '     I
              Credit Projects. As a substitute for payment of a penalty, companies sometimes
              agreed to reduce emissions beyond the levels required by the regulations.
              Delayed Compliance Orders. These orders set forth schedules for pollution
              sources to achieve compliance but protect the sources from further enforcement
              action as long as the sources remain on schedule with the orders.
                                          11-10
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              Stipulated Penalties. Some consent decrees and consent orders contain
              provisions for the payment of stipulated penalties if the decrees or orders are
              violated.  Such provisions set forth agreed-upon fixed or graduated penalties for
              various types of violations.

              Self-monitoring.  Consent decrees often contain provisions for self-monitoring.
              The goal of self-monitoring requirements is to increase the company's awareness
              about their state  of compliance with the hope that the company will then take
              steps on their own to correct any violations.  To encourage companies to
              accurately record the data, self-monitoring data are rarely used by the County for
              enforcement.  Companies are required to report any violations they detect and,
              at times, are permitted to reduce the amount of self-monitoring as a reward for,
              or in recognition  of, good performance. Self-monitoring, in effect, extends the
              limited inspection resources  of the County.
       Ability to Consider Economic Factors. The County has used several approaches in its

enforcement actions that consider economic conditions or circumstances:

       •      Pilot Projects.  In some cases where a company argued that certain measures
              were not technically or economically feasible, the company and the County
              agreed that the company would implement these measures on one or two of their
              plants as a test of feasibility.  Appropriate measures to bring the rest of the
              company's operations into compliance were negotiated once the pilot results were
              obtained.

       •      Fhased-in Approach.  Companies are not always required to implement all
              control measures at one time. Sometimes a phased approach has been
              negotiated.

       •      Extended Schedules.  When a company would have genuine difficulties achieving
              compliance with a standard schedule, extended schedules can be negotiated. In
              one case, the County  required installation of expensive controls ($30 to $40
              million)  that never really worked effectively. After a certain period of time, the
              County began to negotiate with the company to install new controls.  In return
              for a commitment by  the company to replace the old control systems, County
              officials  allowed the company to discontinue use of the old controls and use a
              relatively inexpensive  interim system while taking steps to install more effective
              equipment.

       •      Maximizing Existing Systems.  In cases where a company was on the brink of
              shutdown due to financial difficulties, the County often waived a requirement for
              installing new equipment (which would likely have put the company out of
              business) and instead required that existing control equipment be used as
              effectively as possible.
                                          11-11
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                                                                                        " il	
              Deferred Control Expenditures. Certain economically depressed industries were
              permitted to defer air pollution control expenditures for limited periods of time
              if such monies were invested in new plants and equipment.

              Penalty Payment Schedules.  Some companies in financial difficulties are allowed
              to make penalty payments for violations over a period of time rather than paying
              the entire amount of the penalty at the time the enforcement action was settled.

              Limited Life Policy.  As an alternative to installing expensive pollution control
              equipment, obsolete, violating facilities that are scheduled to be permanently shut
              down are permitted to continue to operate for limited periods of time while using
              interim control measures.
       Resources
             :                            ,          ...             j.  |
                                                                  i   . .

       The Bureau of Air Pollution Control's 1991 budget was just over $3 million. About half
           •	      ...            .,          ..        ,      |  .
this budget comes from the federal government, $1 million from the County (derived largely

from property taxes), about $0.5 million from permit fees, and over $100,000 from penalties. A

special High Priority Fund provided by the U.S. EPA is set aside for high-priority projects.

Budgeting for using this Fund does not have to go through the normal County administrative

budget process.
             1    ;          "                              ;
                                                                  I

       The Bureau of Air Pollution Control has a staff of 55 (as of 1991).  The Bureau is

divided into four divisions (Enforcement Division, Air Quality Monitoring and Source Testing

Division, Engineering and Planning Division, and Computer Services and Data Analysis

Division) and an Administrative Services and Training Section.
       Monitoring


       Fifteen full-time staff of the Air Monitoring and Source Testing Division are responsible

for monitoring. The Division measures air quality using both continuous and intermittent
            I, •   • .                         :            .   . i  ,,      ,j
monitors.
                                          11-12

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       Over the years ambient monitoring has become more sophisticated. The County now
operates a monitoring network of 39 sites monitoring six gaseous pollutants and four measures
of particulates. The gaseous pollutants are sulfur dioxide, carbon monoxide, ozone, nitrogen
oxides, hydrogen sulfide, and benzene.  Air quality is measured continuously by the monitors in
the field and collected about six times per minute by data loggers located at the sampling sites.
A central computer polls the data loggers once each hour using dial-up telephone lines to obtain
real-time data. This computer permanently logs the data and processes it for use. For example,
the computer processes  the data by calculating an Index for sulfur dioxide, carbon monoxide,
and ozone that is used for daily reporting of air quality to the public.

       There are four measures of particulates.  Two are continuous and two are intermittent.
One of the continuous methods, the tape sampler, was  developed locally in the 1970s to provide
inexpensive real-time hourly data and is used to calculate the particulate Index for the public.
The other samples fine  (i.e., health-related) particulates, referred to as PM-10, and is used at
two sites. Both types are connected to the central computer in a manner similar to the .gaseous
pollutants.

       The two intermittent particulate sampling techniques measure either total suspended
particulates or the finer health-related fraction.  These req[uire sampling for 24 hours and then
several days for analysis of the filters in the laboratory.  The filters are also used to determine
ambient levels of lead, benzo(a)pyrene,  other heavy metals, chlorides, sulfates, and nitrates.

       Although the federal standards for particulates  are for suspended, fine (i.e., health-
related)  levels of particulates in the air, the public is often concerned about dust falling on their
property from nearby sources. The County employs an inexpensive technique to help detect and
screen such problems.  Dustfall cans are set out for 30 days and the dust collected is then
weighed and, often, examined microscopically in the laboratory.
                                           11-13
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        Emissions

        One important aspect of the Bureau's work involves tracking emissions from sources.
 Several staff are assigned to developing and maintaining a computerized emission inventory.
 The inventory includes data on source names, types, locations, capacity, emission parameters,
 and emission rates for both actual and allowable emissions.  These data are often obtained by
 stack sampling.  The County usually observes stack tests conducted by industries to assure
 correctness and will split samples with the industries when doing its own laboratory analysis;
 however, the County is capable of conducting its own tests when needed.

        The emission inventory data are often used in computerized diffusion modeling. The
 modeling allows the County to predict air quality under various conditions by adjusting
 parameters in the model, but modeling is difficult in Allegheny County due to its river valley
  '«;„ i          ii, '                  '     '       i                !         • i  ;              *
 topography which is not simulated well by most models.
       Inspection

       Approximately 1,600 permits were issued to air pollution sources in Allegheny County in
 1991.  These include 100 to 150 major sources.  About 200 sources are inspected each year.
 Other, mostly smaller, sources are believed to be in compliance based on periodic or occasional
 inspections, self-reporting, the nature of the operation, or the fact that no complaints have been
 received.

       Inspections generally focus on the major pollution sources. Historically, the federal
 government has determined priorities for inspection.  In 1991, Allegheny County submitted its
 own priorities to the U.S. EPA for approval. The County has three full-time inspectors and one
 engineer dedicated to inspecting coke plants; six engineers who inspect other industrial sources;
 and four full-time inspectors who respond to citizen complaints. The number of plant
inspectors has stayed relatively constant since the early 1980s. Although there are fewer sources
in 1991 than earlier, the inspections  have become more complicated.
                                          11-14
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       Most sources on the priority list for inspections are inspected at least once a year.  A
typical inspection is unannounced, with the inspector spending about one day checking plant
records and control equipment.  Some sources are inspected on an as-needed basis  (e.g., when a
complaint is received).  When an inspector finds a potential violation, he or she fills out a form
documenting the alleged violation, and provides a copy to the source and a copy to  the Legal
Section of the Enforcement Division.  The Legal Section determines whether a violation has
occurred and, if so, decides whether and how to pursue the case.  The inspector may be called
on to obtain additional information and/or testify.
       Role of the State and Federal Governments

       To help implement Pennsylvania's State Implementation Plan, the U.S. EPA has
supplied funding to Allegheny County.  Allegheny County has used these funds to hire
additional staff and to purchase equipment. The County has also received technical assistance
from the U.S. EPA.

       Generally, the state and federal agencies approve the County's regulations and air
pollution control program and then let Allegheny County manage and enforce the program. In
the early 1970s, however, the state and federal governments did become involved in a
challenging enforcement situation concerning coke plants. These sources were very large and
difficult to control.  Because compliance required substantial emission reductions and
investment in pollution control equipment, the industry was generally unresponsive  to initial
enforcement efforts by the  County. The industry argued that it was not technologically possible
to meet the standards. This argument was difficult for the County to counter, since County
officials did not have a broad national or international knowledge about the available technology
for reducing air pollution in this industry.

       The state of Pennsylvania and, eventually, the federal government became involved in a
series of joint actions against the major coke industry polluters.  The national implications of
the case were another stimulus for federal involvement; effective enforcement in this part of the
country would send a signal to the coke industry in other parts of the United States that the

                                           11-15
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 federal government was committed to taking whatever measures were necessary to achieve
 compliance. As compliance was achieved, the state and federal governments reduced their level
 of involvement. Now that most of the coke plants are in or near compliance, the County is
 once again becoming fully responsible for enforcement.
        Role of Environmental Groups and the Public
             lf !  ,  "'          '                                       !  '!

        Allegheny County has several environmental groups that have been active and effective.
  ;'''. '',      '    'i !   '' ,•      '    '             ' '  !     !.,     ': !,    ! ' "Li',!   ,  ' '!'  ,',! ' "
 One of the most active groups, the Group Against Smog and Pollution (GASP), was formed in
 1969.  The County's progress in air pollution control is partly due to the efforts of
 environmental groups to ensure public awareness and government action, and to their
 willingness to participate by serving in a voluntary capacity on the Advisory Committee and its
 various Subcommittees.

        During the 1970s, enforcement was aided by strong public support for environmental
 protection. In the 1980s, the primary public concern in the County shifted to employment and
 economic development, which was sometimes a source of conflict.  Nevertheless, concern and
 support for protecting the environment remained strong.
       Role of Industry

       In the early 1970s, industry was at first resistant to compliance. Enforcement and
penalties were needed to demonstrate the government's commitment to achieving compliance.
Industry's role has reversed since that time.  Most industries now recognize the need for air
pollution control, and their approach is to achieve compliance at a reasonable cost rather than
avoid compliance. Local industries now serve on the Advisory Committee and participate in
regulatory development. Their experience and expertise has been directed toward solving air
pollution problems.
                                         11-16
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       To the extent possible, industry has been allowed to choose how it will comply. For
example, if more than one type of control system will properly control emissions, industry can
usually choose the system it prefers. Industry is encouraged to be sensitive to citizen concerns,
to foster good community relations relative to environmental matters and to be acutely aware of
the impact of their emissions on their neighbors.  The County  acknowledges that in the final
analysis it is industry that actually reduces air pollution; the County attempts to provide public
recognition of companies that have exemplary environmental control programs or projects.

       At least one enforcement program in the County encourages increased industry
involvement.  There are three coke plants in the County. These plants have a combined total of
19 operable batteries. Each coke battery is usually inspected at least 30 times a year by County
inspectors.  After the end of each calendar quarter, the County sends each plant manager a
written summary of the inspection results during that quarter along with an offer to "settle" any
violations through payment of penalties and/or taking appropriate remedial actions.  County
technical and inspection staff meet with the plant operators during each quarter to review
performances, identify problem areas, and discuss corrective programs. This program has
contributed to an increased awareness of environmental performance by plant management and
production workers.  In at least one case, the program  has encouraged the use of problem-
solving teams in the plant to achieve performances that are significantly better than those
required by the regulations.
       Results
       In the early 1970s, air quality standards were often exceeded. In one location in the
Monongahela River valley, air quality exceeded the short-term participate standard about every
third day. About 12 times a year the County Health Department issued high air pollution alerts
that required industry throughout the valley to curtail production.

       Enforcement efforts in the early 1970s required diligence. Court action was often
necessary to ensure that companies would live up to the terms of the consent decree they had
signed.  As a result of the Bureau of Air Pollution Control's enforcement activities, industries

                                           11-17
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 throughout the County began to install control equipment and take other measures to curb
 pollution.

        By the mid-1970s, participate emissions had been reduced by 65% and sulfur dioxide
   ;•,       .,    , .'i    ;i      ;    .   •            !            . •• ' .• |   \ •  , .• ' i| i1
 emissions by 57% compared to 1970 levels.  Air quality continued to improve  and, by the late
 1970s, frequent air pollution alerts had ended.

        In the 1980s, air quality has improved further due to continued strict enforcement
 efforts, improved control actions by industry, and a general decline in industrial activity.  By the
 late 1980s, there were no excedances of the annual average and only occasional short-term
 violations usually associated with the breakdown of control equipment.  The three-year average
 ozone standard is exceeded about once a year.

       In 1990, all of Allegheny County was in attainment of federal ambient  air quality
 standards for ozone, carbon monoxide, nitrogen dioxide, and lead, but not for sulfur dioxide and
 inhalable particulate matter.  The annual average standards for inhalable paniculate matter,
 sulfur dioxide, and nitrogen dioxide were met.  However, there were  12 short-term (24-hour)
 excedances for two pollutants in 1990, compared with 14 excedances for three  pollutants in
 1989.
       Factors Influencing Success
         :      I;1 ;;   , I ,         • '                          '        I •       j  i
               ,;•',„[             ,                                ' '      j  :
       Many factors have contributed to successful air pollution control in Allegheny County
   .'..	'   :;!',   !1    . • >•  •     i ':     •      \   .  '    ;: ,:.  ,   i   ,:	'    , , | V! °^  J       J
since 1970.  County regulations clearly defined the standards and measurement methods. These
regulations also provided a variety of enforcement mechanisms that enabled County officials to
effectively take action against violators and to negotiate creative settlements that, while strict,
enabled companies to come into compliance within the limits of their resources. Also, the
Variance Board was important in helping County officials effectively manage enforcement of the
large number of companies that were suddenly in violation when the regulations were passed.
                                          11-18
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       Strong public support for air quality provided a climate that supported enforcement
efforts and created a social pressure for compliance. The establishment of the Air Pollution
Control Advisory Committee created an important forum for cooperation and dialogue between
the various sectors concerned with or affected by air pollution control.  This forum has helped
turn potentially adversarial relationships into a resource i:or effective regulatory development
and program implementation.

       The relationship with the state and federal governments has also been an important
factor. Because the County is enforcing a federally sanctioned and required program,  the
federal government has provided financial resources and technical assistance that have enabled
the Bureau of Air Pollution Control to hire additional personnel and purchase monitoring
equipment. Also, the involvement of the federal and state governments enabled the County to
successfully prosecute some particularly difficult enforcement cases, which  sent a strong
deterrent message to other members of the regulated community.
CASE STUDY 2:
RESPONSIBLE PROCESSING OF DERELICT CARS IN THE
NETHERLANDS
       Introduction

       Because the Netherlands is so densely populated, environmental problems are often
exacerbated.  With the substantial growth in waste generation during the 1960s and 1970s,
available space for waste dumping was rapidly depleted, and existing dump sites began to cause
serious pollution problems.  Consequently, dumping was no longer considered a responsible
disposal option.

       An increasing number of people in the Netherlands have become involved in dismantling
old cars. As a result, the number of derelict cars has risen sharply, leading to three interrelated
problems:
                                          11-19
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                                                                    "in	r
              Environmental Problems;  Liquids (such as motor oil, coolants, and battery acid)
              have contaminated the soil.  Burning of old cars contributed to air pollution.
              The large numbers of old wrecks also caused aesthetic problems.

              Economic Problems. Too many people have become involved in demolishing old
              cars as a side line. Under these circumstances, environmentally responsible
              operations could not be commercially viable.
                  „!'                    .    , ' I   . ,            , '  '! •      'I
              'f  .i1;;       ...    •"            i:. i;   ; '•     ••.,•,.  •'  ;  / .it • ;.••	  	•  .
              Social Problems.  Many of those engaged in dismantling old cars have little
              respect for authority.  The wrecker yards generally operated without a permit and
              did not comply with environmental requirements.  The government tended to
              avoid interventipn since these groups could be expected to respond aggressively.
       The environmental problems could be solved only if the economic and social problems
were tackled simultaneously.  This case study examines how one province in the Netherlands,
the province of North Holland, developed and implemented a plan to solve the environmental
problems associated with derelict cars.
       Regulations


       The Waste Substances Act was enacted in the Netherlands in the late 1970s. Under this
         ;'   ,'ii  ' "    •                   .  !          ;        ::,      i'i • I          ..
Act, companies engaging in waste processing are required to have a permit.  In judging whether
              i. '»    i !            •                                     i
a company may be granted a permit, the authorities consider whether it is technically and

economically feasible for a facility to operate in an environmentally responsible manner. Thus,

this law provided the authority to tackle both the environmental and the economic problems.
       Derelict Cars Plan
       Each province in the Netherlands was asked by the national government to draft a plan
indicating how it would restructure wrecker yard operations.  The province of North Holland
had its first plan ready in 1986.  The plan aimed to promote:
              Efficient and thus commercially viable execution of demolition activities.
                                          11-20
                                                                   	:	i.
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       •      Compatibility of the wrecker yards with land use plans.
       •      Environmentally responsible operations.
       •      As much recycling and reuse of old car parts as possible.

Implementation of the plan was expected to put many yards out of business.  Reduced
competition would enable the remaining yards to do enough business to finance the measures
needed to protect the environment.  The permit system provided an instrument for achieving
these aims, and subsidies were available to help close down unprofitable yards and, in some
cases, to take environmental measures.
       Implementing the Plan in North Holland

       The province's first inventory showed 198 derelict car sites.  That number has since
grown to 210, partly due to reports by area residents and images on aerial photographs.

       Comprehensive permitting followed by enforcement would have been the most important
means for realizing the plan's goals.  However, a shortage of qualified officials, together with
the problems at the wrecker yards, made it likely that it would be many years before all the
yards were permitted.  To prevent further environmental  degradation, the provincial government
and the Public Prosecutor decided to bridge this period by prescribing so-called "rules of
conduct" for the yards (in anticipation of permit requirements at a later date).  These rules
prohibited the burning of wrecks and cables, required that liquids be drained out of and
batteries removed from vehicles, and mandated responsible storage and disposal of oil. The
provincial government informed the wrecker yards in writing about the Waste Substances Act,
the anticipated permit requirements, and the rules of conduct.

       The provincial government also established an intensive inspection program. The
manpower and resources needed were estimated, and a computer system was set up to store and
process  the results. The yards were inspected three times in the first year. The first round of
                                          11-21
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inspection provided information to the wrecker yards; the second and third inspections checked
for compliance with the rules of conduct.
       Figure 11-2 summarizes the results of these inspections. When a violation was found,
the yard received a formal warning and the Public Prosecutor and police were notified.  If
             .    .              ,           ,           .     .        .  | .
violations were found again during the third and following rounds, charges were brought.  The
first inspections showed that only 50 percent of the wrecker yards were in compliance with the
rules of conduct.  Since then this fraction has risen to 75 percent. Charges have been brought
                                                                    i
against 40 companies. Appropriate sanctions are being considered.  Closure of the yards with
repeated violations is one option (under criminal  law); imposition of fines for every day a yard
is out of compliance is another (under administrative law).

       Sixty-five wrecker yards have been granted permits, and are being monitored for
compliance with the permit requirements. Thirty-five yards that applied for permits were
                                      f •         • ., , -i        ;        '
refused, and 70 permit applications are being processed.  Thirty yards were provided with
financial support that enabled them to cease their activities, and an additional 10 stopped on
their own initiative.
       Conclusions
       Dutch authorities have drawn several conclusions from this case study:
              Environmental problems cannot be solved in isolation from other social
              problems.
              Solving these problems requires time, manpower, and perseverance.
              Implementation requires a good written plan with attention to permitting and
              enforcement.
             i    »J"'  '                                                I  :
              The plan must indicate the amount of manpower and resources needed for its
              implementation.
              Activities should be planned and monitored; the approach should be evaluated
              periodically.
                                          11-22
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              Phased introduction of the requirements the companies have to meet raises the
              companies' motivation to comply and allows the manpower available for
              enforcement to be used more effectively.

              Clear and consistent enforcement is essential to achieve compliance; successful
              enforcement requires that agreements be made with the agencies involved (the
              environmental department, Public Prosecutor, and police).
               i , ,,1"!'|      ,,ii|,    ,:  ' „ ,         ,           ,   ,•;,,'!i' .   ,   i '!
              Execution of the plan was aided by the availability of financial support.
CASE STUDY 3:
COLLECTION AND PROCESSING OF HAZARDOUS WASTE FROM
SHIPS IN THE NETHERLANDS
       Introduction


       Liquid wastes from ships, such as used oil, bilge oil and bilge water, slobs, washwater,
    1     '•"'  •  in 'i   .'      •. :     "U I-    '"'/',  '.,:•' 'I ,	    ' ' f,  	litl1 " ' "I  i ' '"i     : .' ii  ,!l, '
and ballast water, can cause major environmental problems if they are not collected and

processed in a responsible way.  In the Netherlands there are 1.7 million tons of wastewater
  i"  ':   - .    i  /.• !'          ' .   ,"  ,.     .;.« ' .1                :  , •;    ., I  . 1
containing oil and 300,000 tons of hazardous waste from both ocean-going ships and ships

confined to the inland waters. Discharge of these wastes into surface water causes a real

environmental burden. Until recently  it was unclear how the ships were getting rid of these

wastes.  There were also no clear regulations that could be used  to tackle this problem.

Analysis of the problem showed that:
              A large number of companies collected this type of waste.  Consequently, the
              market was spread too thinly to allow for commercially viable collection in all
              cases. The collection companies did not always have the financial resources to
              undertake the necessary environmental investments.  Bunker ships played a
              significant role in collecting these wastes; they accepted oily waste streams, often
              free of charge, as a service to their customers. However, it was unclear what
              these bunker ships ultimately did with the hazardous substances they collected in
              this way.  The large number of companies involved made monitoring very
              difficult.
                                                    ,               ,,i         , , ,
              The ships were required to deliver their wastes containing  oil and/or chemicals to
              companies with permits.  However, the permit holders were not required to
              accept the wastes. Only attractive loads were accepted.  High fees were charged
              for acceptance of other wastes. So it was not really surprising that a lot of this
                                          11-24
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              liquid waste was discharged overboard, secretly, at night and during foggy
              weather.
              The large numbers of ships and their mobility made enforcement difficult.
              The ship operators and the government had different opinions about the danger
              posed by the liquid waste.  Ship operators tended to regard waste with a high oil
              content as a product rather than a waste.  If the liquid consisted mainly  of water
              with just a little oil, then the ship operators did not see any problem with
              dumping it overboard.
       The Decree on Collection of Wastes From Ships

       A new regulation was developed to end to this situation.  The decree on "hazardous
wastes from ships" became effective in 1985. Its purpose was to limit the number of permit
holders entitled to collect and process ship wastes, so that waste disposal would be more
economically viable  and thus collectors and processors could afford to conduct their business in
an environmentally responsible manner.  The regulation also made it mandatory for the permit
holders to accept waste. The new permitting system made it possible to distribute the collection
companies all around the country so that ships' operators  could dispose of their waste legally no
matter where they were.  A notification requirement for both the ship's operators and the
collection companies was included as an aid to enforcement.  All these measures were designed
to substantially improve compliance and enforcement.
       Enforcement Approach

       By 1989, the restructuring of the collection and processing system was nearly complete.
The permits had been granted, and the ship operators had been informed about the new
regulation and had received a brochure with the names arid addresses of waste collectors.  The
time was ripe  for intensive enforcement because:

       •      The regulated community understood the requirements.
       •      Inspections would reveal how effective the new collection system was.
                                           11-25
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       Two types of inspections were conducted:
              Inspections of ships to check for illegal discharges and waste deliveries to
              companies without the necessary permit.
              Inspections at the companies collecting and processing waste from ships.
       The shipboard inspections were to be carried out on the water by the river police.  The
government decided to hire a private agency to inspect the collection and processing companies
  '  '         l|i;l    •                       '  :          :         ?:!'      ':!  ! '     '
because:
              There was not enough skilled manpower available within the government at that
              time.
              It was expected that a number of intensive inspection rounds would result in
              radical improvements in compliance, so that less manpower would be needed for
              future inspections.
              The inspections had to be started in the near future.
       An enforcement program was drawn up. The companies to be inspected were divided
into two categories. One group, the collectors and cleaners, which collect for commercial
purposes, would be inspected three times a year. Most ship wastes end up with these
companies.  The other group, the bunker companies, terminals, refineries, and wharves, would
be inspected twice a year.  Collection is a side line for them, often provided as a service to their
  !.'. i          ' '', ii    ||i'!                         !          	     !   ;,      'i  ,      •
clients.
  ;'           ii.    >;           •                                  , .  '  i  1
       The inspections were standardized, primarily to facilitate the subsequent transfer of
inspection activities from the private to the public sector, but also to help ensure clarity and
                                                                    l
effectiveness.  A checklist was developed to ensure standardization.

       During the first year, inspections were performed to promote compliance by increasing
awareness of the program and informing companies  if they were out of compliance. Companies
received written notice of violations.  It was agreed with the Public Prosecutor that charges
                                          11-26
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would be brought in the second year.  A standard charge has been developed for this purpose.
Ninety companies have been inspected two to three times during the past year.
       Enforcement Results

       A comparison of the first and last rounds of inspections of collectors and processors
reveals a sizable improvement in compliance. Enforcement has had the expected effect. Many
companies have applied for and been granted permits, although they do not carry out any
activities in this area or, in the case of the bunker companies, perform them only as a service
for their best clients.  The fees charged for collection and processing were found to vary widely.

       The situation is not nearly as good with respect to prevention of illegal discharges.  Forty
percent of ship operators admit to discharging wastewater containing oil illegally. They still see
no reason to deliver watery waste streams to processors.  They also believe that it is too much
trouble to dispose of their waste legally (because of long waiting times, or even detours).

       They have major problems with the prices they have to pay, especially when they
compare the situation to other countries where waste can be disposed of legally without any
charge.

       The collection structure is not yet sufficient to prevent illegal discharges. The approach
of information-oriented inspections seems to have resulted in more clarity about the
requirements after collection.  There is reasonable compliance with the rules applying to
collection and processing.

       The creation of a free waste receival facility in every port would prevent illegal
discharges. The cost incurred for disposing of these wastes could be covered by the port
mooring fees.
                                           11-27
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CASE STUDY 4:     ENFORCEMENT OF MUNICIPAL WASTEWATER REQUIREMENTS
                    IN THE UNITED STATES OF AMERICA
                                                           i •      ! |  !
       Background
                                                                   i
          , '•;   ;/'      '    '               '                : • 'i .    '•  j !:          :        :
       Under the Federal Water Pollution Control Act of 1972 and subsequent amendments,
the U.S. EPA established specific effluent limitations for municipal wastewater treatment plants.
In general, municipal wastewater treatment plants must provide a minimum of secondary
treatment. During the 1970s and much of the 1980s, the U.S. EPA provided substantial federal
funding (up to 85& of the capital costs) to municipalities for construction of municipal
wastewater treatment facilities.  Nevertheless, by 1977, less than half of all POTWs were in
compliance with the requirements.  A 1979 program to address this problem was unsuccessful.
Two factors contributing to the failure were:

       •     The U.S. EPA readily extended deadlines for compliance.
                ,;i            • ' '  '" ' !'      ' ;     '   '        ,       "'  i i1 '
       •     The U.S. EPA and the states were reluctant to enforce against municipalities that
             had not received federal grants to build new facilities.

       Several government studies revealed a severe noncompliance problem. The U.S.
Congress and the public became increasingly concerned about the problem and, as a result, the
U.S. EPA and the states created a work group in 1982 to develop a new strategy for  dealing
with municipal noncompliance.  This strategy was a sharp contrast to previous policies:
Enforcement would now be the key tool to achieve compliance, and all municipalities were
expected to comply regardless of whether or not they had received federal financial assistance.
This new policy — the National Municipal Policy (NMP) — became effective in January 1984.

       The policy was backed by amendments to the Clean Water Act that greatly restricted the
conditions under which extensions could be granted. The amendments allowed no extensions
beyond July 1, 1988.
                                         11-28
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       Enforcement Activities

       With the initiation of the NMP, enforcement by the U.S. EPA and the states became the
single most effective tool to bring POTWs into compliance. A list of noncomplying facilities
was developed, and the U.S. EPA and the states pursued enforcement against them. By 1987
almost 80% of all NMP facilities (including major and minor facilities) were under an
enforcement order, either administrative or judicial. After this point, all POTWs subject to
enforcement action that had not started construction were dealt with primarily by judicial action,
since these facilities would be incapable of meeting the July 1, 1988, compliance deadline.  By
the second quarter of 1988, almost 20% of all NMP major facilities were subject to judicial
referrals (see Figure 11-3). On average, NMP facilities received 1.5 state or federal
enforcement actions.  This means that almost all NMP facilities have been under some sort of
enforcement action.
       Results
       The NMP was a highly successful program targeted at 1,478 POTWs, many of which
were very large. Over 71% of these 1,478 facilities came into compliance by the July 1, 1988,
deadline for achieving required treatment  (see Table 11-1). As of that date, NMP facilities were
removing an estimated 2.325 million more pounds (1.053 million more kilograms) per day of
conventional pollutants and 15,000 more pounds (6,800 more kilograms)  per day of toxic
pollutants than in 1984.

       The NMP brought the total population of major treatment plants in compliance to 90%.
Even more impressive were the resulting environmental benefits. By 1984, 95% of the total
sewage processed in the United States was receiving secondary or better treatment, affecting 108
million people.

       Some 650 (43%) of the 1,478 targeted facilities contributed to known water quality
problems and, consequently, were required to install advanced wastewater treatment technology.
                                           11-29
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   TABLE 11-1.  COMPLIANCE STATUS OF NMP FACILITIES
                       (as of July 1988)
Total Major POTWs

Not in Compliance by 1984
In Compliance by 1988
On Enforceable Schedule by 1988
      Judicial  ,
      Administrative
Not on Enforceable Schedule by 1988
      Judicial - Filed
      Judicial * Referral, not Filed
. Number

  3,731

  1,478
  1,055
    235
    195
    40
    188
    60
    38
                                                         Percentage
100%
 71%
 13%
                            11-31
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Of these facilities, 525 POTWs, affecting an estimated 8,000 stream miles (12,800 stream
                •. ,.            ",        '      ,1         •: .,...'  j    '     -i
kilometers), met the July 1988 deadline because of the NMP.
       Reasons for Success of the National Municipal Policy

       The NMP owed its success almost entirely to direct enforcement efforts. Before the
NMP was implemented, municipalities typically believed that compliance was achieved by
acquiring grant funds.  Permittees believed that the availability of federal funding was a key part
of determining whether the federal government and the states would enforce the regulations.
Enforcement actions did not follow a consistent pattern until the National Municipal Policy was
developed. The NMP program was successful largely because of several elements in the
enforcement plan:
       «      First, a team of U.S. EPA managers and staff was specifically assigned to make
              the effort succeed.
       •      Second, the media, public, and the Administrator of the U.S. EPA supported the
              NMP.
       •      Third,  the media gave wide coverage to enforcement initiatives and penalty
              results.
                                                                      ,,i
       •      Fourth, a unified state/federal policy was established  at the outset and the states
              generally supported the strong enforcement measures.
             , i   ' 'II          .                    •     '   '      •;       ;i ,|          i
       •      Fifth, the program established a fixed universe of facilities to target and tracked
              individual facilities on a case-by-case basis, continuing to pressure facilities until
              compliance was reached.
       •      Sixth, there was a clear statement and follow-through on the policy that there was
              no link between grant funding and statutory compliance.
             •'•'.    .'•                         • :           •    : •  "••       | :         •:, -
       All these factors produced a strong and effective enforcement presence.  The NMP set
examples and precedents through federal and state enforcement actions and through favorable
rulings on important cases. These cases and the significant penalties associated with them
permanently altered the commonly held attitude  that it was improper for the U.S. EPA and the
states to enforce against municipalities.  For the  first time, enforcement actions and penalties

                                           11-32
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became realistic expected responses to noncompliance, and this created the possibility of future
benefits from deterrence among municipalities.
CASE STUDY 5:
ENFORCEMENT OF MARKETABLE REDUCTIONS OF LEAD IN THE
UNITED STATES OF AMERICA
       Background

       Because of the clear adverse effects of lead on human health, the U.S. EPA embarked
on a program (the Lead Phasedown Program) to reduce the lead content of gasoline. Gasoline
lead was first controlled in the United States in October 1979 by limiting the average
concentration permitted in a refinery's total gasoline pool.  As knowledge of the severity of the
negative health effects of lead grew, the U.S. EPA evaluated the effectiveness of these
regulations, and in October 1982, created tighter standards and a trading system that allowed
refineries requiring less lead than the standard to sell their excess to other less technologically
advanced refineries.

       In 1985, the standard for lead was tightened further, and a banking system was
introduced.  Under the banking provisions, a refiner was allowed to store in a bank account the
difference between the standard and the larger of either actual lead usage or 0.10 gplg (grams
per leaded gallon). The banked lead rights were available for use or transfer to other refiners
or importers during any future quarter through 1987.
       Enforcement Activities

       Compliance was monitored through a self-reporting system.  The U.S. EPA checked the
internal consistency of reports and corroborated them with independent reports from
manufacturers of lead additives. At the end of 1986, the U.S. EPA began conducting the first
full-scale audits of refiners.
                                          11-33
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        In the Lead Phasedown Program, a high degree of voluntary compliance could have
 been expected because detection was more likely based on the required self-reporting which
 could be corroborated with an outside source of information (manufacturers of lead additives)
 to verify refiners' reports. Further, the regulated universe was primarily large refiners that were
 vulnerable to public opinion.  The danger from lead toxicity was becoming a prominent public
 concern, which increased the likelihood of public condemnation of violators.  However^ two
 factors reveal that voluntary compliance was far below a desirable level:
               The initiation of the audit program late in 1986 revealed substantial
               noncompliance.
               Violations fell sharply after the audit program had been in place long enough to
               exert a deterrent effect (see Figure 11-4).
        Distribution of violations through time shows that audits uncovered earlier instances of
 severe noncompliance while deterring new violations. In 1985, before the initiation of audits,
 violations were at their highest level, probably because of the opportunities for illicit profit
 presented by the accumulation period of the banking program. Most of these violations went
 undetected until EPA initiated the audit program in late 1986.

       Many of the violations detected through audits were large, and the enforcement actions
 taken against the violators were given wide publicity.  During 1987 when publicity would have
 drawn the attention of potential violators, there was a sharp decline in new violations to a level
 about one-third of that seen in 1986 (see Figure 11-4). This pattern suggests that the audits and
 the resulting Notices of Violation (NOVs)  successfully reduced new illegal activity through their
 deterrent effect.1  This pattern occurred even though the audit program had become more
 sophisticated in 1987 and therefore more likely to detect violations.

       When audits were initiated,  the penalty policy was changed to make violations much
                                            ! '               ' 1 , ' '      j ,'•','
 more costly to the perpetrator. This also helped deter violators.  For example, 17 NOVs were
    1This drop in detected violations may also be explained in part by the fact that suspected
violators were targeted for audits first. As time went on, refineries were more randomly
selected for audits.
                                           11-34
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issued in 1987 after the audit program was introduced. A total of $54.4 million in penalties had
been issued by the autumn of 1987, 18 times the average of the previous* four years. The largest
settlement during this period was for over $2 million.
       Results
       By the end of 1987, the Lead Phasedown Program as a whole had removed a cumulative
total of 380 billion grams of lead from gasoline production (see Figure 11-5).  Enforcement
actions were responsible for removing 150 million grams of these 380 billion grams in the form
of lead rights that had been permanently removed from the market. This reduction represents
health benefits (see Table 11-2) estimated to be worth about $40 million (in 1983 dollars).
       Deterrence
       The principal elements generally considered necessary for deterrence were strongly
present in this enforcement program.  First, there was a credible likelihood of detection. Before
regulations became complicated enough to require audits, monitoring was easy because the
number of regulated entities was reasonable and lead manufacturing reports were available as
an independent source of information on the extent of compliance. Banking and trading made
detection of violations difficult, which correlated with an increase in violations during this
period. The introduction of individual audits made detection of violations much more probable
once again, and violations dropped.

       Second, the consequences of detection were serious.  With the initiation of audits for
individual operations, a new penalty policy in mid-1986 that raised penalties, and the resulting
high settlements, the consequences of violating the law became quite significant.

       Third and fourth, the audit program ensured a fair and quick response:  audits revealed
violators immediately, using a consistent standard of tests applied to each refinery audited
anywhere in the country. NOVs resulting from the audits received wide publicity in both the

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TABLE 11-2. ESTIMATED HEALTH BENEFITS FROM THE ISO MILLION
    GRAMS OF LEAD REMOVED FROM GASOLINE PRODUCTION
             AS A RESULT OF DIRECT ENFORCEMENT
      Condition

      Cases of adait hypertension
      Myocardial infarctions of adult males
      Strokes - adult males              ,
      Deaths - adult males
      Children with blood levels ol30 ug/dL
      Children with blood levels of 25 ugAJL
      Children with blood levels of 20 ug/ttL
      Children with blood levels

~ raicrograras per deciliter
                                                     .,,          -
                                                 Estimated Number of
                                                    Oases Eliminated
                                                    h         ' .»•"•     .-
                                                 '  *'  '  7,417
                                                        '  '22
                                                          202
                                                          674
                                                        2,225
                                                        6,859
                             11-38
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public media and trade press. For an industry dominated by large companies vulnerable to
public opinion, negative publicity was very effective. The combined presence of these elements
created the necessary environment for successful deterrence.
       Conclusion

       The Lead Phasedown Program forced refineries to reduce lead use in gasoline through a
series of tighter regulations between 1979 and 1985.  At the same time, the program introduced
new methods of compliance including trading of lead rights, and later, banking of these rights —
methods of compliance that offered flexibility, but made detection of violations more difficult.
Although the emission reductions from direct enforcement were large, the sharp decline in new
violations after 1986 suggests that enforcement had an even larger impact through deterrence.
                                           11-39
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_
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                             12. INFORMATION RESOURCES


The following list of information resources includes references that were used in writing this text, as

well as other references on enforcement that may be of interest to the reader. Additional

references will be added periodically.


INTERNATIONAL SOURCES

U.S. Environmental Protection Agency and Netherlands Ministry of Housing, Physical
       Planning and Environment.  1990.  International Enforcement Workshop Proceeding?.  Utrecht,
       The Netherlands, May 8-10. This two-volume publication contains papers presented at the
       International Enforcement Workshop held from May 8-10 in Utrecht, the Netherlands.
       Workshop participants included environmental officials from foreign countries and
       international organizations.  Papers were presented by these participants on domestic
       enforcement program strategies, tools and management systems; domestic
       intergovernmental enforcement relationships; international transboundary pollution
       problems; and enforcement of international agreements. Volume I is 349 pages long and
       contains 22 papers.  Volume II is  133 pages long and contains additional papers, remarks
       delivered at the workshop, a summary of the discussions, and a list of speakers and
       participants. Copies can be obtained from:
       Compliance and Policy Planning Branch
       Office of Enforcement (LE-133)
       U.S. Environmental Protection Agency
       401 M Street, SW
       Washington, DC 20460
       USA
       (Telephone: 1 202 260 7550)
Netherlands Ministry of Housing,
 Physical Planning and Environment (VROM)
Hoofdinspecteur
Postbus 450
2260 MB Leidschendam
The Netherlands
(Telephone: 31 70 317 4174)
 Organisation for Economic Co-Operation and Development, Environment Committee.  October 29,
        1986. Improving the Enforcement of Environmental Policies. ENV(86)20. This 53-page
        document focuses on enforcement in environmental quality management and how it can be
        unproved.  The differences in environmental enforcement approaches among OECD
        countries are discussed.  Three case studies on enforcement in the Netherlands, United
        States, and United Kingdom were also prepared for OECD:

        •     Lee, Norman. 1984. The Enforcement of Environmental Policies in toe United
              Kingdom.  ENV/ECO/84.5.

        •     Suurland, Jan. June 1984. Regulatory Reform of Environmental Policy in the
              Netherlands.  Background paper for the OECD International Conference on
              Environment and Economics.

        •     Wasserman, Cheryl E.  1984. lite Enforcement of Environmental Policies in the United
              States. ENV/ECO/84.6.
                                            12-1
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        Copies of OECD documents can be obtained from:
                1                                                     i
               Organisation for Economic Co-operation and Development
               Environment Directorate
               2, rue Andre-Pascal
               75775 PARIS CEDEX 16
               France
               (Telephone: 45 02 77 00)


 International Chamber of Commerce. June 1989.  Environmental Auditing.  Publication 468, ISBN
        No. 92-842-1089-5. This 25-page publication gives the ICC's position on environmental
        auditing, and discusses the meaning of the  concept of environmental auditing, the
        responsibility for audits, and the methodology that should be followed when conducting
        audits.  Available in English, French,  German, and Spanish.  Copies can be obtained from:

               International Chamber of Commerce
               The World Business Organization
               38, cours Albert 1"
               75008 Paris
               France
               (Telephone: 49 53 28 28)


 SOURCES FROM THE NETHERLANDS

 Gerardu, Jo J.A.  October 1989.  Experimental Projects Development Enforcement Chemical Waste Act.
       This 10-page document discusses the experimental projects in the Netherlands that were
       executed within the framework of the Multi-year Intensifying Programme Enforcement
       Chemical Waste Legislation. (*)

 Gerardu, Jo J.A.  September 1989.  Enforcement Training. This 6-page document provides an
       overview of training to improve enforcement in the Netherlands. Participants have included
       Ministry, provincial, and municipal officials, the police, and water quality controllers. (*)

van Ommen, Gees F. October 1989. Compliance Monitoring of National Environmental Legislation.
       This 10-page document discusses monitoring, by the Environmental Inspectorate of the
       Netherlands, of compliance with the Hazardous Waste Act, the Herbicides  Act, and the
       Toxic Substances Act Three kinds of monitoring are discussed:  visual inspection, sampling,
       and a thorough audit-like inspection. (*)

Ministry of Housing, Physical Planning and the Environment,  Chief Inspectorate for Environmental
       Hygiene, Main Department for Enforcement of Environmental Legislation. April 1989.
       Main Points of the Third Progress Report on Developments with Regard to the Enforcement of
       Environmental Legislation.  This 24-page document summarizes the Third Progress Report on
       the Development of Enforcement of Environmental Legislation, presented to the Second
       Chamber of Parliament of the Netherlands in October 1988.  Available in Dutch only. (*)
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Ministry of Housing, Physical Planning and the Environment, Chief Inspectorate for Environmental
       Hygiene, Main Department for Enforcement of Environmental Legislation. April 1989.
       The Fourth Prog-ess Report on Developments with Regard to the Enforcement of Environmental
       Legislation. This document summarizes The Fourth Progress Report of the Development of
       Enforcement of Environmental Legislation, presented to the Second Chamber of Parliament
       of the Netherlands in August 1991. (*)

Lefevre, Hans E.C. October 1989. Continued Enforcement Intensification Programme (VHIP). This
       6-page document discusses the so-called VHIP.  In 1984 the government of the Netherlands
       began intensifying environmental law enforcement, starting with hazardous waste as a top
       priority.  After several years the need was felt to extend enforcement priorities and activities
       to other sectors.  The VHIP focuses on improving enforcement (through structuring,
       intensification, and integral multimedia approaches) and setting enforcement priorities. (*)

Lefevre, Hans E.G. September 1990.  Enforcement of Environmental Regulations in the Netherlands,
       in:  International Environmental Reporter, volume 13, number 10, pages 401-408. This article
       reviews the development of the enforcement of environmental legislation in the Netherlands
       within the context of the present state of the country's environmental problems and policies,
       and the importance of enforcement in the regulatory chain. (*)

National  Institute of Public Health and Environmental Protection.  March 1989. Concern for
       Tomorrow, A National Environmental Survey, 1985-2010. This 12-page document gives an
       overview of the national environmental situation in the Netherlands and an extrapolation to
       the year 2010. (**)

Ministry of Housing, Physical Planning and the Environment, May 1989.  To Choose or to Lose:
       National Environmental Policy Plan. This 258-page document describes the Netherlands'
       medium-term strategy for environmental policy. (***)

Ministry of Housing, Physical Planning and the Environment.  May 1989.  National Environmental
       Policy Plan Phis.  In conjunction with the National Environmental Policy Plan, this 107-page
       document sets forth the main lines of environmental policy for the 1990s:  the strategy and
       objectives and, for the period 1990-1994, the measures which are to be taken to bring
       sustainable development within reach in the Netherlands. (***)

Copies can be obtained from:

(*)    Netherlands Ministry of Housing, Physical Planning and the Environment
       Chief Inspectorate for Environmental Hygiene
       Main Department for Enforcement of Environmental Legislation
       P.O. Box 450
       2260 MB Leidschendam
       The Netherlands
       (Telephone:  3170-3172618)
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 (**)   National Institute of Public Health and Environmental Protection
        P.O. Box 1
        3720 BA Bilthoven
        The Netherlands
        (Telephone: 31 30-749111)

 (***)  Netherlands Ministry of Housing, Physical Planning and the Environment
        Department for Information and International Relations
        P.O. Box 20951
        2500 EZ The Hague
        The Netherlands
 SOURCES FROM THE UNITED STATES

 U.S. Environmental Protection Agency, Office of Enforcement  May 1984. Agencywide Compliance
        and Enforcement Strategy and Strategy Framework for EPA Compliance Programs.  This 50-
        page document establishes the U.S. EPA's strategic frameworks for improving
        environmental compliance and enforcement programs.

 U.S. Environmental Protection Agency, Office of Enforcement  February 1991. Enforcement Four-
        Year Strategic Plan:  Enhanced Environmental Enforcement for the 1990s.  21E-2001.  This 77-
        page document is the result of a collaborative effort between the U.S. EPA's Office of
        Enforcement and the Agency's media compliance programs.  It provides a plan for
        maintaining a strong and successful environmental enforcement program in the United
        States throughout the 1990s and into the next century.

 U.S. Environmental Protection Agency, Office of Enforcement  February 1989. Basic Inspector
        Training Course: Fundamentals of Environmental Compliance Inspections.  This lengthy text
        discusses the legal, technical, administrative, and communications aspects of performing
        inspection work for U.S. EPA-administered statutes. It is designed for use with a classroom
        training course.

 U.S. Environmental Protection  Agency. October 1990.  RCRA Civil Penalty Policy.  This 110-page
        paper discusses the methods that the U.S. EPA uses to assess civil penalties for
        environmental violations under the U.S. Resource Conservation and Recovery Act (RCRA).
        (Enforcement penalty policies and guidance for other U.S. EPA environmental programs
        are available and can be obtained from the address below.)

U.S. Environmental Protection Agency, Office of Enforcement August 25,  1986. Revised Policy
       Framework for State/EPA Enforcement Agreements. This 46-page document outlines EPA's
       policy framework for implementing an enforcement relationship between the states and the
       federal government It  discusses implementing the framework through national program
       guidance and regional/state agreements.

U.S. Environmental Protection Agency, Office of Enforcement  February 25, 1991.  Interim Policy
       on the Inclusion of Pollution Prevention and Recycling Provisions in Enforcement Settlements.
       This 12-page memorandum describes U.S. EPA's policy to encourage the use of pollution
       prevention and recycling in enforcement settlements.
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U.S. Environmental Protection Agency, Office of Enforcement.  February 12, 1991. Policy on the
       Use of Supplemental Environmental Projects in EPA Settlements. This 13-page memorandum
       describes the  U.S. EPA's policy to include, in enforcement settlements, projects that
       remediate the adverse public health or environmental consequences of the violations at
       issue.

U.S. Environmental Protection Agency, Office of Enforcement.   November 14, 198_. Final EPA
       Policy on the Inclusion of Environmental Auditing Provisions in Enforcement Settlements.  This
       68-page document provides guidance on selecting enforcement cases in which the U.S. EPA
       will seek to include environmental auditing provisions in the settlement terms. This
       document also includes U.S. EPA's Policy Statement on Environmental Auditing. (Other
       resource documents on environmental auditing are available from the U.S. EPA at the
       address below.)

U.S. Environmental Protection Agency, Office of Enforcement.  November 1990. Summary Report:
       Enforcement Effectiveness Case Studies.  This brief report provides additional information
       about case studies 4 and 5 described in Chapter  11 of this text.

U.S. Environmental Protection Agency, Office of Enforcement.  September 1990. Environmental
       Criminal Enforcement: A Law Enforcement Officer's Guide.  This  27-page booklet explains the
       structure of EPA's environmental law enforcement apparatus, as well as the methods of
       enforcement and how they function. It emphasizes the role of law enforcement officers in
       environmental enforcement.

U.S. Environmental Protection Agency, Office of Enforcement.  March  1990. Environmental
       Enforcement:  A Citizen's Guide. This 33-page booklet is similar  to the Law Enforcement
       Officers' Guide, described above;  however, this document emphasizes the citizen's role in
       environmental enforcement.

U.S. Environmental Protection Agency. 1990.  Enforcement in the 1990s  Project.  This report presents
       the findings and recommendations from the U.S. EPA's Innovative Enforcement Work
       Group. Innovative tools for environmental enforcement, such as environmental auditing,
       alternative dispute resolution, and risk-based pollution preventative enforcement are
       discussed.

U.S. Environmental Protection Agency, Office of Water. 19	. Guidance for Developing Control
       Authority Enforcement Response Plans.  (Enforcement response policies and guidance for
       other U.S. EPA environmental programs are available and can be obtained  from the
       address below.)

Wasserman, Cheryl E.  1992. Federal Enforcement: Theory and Practice. Pages 21-51 in:
       T.H. Tietenberg, ed., Innovation in Environmental Policy: Economic and Legal Aspects of
       Recent Developments in Environmental  Enforcement and Liability.  Part of Wallace E. Oates,
       ed., New Horizons in Environmental Economics Series, Edward Elgar Publishing Ltd., Grower
       House, Cross Road, Aldershot, Hampshire, England. This paper presents a review (in the
       context of environmental economics) of the theories that local,  state,  and federal regulators
       and law enforcement personnel use in  implementing enforcement programs.  The
       differences between theory and the reality of implementation practices also are discussed.
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For a copy of the U.S. publications or for further information, write to:

       Compliance and Policy Planning Branch
       Office of Enforcement (LE-133)
       U.S. Environmental Protection Agency
       401 M. Street, SW
       Washington, DC 20460
       USA
       (Telephone:  1 202 260 7550)
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