International Network for Environmental Compliance and Enforcement
Principles of Environmental
Compliance and Enforcement
Handbook
International Network for
Environmental Compliance and Enforcement
April 2009
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Principles of Environmental Compliance
and Enforcement Handbook
International Network for Environmental Compliance and Enforcement
April 2009
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ABOUT THE INTERNATIONAL NETWORK FOR ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT (INECE)
The International Network for Environmental Compliance and Enforcement (INECE) is a
partnership of more than 3,000 government and non-government enforcement and compliance
practitioners from more than 150 countries. INECE's goals are to raise awareness of
compliance and enforcement; develop networks for enforcement cooperation; and strengthen
capacity to implement and enforce environmental requirements.
INECE promotes the use of regulatory and non-regulatory approaches to increase
compliance with and enforcement of environmental laws and regulations that promote the
sustainable use of natural resources and the protection of ecosystem integrity at the global,
regional, and national levels.
For more information, visit our website at www.inece.org.
ORDERING INFORMATION
USEPA's print publications are available through the National Service Center for
Environmental Publications (NSCEP), and USEPA's digital publications are stored in the
National Environmental Publications Internet Site (NEPIS) database.
You can search and retrieve, download, print and/or order only USEPA publications,
free of charge, from this site: http://www.epa.gov/nscep/.
To obtain a copy of this volume, provide its title and document number 300F09002. You
may contact:
NSCEP Toll Free: 1-800-490-9198
NSCEP Fax: 1-301-604-3408
NSCEP Email: nscep@bps-lmit.com
Web Site: www.epa.gov
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ACKNOWLEDGM ENTS
Many individuals and organizations contributed time and energy to develop the second
edition of the Principles of Environmental Compliance and Enforcement Handbook. Special
mention goes to Durwood Zaelke, Tim Whitehouse, Jo Gerardu, and Thomas Higdon of the
INECE Secretariat, Davis Jones of the U.S. Environmental Protection Agency, Ken Markowitz of
the law firm Akin Gump Strauss Hauer & Feld LLP, and Meredith Reeves of the consulting firm
Earthpace. Other contributors include Angela Bularga, Tom Maslany, Mike Stahl, and members
of the INECE Executive Planning Committee. This work would also not have been possible
without the help of Heather Callan, Kirk Herbertson, Veronique Millon, David Newman, Adam
Pienciak at the INECE Secretariat.
The first edition of this handbook was developed in 1992 by the USEPA in consultation
with the Netherlands' Ministry of Housing, Spatial Planning and Environment (VROM), the
Polish Ministry of Environmental Protection, Natural Resources and Forestry, and the Katowice
Ecology Department in Poland.
The principal author of that edition was Cheryl Wasserman of USEPA, with contributions
from Jo Gerardu of VROM. This new edition relies heavily on their pioneering work.
UPDATES TO THIS HANDBOOK
This text can be periodically updated to include new enforcement developments and
examples from INECE participants. Readers and users are encouraged to send their ideas,
examples, and comments to the Secretariat of the International Network for Environmental
Compliance and Enforcement at
2300 Wisconsin Avenue, NW, Suite 300B
Washington, D.C. 20007, USA
inece@inece.org
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TABLE OF CONTENTS
ABOUT THE INTERNATIONAL NETWORK FOR ENVIRONMENTAL COMPLIANCE
AND ENFORCEMENT I
ORDERING INFORMATION I
ACKNOWLEDGMENTS II
UPDATES TO THIS HANDBOOK II
TABLE OF CONTENTS Ill
1. INTRODUCTION 1
2. OVERVIEW OF COMPLIANCE AND ENFORCEMENT PROGRAMS 3
2.1 Introduction 3
2.2 Context for Enforcement 3
2.3 Benefits of Compliance and Enforcement 5
2.4 Types of Compliance Activities 7
2.5 Compliance Monitoring 7
2.6 Enforcement 8
2.7 Theories of Compliance Behavior 8
2.8 Challenges in Developing an Effective Program 9
3. PRINCIPLES OF EFFECTIVE COMPLIANCE AND ENFORCEMENT 11
3.1 Introduction 11
3.2 Environmental Results and Shared Responsibility 11
3.3 Goals and Strategies 12
3.4 Good Governance, Rule of Law, and Compliance 12
3.5 Structure and Resources 13
3.6 Continuous Evaluation and Improvement 14
4. SELECTING A MANAGEMENT APPROACH 15
4.1 Introduction 15
4.2 Approaches to Environmental Management 15
4.3 Finding the Right Mix 17
4.4 Making the Mandatory Approach Enforceable 19
5. DESIGNING EFFECTIVE REQUIREMENTS 21
5.1 Introduction 21
5.2 Basic Legal Issues 21
5.3 Balancing Stringency and Feasibility 24
5.4 Effective General Requirements 24
5.5 Facility-Specific Requirements 29
5.6 Ensuring Effectiveness 29
5.7 The Permitting and Licensing Processes 31
5.8 Involving Stakeholders 32
5.9 Coordinating with Other Programs 34
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6. COMPLIANCE PROMOTION 35
6.1 Introduction 35
6.2 Compliance Assistance 35
6.3 Compliance Incentives 37
6.4 Market-Based Mechanisms 41
7. MONITORING COMPLIANCE 43
7.1 Introduction 43
7.2 Inspections 44
7.3 Audits versus Inspections 45
7.4 Types of Inspections 46
7.5 Steps in the Inspection Process 47
7.6 Building an Effective Inspection Program 52
7.7 Self-monitoring, Self-recordkeeping, and Self-reporting 57
7.8 Citizen Monitoring 60
7.9 Area Monitoring 63
8. ENFORCEMENT 65
8.1 Introduction 65
8.2 The Enforcement Process 65
8.3 Designing an Enforcement Response Policy 67
8.4 Types of Enforcement Responses 68
8.5 Choosing Between Enforcement Responses 74
8.6 Negotiations and Settlements of Disputes 82
8.7 Citizen Enforcement 86
9. BUILDING EFFECTIVE PROGRAM INFRASTRUCTURE 91
9.1 Introduction 91
9.2 Designing Compliance Assurance Institutions 91
9.3 Dividing Responsibilities Among Levels of Government 96
9.4 Role of Civil Society in Compliance Assurance 99
9.5 Facilitating International and National Networking 101
10. MEASURING AND MANAGING PERFORMANCE THROUGH COMPLIANCE AND
ENFORCEMENT INDICATORS 104
10.1 Introduction 104
10.2 Stage 1. Identifying Indicators 105
10.3 Stage 2: Developing Indicators 111
10.4 Stage 3: Using Indicators 113
10.5 Common Lessons 115
11. REFERENCES 116
IV
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1. INTRODUCTION
This handbook outlines some of the important considerations in designing, implementing
and evaluating effective environmental enforcement and compliance programs. It serves as
background reading for the training course on the Principles of Environmental Enforcement and
Compliance. In 1992, the USEPA created this course in response to a request by Poland's
Ministry of Environmental Protection, Natural Resources and Forestry. The Netherlands'
Ministry of Housing, Spatial Planning and Environment contributed significantly to the
development of this course. Since its first delivery in 1992, the Principles course has been given
hundreds of times in countries throughout the world.
Successful implementation of environmental requirements requires significant effort and
forethought. Changes in behavior are difficult to accomplish on both a societal and personal
level. No one formula exists for achieving compliance. There is merely trial, evaluation, and
adaptation to find the most effective compliance strategies for any given situation.
Nevertheless, a reliable framework for designing compliance assurance programs has emerged
based on the experiences of countries around the world. The information in this handbook
derives from these experiences.
Chapter 2 provides a basic overview of the concepts behind successful enforcement and
compliance programs. This overview briefly examines: (1) the specific types of compliance and
enforcement programs; (2) how compliance and enforcement programs fit into the elements of
an environmental management cycle; (3) the benefits that derive from an effective compliance
and enforcement program; (4) the theories of compliance behavior and why it is important to
understand these theories when developing a compliance strategy; and (5) some of the general
difficulties and obstacles that may exist to the development of an effective program.
Chapter 3 describes twelve principles of effective environmental compliance and
enforcement programs. These principles are divided into five sections: (1) a commitment to the
environment; (2) vision, goals and strategies; (3) governance and the rule of law; (4) structure,
responsibility and resources; and, (5) continuous evaluation and improvement. While the
strength of any one principle may vary based on cultural, economic, political and social needs of
a particular country or region, together they help form the foundation of a successful
environmental compliance and enforcement programs.
Chapters 4 through 10 build on issues discussed in Chapter 2 and 3. Chapter 4
discusses three different overlapping management approaches - voluntary, market-based and
mandatory - that make up the framework underlying most environmental programs. Chapter 5
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looks at some of the issues to consider when designing effective requirements. Chapter 6
provides an overview of what makes up typical compliance assistance and compliance incentive
programs. The importance of compliance monitoring is discussed in Chapter 7, while Chapter 8
examines the basic elements of enforcement programs and types of enforcement responses.
Chapter 9 discusses how organizations build effective infrastructure and inter-organizational
communication, and how to do so in the context of an environmental management program.
Chapter 10 examines ways to develop, measure, use and interpret environmental compliance
and enforcement indicators.
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2. OVERVIEW OF COMPLIANCE AND ENFORCEMENT PROGRAMS
2.1 Introduction
Over the past forty years, environmental law has been central to government efforts to
implement a wide range of environmental programs designed to protect air, water, natural
resources, wildlife and public health. Countries throughout the world use environmental law to
help address problems such as the discharge of pollutants into the environment, the protection
of flora and fauna, the handling, storage and disposal of solid and hazardous wastes, the
application of pesticides, preventing air contamination, and protecting the quality and availability
of clean water.
However, simply having environmental laws in place is not enough to address these
problems. Governments must find ways to ensure that the regulated community meets the
requirements put forth in the environmental laws and their implementing regulations. Successful
strategies will both encourage and compel behavioral changes within the regulated community
that are needed to achieve compliance.
This chapter provides a basic overview of the concepts behind successful enforcement
and compliance programs. The first section looks at the context for compliance and
enforcement as a part of the environmental management cycle. The second section examines
the benefits of an effective compliance and enforcement program. The third section discusses
types of compliance activities. The fourth section discusses theories of compliance behavior.
The final section examines some of the general difficulties and obstacles that may exist to the
development of an effective program.
2.2 Context for Enforcement
Environmental compliance and enforcement programs occur as part of a comprehensive
environmental management cycle. This cycle typically involves community recognition of
certain environmental problems and governmental acceptance of the need to address these
problems. From there it often leads to government establishing specific environmental goals to
address these problems and selecting a management approach or approaches to reach those
goals. When developing mandatory requirements, government must consider the legal basis for
these requirements and establish compliance and enforcement programs to ensure that the
regulated community adheres to these requirements. Once implementation begins, evaluations
and adjustments must be made to continually update and improve the programs.
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Figure 2-1 presents the environmental management cycle. This process is explained in
more detail below the figure.
FIGURE 2-1: THE ENVIRONMENTAL MANAGEMENT CYCLE
Environmental
Quality
Sustainable
Development
Protect Human
Health
Reduce Risk
Prevent Pollution
Management
Approach
Voluntary
Market Based
Mandatory
Developing
Requirements
Constitution
Laws & Legislation
Regulations
Permits
Licenses
Guidance and Policy
Compliance and
Enforcement
Compliance
promotion
Compliance
monitoring
Enforcing the
requirements
Building Effective
Program
Program Evaluation
2.2.1 Awareness and Strategic Planning
The environmental management cycle starts with awareness that there is an
environmental problem and adequate support to address the problem. Once there is
awareness and support for action, program proponents must begin strategic planning and goal
setting. These goals may include reducing environmental risk, preventing pollution, or cleaning
up past contamination.
2.2.2 Selecting a Management Approach
Once program goals are set, the focus moves to selecting the most suitable
management approach or combination of approaches, in order to achieve program goals. For
purposes of this book, these approaches are categorized as voluntary, market-based, and
mandatory. These approaches are discussed in more detail in Chapter 4.
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2.2.3 Developing Effective Requirements
The selected management approach may require specific laws or regulations. Laws and
regulations, in turn, include "requirements" that clearly define specific practices and procedures
to directly or indirectly reduce or prevent pollution. Effective requirements demand that specific
things be done or outcomes reached. Chapter 5 discusses the creation of effective
environmental requirements to implement the selected management approach.
2.2.4 Evaluation and Adjustment
Once implementation begins, another important phase needs to be initiated—evaluation
of the impact of the program through the use of compliance and enforcement indicators. This
part of the environmental management cycle is often overlooked or not given the attention that it
warrants. Evaluation leads to greater awareness of how the program is addressing the targeted
environmental problem, which in turn, through feedback, leads to better planning and
implementation. The evaluation process, including the development of compliance and
enforcement indicators, will be discussed in Chapter 10.
2.3 Benefits of Compliance and Enforcement
A compliance and enforcement program that is effective and part of a larger
environmental management effort will bring a broad range of benefits to society. A well-
designed environmental compliance and enforcement program will create both public and
private value.
Compliance creates "public value" when it promotes the rule of law and good
governance; ensures fairness and strengthens the credibility of environmental requirements;
protects the goods and services provided to a society by a well-functioning ecosystem; and
protects public health. Compliance creates "private value" when it increases investor
confidence by reducing business risks; stimulates innovation and increased competitiveness;
and creates new jobs and markets.1 (See Box 2-1).
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BOX 2-1: CREATING VALUE THROUGH COMPLIANCE
Compliance Creates "Public Value"
Promotes the Rule of Law and Good Governance: The rule of law is essential to good
governance and sustainable development. When individuals or organizations ignore an
environmental requirement, they are not just hurting the environment, but also damaging the
rule of law in that jurisdiction. Corruption and legal uncertainty foster widespread non-
compliance, environmental or otherwise, and vice-versa, eroding the norms and values that
constitute healthy societies.
Ensures Fairness and Strengthens the Credibility of Requirements: A consistent and effective
compliance and enforcement program helps ensure that actors affected by environmental
requirements are treated fairly. Without an effective compliance assurance program, actors
who violate environmental requirements may benefit compared to actors who choose to
comply. Ultimately, actors will be more likely to comply if they perceive that the requirements
are fair and do not place them at a competitive disadvantage.
Protects Goods and Services: Compliance assurance protects natural resources so they can
continue to provide valuable goods and services to society, including renewable natural
resources, climate stability, clean air, and fresh water. A recent study, for example, found that
eco-system services amounted to roughly €22 billion or 25 percent of the Scottish GDP.
Protects Public Health: Compliance assurance helps protect public health. In Europe alone, air
pollution is responsible for over 300,000 premature deaths each year. Pollution imposes a
substantial social cost in terms of increased health care expenses and employee absenteeism.
Strong compliance assurance helps improve public health, economic productivity, and the
environment.
Compliance Creates "Private Value"
Increases Investor Confidence by Reducing Business Risks: Widespread non-compliance is
often tied to corruption and legal uncertainty, which can have devastating impacts on economic
development. Firms will be less willing to make investments and assume risks when their legal
rights and responsibilities remain uncertain. An effective compliance assurance program
promotes certainty through the rule of law, thereby helping foster an attractive investment
climate.
Stimulates Innovation and Improves Competitiveness: Environmental requirements can often
save businesses money by stimulating innovation, leading to improvements in product design
and manufacturing processes. These innovations improve pollution prevention strategies and
energy efficiency efforts and result in reductions in waste. Numerous studies indicate that
countries with high environmental standards often have market-leading firms and better
economic performance than those with lower standards.
Creates New Jobs and Markets: Compliance assurance creates jobs in new industries. The
most visible beneficiary is the environmental goods and services sector, which includes,
among other things, pollution abatement technology, waste management, organic products,
eco-certified resources, and eco-tourism. These are among the fastest growing industries in
the world.
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2.4 Types of Compliance Activities
Governments have developed a number of regional and context appropriate policies and
programs to encourage and compel the behavioral changes needed to achieve compliance.
Although definitions and ways of categorizing these policies and programs vary from country to
country, they generally involve four major categories of activities: compliance assistance,
compliance incentives, compliance monitoring, and enforcement. Most often effective
implementation will involve some combination of these four categories of activities.
Note: In this Handbook and in other contexts, the terms "compliance promotion" and
"compliance assurance" are used to categorize specific compliance programs. Compliance
promotion refers to both compliance assistance and compliance incentives programs.
Compliance assurance refers to all compliance-related activities, including enforcement.
2.4.1 Compliance Assistance
Compliance assistance encourages observance of the law through outreach, education,
and other promotional activities. Compliance assistance activities are designed to improve
compliance by explaining how to comply with legal and regulatory requirements.
2.4.2 Compliance Incentives
Compliance incentives are a set of policies and programs that provide concrete benefits
to those organizations that meet certain compliance objectives. Examples include programs that
reward top-performers or that reduce or waive penalties for facilities that voluntarily discover,
promptly disclose, correct non-compliance, and prevent future environmental violations.
Information campaigns and market-based mechanisms can also include compliance incentives.
2.5 Compliance Monitoring
Compliance monitoring is one of the key components government agencies and others
use to ensure that the regulated community obeys environmental laws and regulations through
on-site visits by qualified inspectors, public reporting of violations, and by reviewing information
submitted to it by the regulated industry as part of self-monitoring and reporting programs.
Compliance monitoring is generally considered to include both self-monitoring by the regulated
entity, and governmental inspections and investigations.
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2.6 Enforcement
Enforcement refers to actions taken by the government against violators to compel
compliance the law. These provisions generally give a governmental entity authority to impose
sanctions, in either the administrative, judicial, or criminal forum, and require the violator to
come into compliance with the law. Some statutes contain provisions that require a violator to
remedy environmental damage caused by the violations or that allow the government to clean
up the damage and recover the cost from the violator.
2.7 Theories of Compliance Behavior
The theories underlying these programs reflect two different government approaches to
achieving compliance, often referred to colloquially in English as the carrot and the stick, which
together both encourage and compel behavioral change. The carrot (compliance promotion
activities) and the stick (the threat of an enforcement action against non-compliers) are based
on the rationalists and normative models of behavior.
The rationalist theory posits that regulated actors follow the logic of consequence. Put
simply, everyone acts to maximize their own self-interest. If it is "cheaper" to violate an
environmental requirement, then regulated actors will do so. Therefore, rationalists argue that
policies must "deter" this behavior by raising the "costs" of non-compliance.2 Accordingly, they
advocate deterrence-based enforcement. Generally, for a policy to have a deterrent effect, the
individual or organization must believe that:
• There is a high probability of being caught.
• The response to violations will be swift, certain, and fair.
• The punishment will be severe enough to outweigh the benefits of non-compliance.3
Deterrence may be enhanced either by expanding monitoring activities, improving
enforcement capacity to investigate and prosecute violations, raising penalties, or increasing
awareness of enforcement.
Normative theory posits that regulated actors follow the logic of appropriateness and
often act in good faith. Compliance occurs (or does not occur) largely because of the regulated
actor's "capacity" (e.g. knowledge of the rules, and financial and technological ability to comply)
and "commitment" (e.g. perception that the rule is fair).4 Accordingly, these theories call for
more compliance promotion in the form of assistance, incentives, and other activities.
The rationalist and normative models represent opposite ends of the spectrum and each
provides useful insights into the types of behavior that lead to compliance. Regulated
communities everywhere generally can be divided into three general categories: (1) those who
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will not comply at all unless they are forced to; (2) those who are "impressionable," and might
comply if presented with incentives, knowledge, or capacity to do so; and (3) those who will
cooperate in all circumstances. Which one of these categories predominates will vary from
country-to-country and can help inform individual country decisions about what mix of
compliance promotion and enforcement activities to stress in efforts to promote the rule of law
and the protection of public health and the environment.
2.8 Challenges in Developing an Effective Program
Unlike twenty or thirty years ago, most countries now have at least some environmental
programs in place. Efforts to build effective compliance assurance programs therefore are not
starting from scratch. Today the question usually is how to build upon and improve existing
efforts.
How should such efforts at improvement begin? How can new responsibilities and
efforts be handled with limited program resources? What elements of a compliance assurance
program should be stressed? What legal, policy and technical drivers or barriers are moving or
slowing these efforts? How should programs evolve over time, as policy makers evaluate the
success of previous strategies, and as technological and economic developments suggest new
solutions? These are many of the challenging questions that politicians, legislators, regulators
and interested members of the public may ask as a government attempts to improve its
environmental compliance and enforcement programs.
In many countries, compliance and enforcement programs face significant barriers. The
OECD's publication, Guiding Principles for Reform of Environmental Enforcement Authorities in
Transition Economies of Eastern Europe, Caucasus and Central Asia,5 outlines some of the
regional challenges faced by environmental enforcement authorities, problems that are common
in many parts of the world. The report states:
"The transition period [from communism] generated new, and accentuated old
problems of environmental enforcement systems. These include, for instance, a
greater diversity in the regulated community and lobbying by powerful groups or
individuals for special priviledges. A number of studies have shown that
enforcement has not received sufficient attention from decision-makers, and low
environmental performance and violations of environmental laws has been
widespread. Important factors that nourished non-compliance were the slow pace
of governance and economic reforms, the complicated legal framework and poor
economic situation, societies failure to believe in fair regulation and the erosion of
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the rule of law. Limited powers, scarce financial and human resources of
enforcement agecies are also major causes of low effectiveness in ensuring
compliance.6"
There are no standard ways to address these complex and difficult issues. In some
countries, efforts to improve compliance assurance programs must be closely tied to efforts to
improve the rule of law and governance, in others it may require placing greater emphases on
education and awareness, while in others it may be a question of finding new resources or using
exisiting resources more efficiently, and in still others, a heavier emphasis on legal sanctions
that compel behavioural changes and punish violators may be needed to demonstrate
increased importance of the law. In many countries it will be a combination of all of these, and
more.
Although each country and jurisdiction faces a unique set of political, economic, social
and culture issues, certain general principles have emerged as to what constitutes an effective
compliance and enforcement program. Understanding these principles will allow governments
and civil society to better evaluate and adapt their environmental compliance and enforcement
programs to meet the challenges of the 21st Century.
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3. PRINCIPLES OF EFFECTIVE COMPLIANCE AND ENFORCEMENT
3.1 Introduction
This chapter describes principles of effective environmental compliance and
enforcement programs. These principles build upon the issues discussed in Chapter Two and
provide the underlying context for the Environmental Management Cycle discussed in section
2.2.
Each country faces a unique set of challenges and capacities to implement its
environmental laws. However, there are fundamental elements in all countries that form the
basis of effective environmental compliance and enforcement programs and of legal systems.
These common principles, based on the collective knowledge and experience of the
International Network for Environmental Compliance and Enforcement (INECE) and reflective of
international good practice, may be used to improve national environmental compliance and
enforcement programs.
These principles are divided into five sections: (1) environmental results and shared
responsibility; (2) goals and strategies; (3) good governance, rule of law and compliance; (4)
structure and resources; and, (5) continuous evaluation and improvement.
3.2 Environmental Results and Shared Responsibility
3.2.1 Firm Commitment to the Environment
Environmental compliance and enforcement requires strong and consistent institutional
and societal commitments to resolve specific public health and environmental challenges
through effective implementation of environmental laws.
3.2.2 Comprehensive Framework for Environmental Management
Effective compliance and enforcement systems need to operate as part of an overall
framework of the environmental regulatory cycle: recognition of certain environmental problems,
selection of the management approach, development of the legal basis, implementation of
mechanisms to assure compliance, assessment of results, and program evaluation.
3.2.3 Collective Effort
Strengthening environmental compliance and enforcement requires collective efforts
among institutions and individuals. Government officials must exercise public authority
according to the standards of good governance, including providing sufficient resources and
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independence to compliance and enforcement programs. Legislators must create clearly written
legislation that is sufficiently stringent to meet its environmental goals. The judiciary is
responsible for upholding the rule of law and ensuring that laws are interpreted and applied
fairly, efficiently, and effectively. The regulated community is responsible for complying with the
letter and spirit of the law. Non-governmental organizations play a leading role in public
education and assisting enforcement agencies. The media is responsible for raising awareness
by presenting objective information and analysis. The international community - including
donors, international organizations, and networks - is responsible for strengthening domestic
efforts through capacity development and the promoting of conditions enabling more effective
compliance and enforcement.
3.3 Goals and Strategies
3.3.1 Meaningful Targets
Effective environmental compliance and enforcement programs have a clearly stated
guiding vision and realistic and measurable goals that are consistent with the organization's
mission. The goals should be supported by targets that describe the results a program is
expected to achieve in a given time period.
Environmental compliance and enforcement programs should utilize a balance of
strategies to assure compliance: education and assistance; compliance incentives; monitoring
and inspections; and fair and differentiated non-compliance responses. The balance of
strategies should consider the social, cultural, economic, and political norms of the society, in
addition to the society's broad environmental goals.
3.3.2 Communication and Outreach
Competent authorities should communicate these strategies to the regulated community,
civil society, and other government agencies in a comprehensive, comprehensible, and
transparent manner. Governments should create conditions for public participation and
information exchange that will build capacity for improved environmental compliance.
3.4 Good Governance, Rule of Law, and Compliance
3.4.1 Good Governance
Effective environmental compliance and enforcement depend on good governance,
which is characterized by institutions that are open, participatory, accountable, predictable, and
transparent. Good governance requires consistent, visible, and transparent efforts against
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corruption through supporting a culture of integrity, including a no tolerance policy for corrupt
practices.
3.4.2 The Rule of Law
The rule of law forms the basis for effective environmental compliance and enforcement.
Broadly speaking, 'rule of law' refers to the presence of legal requirements that are transparent
and fairly applied. The rule of law depends upon an independent judiciary that interprets and
applies the law in an impartial and transparent manner.
3.4.3 Non-Compliance Response
Effective environmental compliance and enforcement programs deter illegal conduct by
creating negative consequences for violators of the law. Deterrence is strengthened by timely,
predictable, and appropriate enforcement actions that cause potential violators to determine that
the risk of detection and punishment outweighs the potential benefits of non-compliance. This is
achieved through the implementation of penalties - including non-monetary penalties such as
jail time - that exceed the economic benefit of non-compliance - making non-compliance
ultimately costlier than compliance.
3.5 Structure and Resources
3.5.1 Policies and Procedures
Transparent and unambiguous policies and procedures that are based on the law should
be adopted in order to define the roles of competent authorities, their structural units, and
personnel; clarify jurisdictions of national and sub-national authorities; ensure coordination and
sound decision-making, particularly where this process is likely to be flexible or discretionary;
and ensure steady information flows.
3.5.2 Adequate Resources and Training
Competent authorities should have access to the physical, technical, and financial
resources that are adequate to their mandate and scope of work. Management should ensure
high levels of professionalism through proper remuneration, motivation, and professional
development opportunities for program staff.
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3.6 Continuous Evaluation and Improvement
3.6.1 Environmental Compliance and Enforcement Indicators
Program managers should identify, develop, and use performance measurement
indicators to improve decision making and resource prioritization, evaluate program efficiency,
and communicate how effectively the program responds to priority environmental problems.
Creating a useful system of indicators may require a legal mandate for performance
measurement, long-term commitment from senior management, and dedicated staff time for
data collection and dissemination.
3.6.2 Program Evaluation
Competent authorities should review and evaluate compliance and enforcement
programs both internally and externally on a periodic basis. Such reviews allow an organization
to bring about overall improvements in their program and to redefine priorities to reflect
successes, areas of underachievement, and shifts in goals. Outcomes of inspections and
enforcement should be assessed to see whether the legal provisions and permit conditions
were enforceable and practicable and whether other barriers to successful program
implementation exist.
These principles, and the concepts and issues set forth in Chapter 2, provide a basis for
the chapters that follow. These chapters will discuss management approaches to improving
environmental performance and address issues to consider when designing effective
requirements. They will also discuss compliance promotion activities, compliance monitoring
programs, and enforcement programs. Finally, they will explore program infrastructure, inter-
organizational communication, and methods of measuring performance through compliance
indicators.
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4. SELECTING A MANAGEMENT APPROACH
4.1 Introduction
Three different overlapping management approaches - voluntary, market-based, and
mandatory -- make up the framework underlying most environmental programs. Mandatory and
many market-based approaches require effective environmental compliance and enforcement
programs to ensure that the underlying rules are understood and followed by the regulated
community. Voluntary approaches provide important tools to educate, inform, and motivate
polluters about the need to reduce their environmental impacts despite the lack of legal
requirements.
All three approaches can be designed to target activities posing the greatest risk to
human health and the environment, reduce pollution, and create incentives for individuals,
businesses, and governments to find new, more cost effective solutions to environmental
problems. What makes mandatory approaches different is that they usually work to establish a
base-line of what is required from individuals, companies, and governments in terms of
environmental performance.
This chapter begins by examining the three different management approaches. It then
examines the general function of laws, regulations, permits, and guidance. It ends by providing
an overview of the types of environmental requirements that are codified in laws and regulations
and that have served as the foundation of many of the environmental improvements made over
the past several decades.
4.2 Approaches to Environmental Management
Most environmental programs today contain a mixture of voluntary, mandatory, and
market-based approaches.
4.2.1 Voluntary Approaches
Voluntary approaches encourage or assist the regulated community to take action to
ensure its behavior is compliant, but do not require it to take these actions. Voluntary
approaches include public education, technical assistance, and the promotion of environmental
leadership by industry and non-governmental organizations. Voluntary approaches can be
established by governmental or non-governmental organizations. Examples of programs that
use voluntary approaches include:
• Most environmental management system programs such as the International
Standards Organization's (ISO) 1400 certification.7
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• The Chemical Industry's Responsible Care® Program.8
• The U.S. Department of Energy's Climate Challenge Program.9
•
Industrial research into process changes that prevent pollution.
4.2.2 Market-Based Approaches
Market-based approaches use the market to achieve desired behavioral changes. These
approaches can occur without regulation or build upon mandatory approaches. Introducing
market forces into a mandatory approach can encourage greater pollution prevention and more
economic solutions to problems. Market- based approaches include:
• Fee systems that tax emissions, effluents, and other releases into the environment.
• Emissions trading programs that allow companies to trade permitted emission rights
with other companies.
• Offset approaches that allow a facility to propose various approaches to meeting an
environmental goal, for example, by allowing a facility to emit greater quantities of a
substance from one of its operations if the facility offsets this increase by reducing
emissions at another one of its operations.
• Auctions whereby the government auctions limited rights to produce or release
pollutants.
• Environmental labeling/public disclosure, whereby manufacturers are required to
label products in a way that informs consumers about certain environmental benefits
or public health or environmental risks, allowing the consumer to make informed
choices.
4.2.3 Mandatory Approaches
Mandatory approaches require that regulated entities conform to specific requirements.
The government then promotes and enforces compliance with these requirements. These
approaches include:
• Banning activities or products outright.
• Permitting or licensing certain activities.
• Creating an obligation to monitor and report certain activities.
• Requiring an entity to clean up or repair environmental damage.
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4.3 Finding the Right Mix
A number of factors can be considered in determining the right mix of voluntary,
mandatory, and market-based approaches to a particular environmental problem in a particular
jurisdiction. These factors include:
• Whether overall program goals are to require certain behavior.
• An understanding of what drives environmental performance of different sectors of
the economy.
• An understanding of what drives non-compliant behavior of entities on both a
sectoral basis and jurisdictional basis.
• The political, legislative, economic, and cultural realities of the society in question.
4.3.1 Overall Program Goals
The overall program goals will affect the types of approaches taken. If the overall
program goal is to require certain behavior, then a mandatory approach may be the best
approach. If the overall program goal is to encourage certain behavior, then some combination
of approaches may be required. Most effective programs will have a mix of mandatory and
voluntary approaches.
Each approach has different strengths and weaknesses that may vary from jurisdiction
to jurisdiction. Well-designed and properly implemented mandatory requirements will provide
greater certainty than voluntary approaches when accompanied by effective enforcement and
compliance programs. Voluntary programs can effectively educate and motivate participants,
but generally will not affect the overall economic drivers behind a company's environmental
performance goals. Market approaches will allow organizations greater flexibility to adapt to
changing science and technological capabilities, but they do not generally mandate fixed
pollution targets. This can make it difficult to ensure that specific environmental goals will be
met.
4.3.2 Understanding What Drives Performance
A number of factors - or drivers - can help change an organization's environmental
performance. The drivers often cited for improving environmental performance include:
• Enhanced efficiency and lower costs through reduced resource use, waste and
emissions.
• The desire to create a positive public image and improved relationship with
customers.
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• Business requirements, such as those created within a supply chain, by business
contracts, or through industrial associations.
• The desire for regulatory compliance, which can have additional benefits such as the
increased likelihood of fewer inspections and less scrutiny.
• The desire to improve the relationship with government agencies, which can lead to
faster approval of projects.
Understanding how these drivers will influence different sectors of the economy and
types of organizations will help government agencies tailor policies and target resources,
particularly as they relate to voluntary and market-based programs.
4.3.3 Understanding What Drives Non-compliance
Similarly, a number of factors can drive non-compliance. The reasons listed in Box 4-1
are those used by the Netherlands Ministry of Housing, Spatial Planning and the Environment
as a way of classifying reasons for non-compliance. Many of these factors, plus others, will be
applicable in many jurisdictions throughout the world. Understanding these factors will help
program planners predict the likelihood of success of new mandatory programs and decide
where to target enforcement and compliance resources.
BOX 4-1: ELEVEN REASONS FOR NON-COMPLIANCE
Reasons for non-compliance may include:
Aspects of spontaneous compliance
1. Knowledge of the regulations.
2. Cost/benefit ratio.
3. Degree of acceptance.
4. Loyalty and obedience of the target group.
5. Informal monitoring.
Aspects of monitoring
6. Informal report probability.
7. Monitoring probability.
8. Detection probability.
9. Selectivity of the inspector.
Aspects of sanctions
10. Probability of sanctions.
11. Severity of sanctions.
12. Political, legislative, economic, and cultural realities.
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Each country will consider what management approach to take based on its political,
legislative, economic and cultural situation. Existing laws, regulations, and policies, as well as
cultural and societal norms, and those businesses, industries, and organizations with political
and economic influence will all greatly affect the environmental management approaches of a
particular country.
Compliance officials can influence overall program direction by understanding society's
overall environmental goals, the factors driving environmental performance, and the factors
affecting non-compliance. With this understanding, they can operate more effectively within the
political, legislative, economic, and cultural norms of their jurisdiction.
4.4 Making the Mandatory Approach Enforceable
Ultimately, the laws underlying mandatory approaches to environmental management
must be enforceable. Laws and regulations may ban certain activities or products outright,
require permits or licenses for other activities, impose information collection and reporting
requirements, define and prohibit violations and provide environmental penalties and remedies
for violations. (See Box 4-2).
Market-based approaches also depend on enforceable laws to define the property being
traded and to provide incentives to use in the market. The system of labeling to enhance
consumer choice, for example, may require enforcement to avoid inaccurate or misleading
labeling.
An emissions trading system has elements of both mandatory and market-based
management approaches. The first step in a typical trading system is that an environmental
authority decides upon an acceptable level of overall emissions. The authority then issues
permits consistent with the mandatory targets whereby each firm is allowed to release a certain
amount of pollution. Firms are then free to emit that amount or sell all or part of their emissions
permit to another firm who may have exceeded their target, providing market incentives for firms
to pollute less than their permits allow.
The remaining portion of this handbook focuses on environmental management
approaches that are based on enforceable laws, regulations, and other requirements. This is
not to say that voluntary or market-based systems are not effective in achieving environmental
protection; they should be considered as an integral part of an overall approach. However,
there is less societal oversight, control and enforcement involved. This handbook focuses on
the design and implementation of compliance and enforcement programs, which are, by
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definition, not part of an approach designed to motivate voluntary changes in behavior, but
instead attempt to compel compliance with legal mandates.
BOX 4-2: TYPES OF REQUIREMENTS
Constitution
Some nations' constitutions guarantee their citizens a clean and healthy environment,
giving those governments and others the responsibility to protect that right.
Laws
Laws provide the vision, scope, and authority for environmental protection and
restoration. In some countries, laws also encompass the types of general requirements that
other countries describe in regulations.
Regulations
Regulations establish the details of a law, e.g., criteria for issuing permits and licenses,
how and when to test for harmful substances, how the government will conduct itself in an
enforcement action, etc. Regulations are most often developed by the implementing agency that
is charged with compliance and enforcement under the law.
Permits and Licenses
The terms permits and licenses are usually used interchangeably. Permits typically
control activities related to construction or operation of facilities that generate pollutants. Permit
requirements are often based on specific criteria established in laws or regulations.
General permits specify exactly what a class of facilities (e.g., gasoline stations) is
required to do. General permits and licenses are used when it is impractical or unnecessary to
issue a specific permit for each similar, small facility. Facility-specific permits specify exactly
what a particular facility is required to do. Facility-specific permits often take into account the
particular conditions at the specific facility.
Licenses are similar to permits. Licenses are authorizations to manufacture, test, sell, 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.
Both licenses and permits are usually issued by the implementing agency.
Guidance and Policies
Guidance and policies are tools for government regulators to interpret regulatory
requirements and/or provide a formal statement regarding a particular issue or problem. These
can be directed toward the regulated community or toward the government, prescribing its
actions in particular situations. They are frequently used to help ensure fairness and
consistency in the application of laws and regulations. In most countries, guidance and policy
are not considered legally binding.
The next chapter discusses important considerations when developing environmental
laws, including issues of legal authority, institutional framework, and the need for effective and
enforceable requirements.
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5. DESIGNING EFFECTIVE REQUIREMENTS
5.1 Introduction
Effective requirements are critical to the success of any compliance and enforcement
program. Without adequate legal authorities, enforcement programs will generally be ineffective.
Unclear, imprecise, ambiguous, inconsistent, or contradictory requirements may be difficult or
impossible to enforce. Requirements that rely on expensive, unreliable, or unavailable
technologies will make compliance difficult or impossible.
This chapter outlines some steps that can be taken to design effective requirements.
These include explanations about some of the basic legal issues in drafting requirements,
balancing the stringency and feasibility of requirements, designing effective general and specific
requirements, and developing strategies for involving stakeholders in the drafting process.
5.2 Basic Legal Issues
5.2.1 Sufficient Legal Authority
An environmental law will be effective only if it provides sufficient legal authority to
ensure compliance.10 The credibility of a program will erode if non-compliant actors can
successfully challenge the government's authority to take certain actions or if the government
does not have the tools to ensure compliance.11
Some of the powers necessary to ensure program effectiveness are the abilities to:
• Issue regulations, permits, licenses, and guidance to implement the law.
• Monitor regulated actors and gain access to their records and equipment to
determine if they are in compliance.
• Require the regulated community to 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 to the public.
• Take legal action against non-compliant actors, including: (1) imposing a range of
monetary penalties and other sanctions on actors that violate the law; or (2) imposing
criminal sanctions on actors who violate the law (e.g., an individual or corporation
that deliberately falsifies data).
• Correct situations that pose an imminent and substantial threat to public health or the
environment.
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5.2.2 Clear Standards
Clear, enforceable standards are needed for requirements to be effective. An
environmental standard is a guideline, usually in the form of a law or regulation, that regulates
the effect of human activity upon the environment. Standards may specify a desired state (the
level of nitrogen in the air cannot exceed 0.053 parts per million), limit alterations (e.g. no more
than 10% of natural forest may be damaged), or they may require the use of certain
technologies or practices. (See Box 5-1).
BOX 5-1: TYPES OF STANDARDS
Ambient Standards
Ambient standards, or media-quality standards, are goals for the quality of the ambient
environment (e.g. air, water). Ambient standards are usually written in units of concentration.
In the US, ambient 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 area-
wide goals. 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.
Performance Standards (Emissions and Effluents)
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. 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.
Technology Standards
These standards require the regulated community to use a particular type of
technology to control and/or monitor emissions. Technology standards are particularly
appropriate when the equipment is known to perform well under the range of conditions
generally experienced by sources in the community. It is relatively easy for inspectors to
determine whether sources are in compliance with technology standards: the approved
equipment must be in place and operating properly. 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 if they are not continually readjusted.
Practice Standards
These standards prohibit certain work activities that have significant environmental
impacts or require certain mitigating activities. For example, a standard might prohibit carrying
hazardous liquids in uncovered buckets. Like technology standards, it is easy for program
officials to inspect for compliance and take action against non-compliant sources, but difficult
to ensure ongoing compliance.
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Information Requirements
These legal provisions require a source of potential pollution (e.g., 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, and maintain records of levels of
pollution generated and whether or not they exceed 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. Manufacturers may be required to test and report
on potential harmful effects of new products on the environment.
Product or Use Bans
A ban may prohibit a product outright (e.g., no manufacture, sale, or transport of a
product), or a ban may prohibit particular uses or applications of a product.
5.2.3 Clear Roles and Responsibilities
Environmental laws should also create an institutional framework that specifies the roles
and responsibilities of the various levels of government and agencies. Laws and regulations
need to be clear about the process and procedures by which the government can take an
enforcement action.
5.2.4 Fair and Equitable Rules
Government credibility is critical to establishing an effective compliance and enforcement
program. Rules must protect those who have allegedly violated environmental laws from unfair
government actions. The rights and responsibilities of those involved in an enforcement
process must be clearly written and accessible to them.
A government's willingness and ability to impose sanctions related to bribery and the
falsification of environmental data are also very important.
In addition, government inspection schemes must be rational and related to the laws'
underlying environmental and public health purposes.
5.2.5 Coordinated with Existing Laws
When laws are developed and proposed, legislators, government agencies, and interest
groups should work to understand how those laws will affect other environmental laws and laws
in other related sectors. Other sectors with laws that overlap pollution control and natural
resource protection may include:
• Health—food safety, occupational health and safety, drinking water, consumer
products, pesticide use, etc.
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• Land use planning - transportation, development, siting, etc.
• Industry and commerce.
• Agriculture.
Rational coordination of laws can be especially important in countries with many
agencies sharing responsibility for environmental protection. Brazil, in a situation common to
many countries, faces the challenge of coordinating over 69 environmental laws and 53
international environmental-related treaties across the national, state, and municipal levels.12
5.3 Balancing Stringency and Feasibility
Those designing environmental requirements should consider whether particular
requirements are technologically, economically, and administratively feasible. If the government
would like to ban a particular product or activity, then it will need to determine whether
alternatives are desirable, and if so, whether they are feasible.
Social, economic, and political factors, as well as regional, national, and international
trends may affect how a particular country determines how stringent to make a particular law or
regulation.
Stringent requirements can lead to better and potentially quicker environmental
protection and restoration. In some cases, however, overly stringent requirements imposed too
early in the life of a program can cause the regulated community to disregard those
requirements. Goals and targets that consistently overreach are likely to be modified,
encouraging industry to wait for the goals to be revised before complying. Overly ambitious
requirements, accompanied by a history of retreat, will undermine compliance with both the
requirements at issue and the overall environmental management program.
A phased approach may address some of these issues. The first phase involves less
stringent requirements that do not pose too great a burden for the regulated community. At a
minimum, this phase should eliminate some of the competitive advantage for polluters.
Sometime later, during a second phase, the program implements more stringent requirements.
Additional phases may be implemented later in an effort to continue to tighten standards.
5.4 Effective General Requirements
General requirements are those that apply to a class or group of entities or people
and/or a class of activities.
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5.4.1 Basic Design Principles
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). General requirements may apply directly to a group of facilities or may serve as the
basis for developing facility-specific requirements. Requirements should:
• Be clear and understandable.
• Precisely define the sources or activities that are subject to requirements.
• Precisely define the requirements and any exceptions or variances (such as when
regulated entities may petition the government for an exemption from a general
requirement).13
• Clearly address how compliance is to be determined by specifying test methods and
procedures.
• Clearly state deadlines for compliance.
• Identify what types of compliance assistance will be offered to the regulated
community (e.g., training, technical assistance, etc.).
• Describe how compliance will be monitored.
• Establish enforcement responses for non-compliance.
• Be flexible enough to be constructively adapted through individual permits, licenses,
or variances to different regulatory circumstances.
• Be written clearly enough to be the basis of criminal prosecution (which is the most
serious enforcement action).
• Be based on technology (e.g., control or monitoring equipment) and methodologies
that are or soon will be available, reliable, and affordable.
Box 5-2 provides examples of basic questions that can be asked when legal
requirements are being drafted into regulations, general permits, or licenses that will be
effective.
BOX 5-2: CHECKLIST FOR DEVELOPING EFFECTIVE GENERAL REQUIREMENTS
Definitions
• Does the regulation, general permit, or general license clearly define the regulated
community, the regulated activities, and the regulated substances?
• Are any exceptions to defined terms narrow enough to avoid having the exceptions
undermine the defined terms?
• Are the definitions and exceptions precise enough so that compliance assurance
personnel can identify instances of non-compliance?
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• Are defined terms used consistently throughout the text of the regulation, general
permit, or general license?
• Is the legal authority underlying the regulation, general permit, or general license
clearly articulated?
• Are exceptions to the regulation, general permit, or general license defined precisely
enough to make it clear which groups are exempted? If sources under a certain size
are exempted, does the regulation identify how the size of a particular source is to be
determined?
• Are requirements or other end results measurable? Are the units of compliance clear?
• Are more enforceable requirements available, i.e., requirements that are easier to
measure and less resource-intensive?
• Are exceptions clearly described? Is the calculation for exceptions clearly specified?
If the regulation, general permit, or general license grants exceptions based on
malfunctions or changes in local conditions, does it specify what emission levels may
be excused, when, and who makes this determination?
• If changed circumstances may raise or change a requirement, does the regulation,
general permit, or general license clearly specify these circumstances? Are the
changes that must be made clearly defined?
• If the requirement is an emission limit or concentration value, does it explicitly state
the time frame associated with the limit (e.g., instantaneous, two-hour average, daily)?
Monitoring
• Does the regulation clearly state exactly what the regulated community is required to
monitor? Do these requirements support the compliance goals of the environmental
law? For example, if the compliance goal is to demonstrate that facilities are in
compliance each day, does the regulation, general permit, or general license require
daily self-monitoring and recordkeeping [and reporting]?
• What test methods are needed to determine whether a facility is in compliance? Are
the methods clearly described? Are any allowable averaging times clearly specified?
• Does the regulation, general permit, or general license make falsifying self-monitoring
data a separate and enforceable violation?
• Does the regulation, general permit, or general license authorize inspection
procedures that will enable inspectors to gather data needed to determine
compliance?
• Do the procedures cover entering a regulated facility, inspecting documents, and
collecting samples?
• Will inspectors be readily able to determine which facilities are not in compliance?
• Will the requirements for inspection and self-monitoring help reduce enforcement
costs and increase the effectiveness of inspections?
Self-monitoring
• Does the regulation, general permit, or general license provide a clear schedule for
self-monitoring?
• Does the regulation, general permit, or general license state the methods to be used
for self-monitoring?
• Does the regulation, general permit, or general license clearly state what data the
regulated community 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?
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• Does the regulation, general permit, or general license provide a clear schedule and
format for recordkeeping and reporting?
• Are the reporting requirements frequent enough to allow timely response to a
violation?
• Is the regulated community required to retain information long enough for enforcement
purposes?
• Does the regulation, general permit, or general license make failure to maintain or
report records a separate and 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
defined/stated?
• Will the requirements for reports, records, and inspection/monitoring techniques help
reduce enforcement costs and increase the effectiveness of inspections?
Demonstrating Compliance
• Does the regulation, general permit, or general license clearly describe what
constitutes compliance and how compliance is determined? Is compliance
determined by field inspections and desk reviews of reports submitted by the
regulated community, or is the regulation, general permit, or general license self-
enforcing?
• Does the regulation, general permit, or general license clearly state who (i.e., the
government or the facility) is responsible for proving compliance or non-compliance?
Can the environmental management 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? If compliance is defined by occurrence of
an event, rather than by a date, is the event discrete enough for an inspector to
determine whether the facility is in compliance?
• Is the evidentiary burden required to prove a violation clearly described? Can third
party data be used as evidence?
• Does the regulation, general permit, or general license describe the extent to which an
inspector can use professional judgment in determining whether a facility is in
compliance?
• If different government levels are involved in enforcement programs, does the
regulation, general permit, or general license clearly describe the responsibilities of
each level of government?
5.4.2 Size of the Regulated Community
If possible, regulators should determine the size of the regulated community prior to
implementing environmental laws; otherwise governments may find that their environmental
requirements are unmanageable.
For example, a province in the Netherlands passed a law requiring companies to apply
for an exemption if they wanted to use a processing installation to dispose of their wastes. After
the law was passed, the government discovered that 100,000 companies would need an
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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. Compliance assurance efforts now focus on the waste processors
(about 1,000) rather than the waste producers.
BOX 5-3: THE IMPORTANCE SMALL AND MEDIUM SIZE BUSINESSES14
The economic and environmental significance of small and medium size businesses
(SMEs) is significant. For example, in Canada, Mexico and the United States over 98 percent of
the businesses are Small and Medium Size Enterprises (SMEs). Although most SMEs serve
local markets, they increasingly operate as part of a global market place, purchasing products
produced abroad, supplying multinational companies and selling directly to overseas buyers.
SMEs face widely differing environmental issues based on the economic sector,
employee base and jurisdiction in which they operate. A study prepared by the Organisation for
Economic Cooperation and Development (OECD) found that in the United States, SMEs are
significant contributors to pollution in three branches of manufacturing: chemicals, primary
metals, and building materials (e.g., stone, clay, glass). The largest impacts from SMEs were on
biological oxygen demand in water and suspended particles in air, followed by release of toxic
chemicals.
Because of their size, governments should consider these factors when developing
initiatives for SMEs: (1) The power of the supply chain, business contracts, and industrial
associations can be significant for many SME sectors; (2) A tailored outreach can be helpful.
Official efforts narrowly tailored to the business sector, size, and location of the SME will be far
more successful than generic outreach efforts; (3) The right partners are essential. When
governments involve business associations that have SMEs as members, the likelihood of
success is greater; (4) Regulatory compliance pressure can motivate the search for the least
expensive solutions that are lawful.
5.4.3 Size of Regulated Entities
Regulators should also consider the size of the regulated entity and adjust outreach and
enforcement strategies accordingly. Smaller entities are a major source of pollution and often
may not have in-house expertise or the resources to comply with complicated requirements.
Governments may need to provide greater compliance promotion activities and work with local
governments and trade associations to help understand the capabilities of these types of
businesses and the extent of environmental problems at their facilities. (See Box 5-3).
5.4.4 Providing for Individual Circumstances
Requirements that are very specific may leave little room for open interpretation. While
such requirements may be easier to enforce, they might not allow the flexibility that will
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encourage compliance. Environmental management programs often use facility-specific
permits or licenses to provide the flexibility that individual circumstances often warrant.
5.5 Facility-Specific Requirements
Facility-specific requirements are most frequently implemented in the form of permits or
licenses. They are often based on specific criteria established in laws, regulations, 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
environmental media) or may include comprehensive documents covering all requirements that
the facility must meet.
5.6 Ensuring Effectiveness
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. Regulatory agencies can take several practical steps to help ensure that
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 tailor a permit for a specific
facility.
• Provide clear instructions to the permit or license writer on how to prepare the permit
or license.
Box 5-4 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 non-compliance. 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 or environmental risk, the facility's resources for compliance, and
feasibility.
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BOX 5-4: CHECKLIST FOR DEVELOPING ENFORCEABLE FACILITY SPECIFIC
REQUIREMENTS
General
• Is the length of time that the permit will be valid clearly stated? Is a date specified to
indicate when the permit must be reissued and when an application for a new permit
should be filed?
• Does the permit contain a provision stating that the permit must be modified if
ownership of the facility changes, or if the facility makes changes to its regulated
processes?
• Do the permit conditions conflict with conditions in any other of the facility's permits?
• Is there a provision specifying that the permit can automatically be revoked if it is
discovered that the applicant deliberately submitted false, misleading, or incomplete
information during the application process?
• Does the permit state whether the owner or operator will be liable for non-
compliance?
Requirements
• Are the requirements measurable? Are the units of compliance clear?
• Does the permit specify that a modification will be required if the requirements or
criteria change?
• If the requirement is an emission limit, does the permit explicitly state the time frame
associated with the limit (e.g., instantaneous, 3-hour average, daily) and the location
of where the measurement shall take place?
Monitoring
• Does the permit clearly state exactly what the facility is required to monitor? Do these
requirements support the compliance goals of the environmental regulation?
• What test methods are needed to determine whether the facility is in compliance?
Are the methods clearly described and available to the permittee? Are any allowable
averaging times clearly specified?
• Does the permit make the act of falsifying self-monitoring data a separate and
enforceable violation?
• Does the permit provide a clear schedule for self-monitoring?
• Does the permit authorize inspection procedures that will 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?
• Will the requirements for inspection and self-monitoring help reduce enforcement
costs and increase the effectiveness of inspections?
Self-Monitoring
• 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? Wll these data
provide sufficient evidence to document a violation?
• Is the facility required to report non-compliance with permit requirements? If so, does
the permit specify a deadline for reporting non-compliance, and the person to whom
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non-compliance should be reported?
• Does the permit provide a clear schedule and format for record-keeping and
reporting?
• Does the permit specify to whom the information should be reported?
• Are the reporting requirements frequent enough to allow timely response to a
violation? Is the facility required to retain information long enough for enforcement
purposes?
• Does the permit make failure to maintain or report records a separate and
enforceable violation?
• Is the facility required to make records available upon request?
• Are any exceptions to the record-keeping and reporting requirements clearly spelled
out?
• Will the requirements for reports, records, and inspection/monitoring techniques help
reduce enforcement costs and increase the effectiveness of inspections?
Demonstrating Compliance
• Does the permit clearly describe what constitutes compliance and how compliance is
determined?
• Does the permit clearly state who is responsible for proving compliance or non-
compliance (as established by applicable law)?
• Does the permit define time limits by which the facility must reach compliance? Do
the time periods have specified beginning and end points? If compliance is defined
by occurrence of an event, rather than by a date, is the event discrete enough for an
inspector to determine whether the facility is in compliance?
5.7 The Permitting and Licensing Processes
The process for writing permits and licenses varies from one country to another, but
usually 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 must inform interested parties (e.g., the local community)
that a permit or license is being prepared.
• The permit or license writer must 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 among the permit
or license writer, facility, workers, local community, and other potentially affected
parties.
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• After sufficient information gathering, discussion, and negotiation, the permit or
license writer decides whether to issue the permit or the 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 opportunities to ensure that facilities
clearly understand what the requirements are and the importance, both from an environmental
and legal perspective, of meeting them.
5.8 Involving Stakeholders
The process of drafting effective environmental requirements can be informed by input
from various stakeholders, including environmental management program personnel, the
regulated community, citizens and non-governmental organizations, other environmental
programs, and government authorities. This process should be governed by administrative
procedures that are transparent and based on the rule of law.
5.8.1 Compliance Assurance Officials
Special institutional channels and procedures should allow compliance assurance staff,
including inspectors and prosecutors, to provide meaningful input in the drafting of general
requirements. Enforcement and compliance officials often have unique and real world
experience with different regulatory programs and can see the strengths and weaknesses for
the enforceability of regulatory proposals.
One option is to create committees that include both policymakers and enforcement
officials. These committees can include representatives of all government levels (national,
regional, provincial, and local) that may be involved in the process of assuring compliance with
the requirements. Committee members can be responsible for ensuring that the appropriate
individuals within the environmental management program are involved in drafting and
reviewing the requirements.
Comments on the proposed requirements should follow administrative procedures that
allow for written comments and that establish a record of the decision-making process.
Lessons learned about what makes existing requirements effective or ineffective in a
particular region or country might be recorded, studied, and communicated to those involved in
developing new requirements. For example, selected requirements could be reviewed one year
after coming into force in order to analyze their effectiveness and make any necessary
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adjustments and to establish an expedited process that can be used to correct specific types of
deficiencies by making limited revisions to general requirements.
5.8.2 The Regulated Community and Civil Society
Involving the regulated community and civil society in developing requirements helps
build support, reduces resistance and conflict, and eases implementation. It can also make
requirements more practical, and therefore more enforceable, and it publicizes the requirements
at an early phase, thus "setting the stage" for compliance. Below are three basic ways to
involve the regulated community and civil society in the process of drafting environmental
requirements: informal consultations, formal comment, and field testing. (See Box 5-5).
BOX 5-5: INVOLVING THE REGULATED COMMUNITY AND CIVIL SOCIETY
Informal Consultations
Policymakers can consult with key representatives of the regulated community and civil
society informally before developing general requirements. These consultations can be helpful
in sorting out future problems early and eliminating resistance.
Formal Comment
U.S. legal systems require the federal government to publish draft regulations and
solicit comments from the regulated community and the public. Widely distributed, low-cost
government periodicals provide advance notice that new regulations are being developed and
announce when they will be available. Any organization or individual can easily obtain and
review the proposed regulations when they are issued. Written comments from the public are
usually accepted for a limited period of time (30 to 90 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 their approach. The formal responses to comments reassure commenting parties
that their comments were considered.15
Field Testing
In field testing, specific members of the regulated community volunteer to test general
requirements to determine whether the requirements are clear and understandable, and to
assess/evaluate the 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. Where field testing is used, policymakers will
need to determine who will fund it—the enforcement program, the test facility itself, a trade
association representing the regulated community, or a combination of these.
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Involving the non-regulated community (e.g., the general public and non-governmental
organizations) can also be very helpful. Such involvement is an opportunity to solicit creative
ideas from knowledgeable groups. Civil society has an interest in clear and effective
environmental requirements. Laws, regulations, and permits that provide specific substantive
requirements make it easier for members of civil society to participate in citizen based
compliance promotion, monitoring, and enforcement. In addition, the involvement of civil society
helps shield the program from isolation and builds broad-based popular support for the
requirements and their implementation.
In China, for example, the State Environmental Protection Administration recently
passed a regulation to allow greater public participation in Environmental Impact Assessments.
These Assessments will be more widely distributed to the public, and citizens will be able to
participate in the process through opinion surveys, consultations, seminars, debates, and
hearings.16
5.9 Coordinating with Other Programs
It is important to coordinate the environmental requirements of different laws and
regulations and to understand how they may interact when implemented. For instance,
regulations requiring electronics firms to stop chemical solvents in tanks from leaking into the
groundwater could be obeyed by releasing solvents into the air, creating an air quality problem.
Other examples include flue-gas scrubbing to reduce harmful air emissions that could lead to
discharges of contaminated water and treatment of contaminated wastewater that produces yet
another waste product requiring responsible processing.
Several rulemaking practices can be used to avoid 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, studies of the regulated
community can examine whether compliance with one law would result in shifting of pollution
from one 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.
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6. COMPLIANCE PROMOTION
6.1 Introduction
In many countries, traditional environmental regulatory programs are being carried out in
conjunction with non-regulatory voluntary programs designed to promote changes in behavior.
Voluntary programs are different from compliance promotion activities, as voluntary programs
have no mandatory component while compliance promotion activities encourage and help the
regulated community to comply with environmental laws and requirements through assistance
and incentive activities.
This chapter provides an overview of some of these compliance assistance and
compliance incentives activities. It begins by examining educational, technical, and financial
assistance programs that make up compliance assistance efforts. It then examines compliance
incentives efforts, such as auditing policies, recognition programs, efforts to provide the public
with information, and market-based mechanisms.
6.2 Compliance Assistance
Compliance assistance encourages observance of the law through outreach, education,
and other promotional activities. Compliance assistance activities are designed to improve
compliance by explaining how to comply with legal and regulatory requirements. Compliance
assistance activities can cover both statute specific and sector related activities. Outreach
programs and technical assistance tools tend to be most successful when they are developed at
regional levels and are tailored to the needs of specific businesses.
Compliance assistance programs can help regulated firms reduce the costs of
compliance and develop environmental management capacity within the regulated community.
The success of these initiatives will depend largely on how they are developed, packaged, and
delivered. Compliance assistance programs can include education and technical assistance and
in some cases financial assistance.
6.2.1 Education and Technical Assistance
Education and technical assistance lay the groundwork for compliance. These efforts
can help businesses and individuals fully understand their legal responsibilities, and how they
can meet those responsibilities. Education and technical assistance are particularly important in
the early stages of a new program or when legal and regulatory requirements change.
Education and technical assistance programs can help the regulated community understand:
• Who is subject to requirements?
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• What are the requirements?
• Why are these requirements important?
• What changes (including technical and managerial changes) can be made to comply
with the requirements?
• How can these changes be made (e.g. equipment, operations, human resources)?
• What are the consequences of non-compliance (both in terms of costs and benefits)?
Education and technical assistance outreach can be made through publications (such as
brochures and guidance manuals); websites; "hot lines" or dedicated telephone numbers;
conferences and other meetings; or as part of media announcements.
Technical assistance can be provided by trained government personnel who visit
individual members of the regulated community to assist them in making changes, and as part
of special assistance programs, set up for example at universities or non-governmental
institutions, that provide a central resource for information and advice on how to comply with
legal and regulatory requirements.
Professional associations are important government partners for compliance assistance
activities. These associations usually have established communication networks and access to
industry experts. They can provide forums for the regulated community and enforcement
program personnel to exchange information and ideas.
BOX 6-1: IMPROVING WASTE COLLECTION IN THE NETHERLANDS
Commercial establishments in the Netherlands are required to dispose of their
hazardous wastes through permitted processors. However, getting the waste to the processor
was a problem for small businesses. The processors were often unwilling to pick up small
amounts of waste, and transporting small quantities of waste long distances to a processor
placed a disproportionate economic burden on small businesses. Therefore, small companies
were often out of compliance with the hazardous waste rules. The Dutch government helped
to solve this problem by establishing a collection depot in nearly every town in the Netherlands.
Both private citizens and small companies may now discard their waste at these depots at
regular times. This government-facilitated cooperative arrangement was instrumental in
helping solve the compliance problem.
Many countries are increasingly focusing compliance assistance efforts on specific
sectors or types of businesses. By using this approach, governments can tailor their outreach
efforts to the specific needs of an industry instead of focusing their efforts on the requirements
of individual statutes. Many countries are increasingly using the internet to deliver sector
focused compliance assistance material to the user and are cooperating with other countries in
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sharing this information.
An example of this new approach is the collaboration that is occuring between the
USEPA, the Asian Environmental Compliance and Enforcement Network (AECEN), and the
environmental agencies of the Philippines and Thailand. Over the past decade, USEPA has
established highly successful, stakeholder-driven, web-based compliance assistance centers
geared primarily toward small and medium size business.17 It is now working closely with the
Philippines, Thailand, and ASEAN to share U.S. experiences and provide feedback on
proposed strategies and models as these countries develop their own stakeholder driven, web-
based centers.18
6.2.2 Financial assistance
Even with education and technical assistance, cost may be a significant barrier to
compliance. In some instances, the government may want to provide direct assistance to the
regulated community in order to help them deal with the initial cost of compliance.
In the late 1990s, for example, selected firms in Sri Lanka's distillery, textile, and metal
finishing sectors were shown ways to reduce waste generation quantities through simple
process and raw material changes, as well as good housekeeping practices. Demonstration
waste minimization projects such as these help industries to meet the required environmental
standards while at the same time reducing end-of-pipe treatment costs.
Some international organizations and national development aid agencies provide funds
to developing countries that could not otherwise afford to comply with environmental
requirements. The Compliance Assistance Programme of the Multilateral Fund of the Montreal
Protocol, for example, has a successful capacity building program that places teams in regional
offices to deliver technical assistance on Protocol requirements directly to developing
countries.19
6.3 Compliance Incentives
Compliance incentives consist of a set of policies and programs that eliminate, reduce or
waive penalties under certain conditions for business, industry, and government facilities that
voluntarily discover, promptly disclose and correct non-compliance, and prevent future
environmental violations. Many audit and special recognition programs are examples of
compliance incentive programs. These programs provide concrete benefits for companies,
agencies, and individuals that actively monitor their facilities and report problems to appropriate
authorities. Other compliance incentive programs provide the public with specific environmental
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performance information on companies in order to motivate them to improve their environmental
performance.
6.3.1 Auditing Policies
Some compliance incentives eliminate, reduce or waive penalties under certain
conditions for business, industry, and government facilities that voluntarily discover, promptly
disclose and correct non-compliance, and prevent future environmental violations. Under
USEPA's Audit policy, called Incentives for Self-Policing, Discovery, Disclosure, Corrective and
Prevention of Violations, regulated entities may, at the discretion of the Agency, avoid criminal
prosecution, and have penalties reduced or eliminated. But they must discover violations
through self-auditing or under environmental management systems, self-disclose (prior to the
Agency having initiated its own investigation), correct the violations promptly, and take
90
measures to prevent recurrence.
Mexico also has a similar program, called the Environmental Auditing Program (EAP). It
is based on a voluntary agreement between Mexico's Attorney General for Environmental
Protection (Profepa) and a participating organization. Under the EAP, a plan of action is
devised to recommend preventive and corrective measures related to air, water, soil, solid and
hazardous waste, noise, industrial safety and hygiene, energy, natural resources, environmental
risk, environmental management and other issues with potential adverse impacts to the
environment.
Participating organizations are evaluated by independent auditors. Participants agree to
correct violations by a certain date, and Profepa agrees not to penalize companies until that
date has passed. Organizations receive Profepa's certification of Clean Industry for
Environmental Compliance after an audit has been completed, an action plan has been
implemented, and all the preventive and corrective measures have been taken. Organizations
that go further and achieve stronger environmental performance under pollution prevention and
eco-efficiency schemes are granted the recognition of Environmental Excellence. Organizations
can use Profepa's performance seals to promote their public image.21
6.3.2 Recognition Programs
Environmental regulators frequently use incentives in the context of recognition
programs. Both Mexico and the United States, for example, have recognition programs, which
provide incentives to join these programs and maintain high levels of environmental
performance. Mexico's Environmental Excellence Seal (see above, Auditing Policies) is granted
to organizations that have engaged in self-designed initiatives directed toward preventing
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pollution, seeking community outreach, developing suppliers, solving local environmental
problems, and participating in pollution cleanup programs, among other measures. To obtain
the seal, organizations must present documented and operational proof of environmental
compliance.
USEPA National Environmental Performance Track recognizes top performers among
public or private facilities. To be recognized under performance track, facilities must have,
among other things:
• A history of sustained regulatory compliance.
• Past environmental achievement and a commitment to continuous environmental
improvement.
• A community outreach procedure in place.
Facilities accepted into the program receive special benefits such as low priority for
federal inspections; special regulatory and administrative incentives, such as flexibility in
developing certain air permits; and more flexible requirements for large generators of hazardous
waste.
Surveys of regulated communities find that the potential opportunity to forgo or postpone
regulation is the most important benefit of voluntary approaches.22 Therefore, environmental
management programs using these voluntary approaches must balance the need to
demonstrate a commitment to improvements while simultaneously maintaining a credible threat
of mandatory regulation and enforcement.
6.3.3 Public Information
A number of jurisdictions have overcome these problems by developing a public rating
system. Rating systems simplify the flow of information to the public by summarizing a
regulated firm's performance into a grade. The grading scale can be simple (in compliance/not
in compliance) or complicated. Box 6-2 provides an example of public grading in Indonesia.
Note that the rating system has two grades above simple compliance, providing inducements to
go beyond the environmental requirements.
Support of local media is critical to public information campaigns. To ensure accurate
press reports and foster a working relationship with the media, the environmental management
program should invite reporters to a detailed presentation of the information campaign, including
an explanation of how the information was collected and analyzed. The information should also
be in a format that is easily communicated by the broadcast and print media.
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Ideally, an information strategy should be flexible enough to accommodate regulated
firms with different characteristics. It should be simple and easily understandable by the public.
Finally, it should offer the regulated firm a chance to improve its performance before the
information becomes public. Many firms will take this opportunity to come into compliance
rather than risk damage to their reputations or more severe fines. (See Box 6-3 for an example
from China).
BOX 6-2: INDONESIA'S ENVIRONMENTAL REPORT CARD "PROPER PROKASIH"23
Compliance Status
Not in Compliance
In Compliance
Color Rating
Black
Red
Blue
Green
Gold
Performance Criteria
Polluter makes no effort to control pollution
and causes serious environmental damage.
Polluter makes effort to control pollution but
not sufficiently to achieve compliance.
Polluter applies effort sufficient only to meet
the standard.
Pollution level is significantly lower than the
discharge standards. Polluter also ensures
proper disposal of sludge, good
housekeeping, accurate pollution records
and good maintenance of the wastewater
treatment system.
All the requirements of Green, plus similar
levels of pollution control for air and
hazardous waste. Polluter reaches high
international standards by making extensive
use of clean technology, waste minimization
pollution prevention, recycling, etc.
The effectiveness of public involvement in information strategies will vary with the nature
of the sectors and firms regulated. It will be a challenge to bring market pressure on firms that
provide products or services in sectors with limited competition or where a brand name is not
dependent on public good-will. Closely held and government-owned enterprises also have a
degree of insulation from external pressure. But all of these firms can be reached with carefully
planned strategies.
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BOX 6-3: INFORMATION CAMPAIGNS IN CHINA
24
Faced with difficulty ensuring companies' compliance with pollution regulations, China
began a program, informally called "GreenWatch," for disclosing industry pollutant discharges
to the public. Pilot efforts, such as those in Hohhot Municipality and Zhenjiang City,
demonstrated that public disclosure of environmental performance could impact a company's
public image. The results were that "enterprises that improved their performance immediately
requested new monitoring reports so that their public ratings could be improved as well.
Enterprises with poor ratings shifted from passive resistance to active solicitation of
inspections, as a means of improving their performance ratings. At the same time, enterprises
with good ratings felt continued pressure to maintain their environmental performance to
avoid complaints from the public about backsliding." In November 2006, the Chinese
government decided to extend GreenWatch to every city in the country by 2010.
6.4 Market-Based Mechanisms
Market-based approaches, such as taxes, charges, and emissions or permit trading
programs (See Box 6-4) can promote compliance with the law by incorporating externalities into
the cost of doing business. Externalities are "hidden" costs to human health and the
environment associated with an activity, such as manufacturing steel. Because manufacturing
steel creates air pollution, an externality of this activity may be an increase in asthma rates
among children. Market-based approaches can help minimize these externalities by stimulating
consumers and producers to change their behavior to more eco-efficient use of natural
resources by increasing costs, reducing consumption, stimulating technological innovation, and
encouraging greater disclosure of actual/total/combined costs to community.
Market-based approaches are not usually considered compliance promotion activities
unless they involve promoting compliance with underlying regulatory requirements. Instead they
often either complement regulatory requirements or make them unnecessary. For example, the
Netherlands, Portugal, the United Kingdom, Spain, and Finland have introduced car registration
taxes which encourage car buyers to opt for the cleanest car models. These taxes can
complement existing domestic laws that require minimum fuel efficiency standards by making
more inefficient but legal cars more expensive.25 (See Box 6-4 for other examples).
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BOX 6-4: EXAMPLES OF TAXES AND FEES
In 1995, the Netherlands enacted a tax on the landfilling of waste. The purpose of this
tax is to address environmental issues of waste and to better distribute tax burdens across
different groups by introducing a new tax base. The tax is calculated based on the weight of the
waste. As of 2004, those dumping waste had to pay € 84.78 per ton for waste less than 1,100
kg/m3 and for certain waste streams like dangerous waste and shredder waste and € 13.98 per
ton for waste more than 1,100 kg/m3. Studies have shown that the tax has contributed to a shift
from dumping to prevention, recycling, and incineration of waste.
Colombia has demonstrated how discharge fees can create incentives for regulatory
authorities to improve permitting, monitoring, and enforcement. In 1997, to reduce water
pollution, Colombia began charging polluters a fee per unit of pollution emitted. The fees were
determined based on whether overall pollution reduction targets were being met. By allowing
Colombia's regional environmental authorities to keep the fees, but requiring reporting of fees to
a centralized authority, this system creates incentives for improved monitoring and enforcement.
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7. MONITORING COMPLIANCE
7.1 Introduction
Monitoring compliance is essential to the success of an environmental management
program. The collection and analysis of compliance information improves decision making
through the following:
• Evaluating program progress by establishing compliance status.
• Detecting and correcting violations.
• Supporting information strategies to promote compliance.
• Providing evidence to support enforcement actions and deter non-compliance.
There are four primary sources of compliance information discussed in this chapter:
• Inspections.
• Monitoring environmental conditions near a facility.
• Self-monitoring, recordkeeping, and self-reporting by the regulated community.
• Citizen monitoring.
These are described in detail below. Box 7-1 summarizes the advantages and
disadvantages of these four information sources. Additional information may come from reports
of other national, regional, provincial, or local agencies that have related jurisdiction over the
facility; requests for modifications to permits or licenses; and environmental audit reports
provided by the facility. However, as information on compliance status is gathered, an
enforcement program needs a system (computerized if possible) to store, access, and analyze
the information as needed.
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BOX 7-1: COMPARING SOURCES OF COMPLIANCE INFORMATION
INFORMATION SOURCE
ADVANTAGES
DISADVANTAGES
Inspections
Provide the most relevant
and reliable information.
Can be very resource-intensive.
Monitoring
Environmental
Conditions Near a
Facility
Useful for detecting possible
violations without entering
the facility.
Useful for determining
whether permit or license
requirements are providing
adequate environmental
protection.
Can be difficult to demonstrate a
connection between the pollution
detected and a specific source.
Difficult or impossible to obtain
precise information.
Resource-intensive in areas of
multiple sources.
Self-Monitoring, Self-
Recordkeeping, and Self-
Reporting by the
Regulated Community
Provide 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 data.
Place economic burden on the
regulated community and
increase paperwork.
Citizen Monitoring
Can detect violations that
are not detected by
inspections, industry self-
monitoring, and reporting.
Sporadically conducted.
Cannot control amount,
frequency, or quality of
information received.
Only a few violations are noticed
by citizens.
May require resources to
respond to erroneous or
irrelevant complaints.
26
7.2 Inspections
Inspections are the backbone of most enforcement programs/0 Inspections are
conducted by government inspectors or in some cases by independent parties hired by and
reporting back to the responsible agency. The inspector's role is not to interpret the law and
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make the final institutional or agency determination of compliance, but rather to gather facts
about a facility, collect and analyze documentation, and record observations. The inspector
then organizes those observations and supporting documentation into a report for review
against standards set forth in law.
Inspectors plan inspections, gather data in and around a particular facility, record and
report on their observations, and sometimes make independent judgments about whether the
facility is in compliance. Inspection activities may include, but are not limited to: observing and
documenting observations; sampling, measuring, and photographing; coring, drilling, and
excavating; reviewing and copying records; and seizing equipment, products, materials, or
records. Inspections can be very resource-intensive and therefore require careful targeting and
planning. 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 inspection reports, program managers can help ensure that reports can be made
available to enforcement personnel without delay if there is a possibility of non-compliance.27
BOX 7-2: BENEFITS OF INSPECTIONS IN VIETNAM
28
In 1997, Vietnam for the first time implemented a large-scale, nation-wide inspection for
compliance with environmental requirements. This process entailed close coordination between
branches of the national government (e.g., environment, energy, defense), between central and
local levels of government, and with the mass media. The investigations helped to increase the
role and influence of the environmental inspectors in society and helped introduce the Law on
Environmental Protection to the public.
7.3 Audits versus Inspections
Audits are similar to inspections, but whereas inspections are generally conducted by
the government or its agents, audits are conducted for or by a facility for its own purpose and
benefit.29 Audits may be conducted by internal staff or external, independent consultants.
These audits may be part of a larger management system, and may be done as a way to get
certification (such as ISO certification) or to show suppliers, clients, or investors that the
company is complying with its environmental responsibilities. During an inspection, if violations
are found, the government follows standard procedures to ensure that the evidence collected
will be upheld in court. In contrast, when an audit uncovers violations, evidence generally is not
collected, as there is not an enforcement response to the violations. The facility may choose to
correct the violation on its own, or may elect to report the violation to the regulatory agency.
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Some countries have programs designed to motivate facilities to come forward and admit to
their violations by offering reduced penalties or shields from prosecution. Audits and
environmental management systems are discussed in more detail in Chapter Six.
BOX 7-3: INSPECTION POWERS IN GAMBIA
30
The 1994 Hazardous Chemicals and Pesticides Control and Management Act gives
inspectors broad powers to investigate potential violations of laws governing pesticides and
other hazardous chemicals. The Act provides that an "inspector may, in the performance of his
duties...at all reasonable times without [a] warrant enter on any land, premises or vehicle
where a chemical or pesticide is or may be reasonably suspected to be manufactured, stored,
sold, distributed or used to determine whether the provisions of this Act are being complied
with." Moreover, the inspector may "take samples of any articles and substances to which this
Act relates and, as may be prescribed, submit such samples for test and analysis."
7.4 Types of Inspections
Inspections may be "routine" (there is no reason to suspect that the facility is out of
compliance) or "for cause" (a particular facility is targeted because there is reason to believe it is
out of compliance).31 Inspectors may notify the facility prior to inspection or arrive
unannounced.
There are many levels of inspection. (See Box 7-4). At the most basic level, an
inspector can simply walk through a plant. A more complex and time consuming inspection
might require an inspector, or multiple inspectors, to 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.
• 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 questions:
• Does the facility have an up-to-date permit or license?
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• Has all required pollution monitoring or control equipment been installed?
• Is the equipment being operated correctly?
• Are records of self-reported data properly prepared and maintained?
• Is the facility properly conducting 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 or falsification of data? Signs
could 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 knowledge of these requirements, and complaints from employees or
citizens in the local community.
BOX 7-4: THREE LEVELS OF INSPECTIONS
Level 1: Walk-Through Inspection
This type of inspection is limited to a quick survey of the facility. Inspectors need only
to walk through the facility to verify the existence of certain features, such as control
equipment or a records repository, or to observe work practices and housekeeping. These
inspections establish an enforcement presence, and can also serve as a screening process to
identify facilities that should be targeted for more intensive inspection.
Level 2: Compliance Evaluation Inspection
This level involves a thorough inspection of the facility but does not include sampling.
It may include visual observations like those in Level 1; review and evaluation of records;
interviews with facility personnel; review and critique of self-monitoring methods, instruments,
and data; examination of process and control devices; and collection of evidence of non-
compliance.
Level 3: Sampling Inspection
This includes the visual and record reviews of the other inspection levels, as well as
pre-planned collection and analysis of physical samples. These inspections are the most
resource-intensive.
7.5 Steps in the Inspection Process
Most environmental management programs use a standardized set of steps for their
inspection process or minor variations thereof. Inspections usually begin with an opening
conference to explain the inspection process to the facility.32 Some inspections end with a
closing conference, in which the inspector may make facility managers aware of any violations,
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prescribe corrective actions, and explain the consequences of continuing non-compliance.33
Some countries' 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. Other countries' legal systems require inspectors to leave written summaries
of observed violations, putting inspected companies on notice. Box 7-5 contains an example of
the phases of the inspection process. The following sections take a closer look at several of the
phases.
BOX 7-5: PHASES OF THE INSPECTION PROCESS
34
1. Targeting Inspections
Inspection sites are selected using four criteria: 1) random selection of sites from all of
the identifiable members of a regulated community, frequently referred to as a "neutral
inspection scheme;" 2) a selection that emphasizes a specific sector of the identifiable regulated
community, usually based on enforcement history, potential threat, or other clearly researched
criteria; 3) a selection based on information received from the public or other external sources
such as a tip or complaint; and 4) emergency responses. An agency must explain how it
weighed each of these criteria in a compliance monitoring report made available to the public to
show it that the selections were made in a fair and transparent manner.
2. Preparation of an Inspection Plan
This phase entails tasks such as reviewing all available information, contacting everyone
who may have relevant information, getting administrative clearances, and making necessary
arrangements if samples need to be taken.
3. Entry into Facility
Most public agencies seek to obtain consensual entry first. If the entry is denied, they try
to explain again why the entry is necessary. If denied again, authorization to enter may be
granted by a legal authority.
4. Opening Conference
The purpose of an opening conference is to let the facility know what the agency plans
to do and why, and also to learn more about the facility operation, plant layout, management
structure, plant processes, plant safety, and other information relevant for the investigation.
5. Collecting Evidence in the Field
Evidence is anything that provides verifiable information that can be used to establish,
certify, prove, substantiate, or support an assertion. It can include physical samples,
photographs, and copies of facility documents. The two most common methods of collecting
evidence in the field are facility walk-throughs and process-based investigations.35 Interviews
are also one of the inspector's most useful tools for gathering information.
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6. Collecting Evidence from Records and Reports
A record is any means of memorializing an event, person, place, or thing. Inspectors
have the authority to review relevant firm records to determine compliance. The following are
some common records that may be of relevance for inspectors: annual reports; production
records; shipping reports; manifests; inventory records; sales reports; process records; permits;
quality control records; waste management records; documentation of environmental
management systems; employee training records; self-monitoring records; discharge monitoring
reports; licenses; articles of incorporation; property records; logs; maintenance records; spill
reports; safety records; and accident reports.
7. Closing Conference
The closing conference provides an opportunity to confirm inspectors' observations and
review preliminary findings with facility personnel. This may also be the opportunity to explain
observed violations to the company.
8. Report Writing
The objective for generating the report is to organize and coordinate all documentation
and potential evidence in a comprehensive, understandable, and usable manner.
9. Referral for Follow-up/Enforcement
Examples of follow-up actions include: issuing a letter to the company; informing other
inspecting bodies of the findings and observations; planning a follow-up inspection; writing
notices; and possibly initiating a criminal or civil action to induce compliance.
10. Appearance as a Witness
The inspector may be called as a witness if civil or criminal enforcement actions are
taken.
7.5.1 Step 1: Targeting Inspections
More frequent inspections generally promote improved compliance. However, most
enforcement programs generally do not have enough resources to adequately inspect all
regulated facilities.
A two-tiered monitoring approach has proven effective in reducing environmental
management costs while maintaining an adequate level of deterrence. Under this approach,
"high risk" targets—those firms considered likely to be in non-compliance—receive more
frequent, thorough, and expensive inspections than "low risk" targets. 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.
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• The availability of self-reported data.
Another strategy for conserving program resources is to start with a less expensive
inspection. If the source is in violation, enforcement action should be taken to require the
source to correct the violation and conduct more extensive self-monitoring. If the monitoring
data indicates a continued violation or if there is any other reason to suspect a violation, another
more intensive inspection should then be conducted. This shifts some of the burden of data
gathering to the source and postpones resource-intensive inspections until concerns raised in
lower-level inspections and monitoring warrant greater expense. Some environmental
management programs offer to limit enforcement actions, and subsequent penalties, in
exchange for immediate correction of violations discovered during inspections.
Other considerations in targeting inspections include:
• The need to include a random component in any inspection program. This will help
reveal the true scope and nature of different risks by examining problems unlikely to
be revealed by targeted activities. Random inspection activities can include the
location, timing, or scope of the inspection.
• The need to address multi-media issues. Most inspection programs have traditionally
addressed a single environmental medium, such as air, land, or water. Many
government agencies have started stressing multi-media inspections, sometimes by
combining inspections from different agencies.
7.5.2 Step 2: Preparation of an Inspection Plan
Developing an inspection plan 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. Some flexibility, however, is important to allow the inspector to adapt to
unanticipated situations at the facility. The inspection plan must clearly establish duties for each
member of the inspection team. This promotes efficiency, as well as avoiding any confusion.
Box 7-6 lists some common elements of an inspection plan.
7.5.3 Step 3: Collecting Evidence
The inspector is responsible for gathering information to determine whether a facility is in
compliance and for collecting and documenting evidence of any violation. 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 appropriate
procedures for preservation of evidence. If standard procedures are not followed, then there is
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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 inspections to ensure that the inspections properly cover all of the necessary
aspects and are fair and objective. Sometimes inspectors are responsible for determining
whether a violation has occurred, while other times, program staff or legal staff make this
determination. Involvement of legal staff is essential in interpreting requirements, to determine
whether there has been a violation. Because of the potential risk to subsequent enforcement
cases, most inspectors in U.S. enforcement programs do not make decisions about whether a
violation has occurred.
BOX 7-6: ELEMENTS OF AN INSPECTION PLAN
Objectives
• What is the purpose of the inspection?
• What is to be accomplished?
Tasks
• What information will be reviewed (e.g., permits, licenses, regulations, previous
inspection reports, and information on the history of compliance)?
• What coordination with laboratories, other environmental programs, lawyers, or
government agencies is required?
Procedures
• Which specific facility processes will be inspected?
• Have inspectors established a right of entry to the facility?
• Will the inspection require special procedures?
• Has a quality assurance/quality control plan been developed and understood?
• What equipment will be required?
• What are the responsibilities of each member of the team?
Resources
• What personnel will be required?
• Has a safety plan been developed and understood?
Schedule
• What will be the time requirements for and order of inspection activities?
• What will be the priorities? What must be done, and what is optional to complete?
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7.5.4 Step 4: Written Inspection Report
The inspector must record notes on every aspect of the inspection and gather additional
evidence, such as physical samples, photographs, and copies of facility documents. As soon as
possible following the inspection, the inspector must prepare an inspection report which
references any additional evidence collected (photographs, documents, etc.). The final report
will serve as the basis for any testimony by the inspector and will likely be used as evidence if
enforcement actions are taken.
Prior to finalizing the report, any samples collected must be sent to a laboratory for
analysis, in accordance with the protocol outlined by the agency to ensure reliable evaluation of
samples. It is also important to establish and preserve the chain of custody. The evidence
should remain under the care of an appropriate authority in order to reduce the possibility of the
evidence being corrupted. The subject of the inspection, however, may be given the right to
have the samples examined by their own experts, provided that rules and procedures are in
place to protect the evidence from tampering.
Analytical data should be interpreted and presented in the final inspection report.
Elements of an inspection report may include:
• The specific reason for the inspection.
• Participants in the inspection.
• Statement that all required procedures for conducting the inspection were obeyed.
• A chronological list of all actions taken during the inspection.
• An inventory of the evidence obtained during the inspection.
• Observations made during the inspections.
• The results of sample analyses related to the inspection.
7.6 Building an Effective Inspection Program
7.6.1 Recognizing the Important Role of Inspectors
Inspectors have great influence on the success of an environmental management
program. They are responsible for identifying facilities that are out of compliance, and for
gathering evidence for enforcement actions. They are often the only environmental officials that
a facility manager will ever meet in person and may serve as the key witnesses in enforcement
cases.
It is generally desirable for environmental management programs that the inspectors
carrying out formal inspections be different from those who perform the compliance promotion
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and assistance programs. A program should not assign inspectors to monitor the same facilities
where they have provided special technical assistance. This will help minimize the risk (and
appearance) of preferential treatment by agency staff members who have spent considerable
time and energy consulting with a firm. In some instances, however, resource constraints and
the need for particular expertise make this difficult. For example, there may be a limited number
of energy plant inspectors with the requisite technical expertise so an agency may not have
enough manpower to change inspectors every visit. In cases such as these, the agency should
set a goal of changing the inspector responsible for that facility as often as practicable -
perhaps every few years.
7.6.2 Training
Inspectors require training in a broad range of skills: legal, technical, administrative, and
communication. (See Box 7-7). They need to be technically competent in the subject matter of
the inspections they perform and skilled in obtaining crucial facts and collecting and preserving
evidence of non-compliance. They also need to be skilled in managing projects, working as part
of a team, and communicating effectively. Communications range from entry conversations to
complex cross-examination in cases of serious violations. It is useful if inspectors are trained in
negotiation techniques and conflict resolution, because some inspections may become
adversarial. In such cases, inspectors must be able to prevent a hostile situation from
escalating. The training and integrity of inspectors are critical to effective enforcement
programs.
7.6.3 Support Resources
The kinds of equipment required to support an inspection vary 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.
• Documentation equipment to record information and evidence, including cameras,
film, pocket calculators, tape measures, and logbook.
• Sampling equipment to take samples of soil, water, or air.
• Equipment to transport samples to avoid contamination.
• Analytical equipment to examine the environmental samples taken at the facility.
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BOX 7-7: 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
Legal Aspects of Inspections and Enforcement
• Enforcement Litigation
• Entry and Information-gathering Tools
• Evidence
Pre-inspection Activities
• Pre-inspection Planning and Preparation
• Administrative Considerations for Inspectors
On-site Activities
• Gaining Entry and Opening Conference
• Ensuring Inspector Health and Safety
• Records Review
• Physical Sampling
• Interviews
• Observations and Illustrations
• Closing Conference/Travel Security Measures
Post-inspection Activities
• Reports and Files
• Laboratory Analysis
• Enforcement Proceedings
Communications
• Serving as an Expert Witness at Enforcement Proceedings
• Press and Public Relations
• Communications Skills
7.6.4 Program Design
Policymakers have many issues to consider 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
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cause"? How can routine inspections be distributed fairly and neutrally 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 and comprehensive. 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 is likely to destroy evidence if the inspection
is announced. On the other hand, if inspectors need to collect particularly detailed
information, it may be necessary to announce the visit so that the relevant experts
are available.
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, while also considering the results of earlier inspections. 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?
Numerous variables need to be considered when making these determinations,
including cost, resources, experience, and political considerations.
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.
Legal Authority. What legal authority do inspectors have to enter facilities? What
form of identification is used to prove the inspector's authenticity? What procedures
will be taken if the facility refuses to allow the inspection? Must the inspector have
consent before entering? Does the inspector need a warrant?
Role of the Inspector. Should the inspector determine whether a violation has
occurred or simply gather information? Without a clear role and authority, the
inspection may fail to meet the needs of enforcement.
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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 focused inspections is that it is
easier to train inspectors for these inspections. The disadvantage is that more
focused inspections may fail to detect non-compliance in areas not specifically
covered by those inspections.
Inspection of Related Activities. To what extent should inspectors gather data on
related company activities that may have an effect on environmental quality, such as
preparedness for chemical emergencies, pollution prevention activities, and waste
minimization programs? Which environmental media, including land, air, and water,
should inspectors examine?
Data Quality. How can the quality of data be ensured? 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 program's reporting and
recordkeeping system. Guidance also should 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 require guidance on appropriate procedures.
Documenting the Violation. How should the information gathered by the inspector
be documented? The information's value to the program may depend on factors
such as its clarity, completeness, and utility as evidence in a court of law.
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 non-
compliance 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 actions
taken against the facility. For example, facility managers could claim the information
conveyed by the inspector contributed to non-compliance if the information was in
any way misleading or not sufficiently comprehensive. Program lawyers may prefer
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that inspectors draw no initial conclusions and convey no information about
compliance to the facility.
• 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? Are the inspectors conscientious of
ethical conduct and quality assurance?
7.7 Self-monitoring, Self-recordkeeping, and Self-reporting
7.7.1 What are self-monitoring, self-recordkeeping, and self-reporting?
Self-monitoring, self-recordkeeping, and self-reporting are three ways in which sources
can be required to track their own compliance and record the results for government review. It
differs from the auditing and environmental management systems in that the latter are broader,
often voluntary, measures that government encourages the regulated community to adopt in
order to improve that community's compliance and environmental performance. Self-
monitoring, self-recordkeeping, and self-reporting, in contrast, represent specific requirements
placed on the regulated community to collect and maintain identifiable information.
In self-monitoring, sources measure an emission, discharge, or performance parameter
that provides information on the 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 can sometimes give a more accurate picture of emissions than occasional sampling and
analysis of the emissions themselves. This type of monitoring has proved 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., shipments of hazardous waste).
Self-reporting requires that sources provide the enforcement program with self-
monitoring or self-recordkeeping data periodically or upon request.
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7.7.2 Why choose self-monitoring, self-recordkeeping, and self-reporting?
Self-monitoring, self-recordkeeping, and self-reporting, when taken together, offer a
number of advantages over traditional inspections. They provide much more extensive
information on compliance than can be obtained with periodic inspections. They also shift some
of the economic burden of monitoring to the regulated community. In addition, they provide a
mechanism for educating the community about the compliance requirements. Finally, they
increase the level of management attention devoted to compliance and may inspire
management to improve production efficiency and prevent pollution.
Self-monitoring requires that reliable and affordable monitoring equipment be available
to the regulated community. Self-monitoring relies on the integrity and ability of the source to
provide accurate data. Reports will be misleading if the source either deliberately falsifies
information or lacks the technical capability to provide accurate data. Therefore, programs
using these approaches will need to establish some way to help ensure accuracy, e.g., by
requiring self-monitoring only in facilities with the appropriate technical capability or by
developing quality control standards for monitoring and recordkeeping.
Self-monitoring, self-recordkeeping, and self-reporting are often required by
environmental regulations. Firms have an incentive to under-report, but regulators can
counteract this incentive through more stringent enforcement of the disclosure requirement.
Enforcement officials can make these disclosure requirements facility-specific requirements via
permits. Information from self-monitoring, self-recordkeeping, and self-reporting is used
primarily to target inspections. It is also sometimes used as a basis for enforcement actions.
When used in enforcement actions, it is usually supplemented by inspections to corroborate the
accuracy of the data.
7.7.3 Designing effective self-monitoring, self-recordkeepinq, and self-reporting
To use self-monitoring, self-recordkeeping, or self-reporting as part of an enforcement
program, program officials need to provide guidance to the regulated community on: the
standard procedures, methods, and instruments that should be used to obtain the data; how
frequently data should be collected; and 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?
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• 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?
• 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 management pays more attention to routine reporting and that
enforcement officials can better control the quality of data. Proponents of
exceptional reporting36 argue that this approach 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 deters violations and failure to report, especially when the
law gives citizens the right to sue sources.
• 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 and criminally liable for false reporting. This is
an effective way to elicit the attention and cooperation of senior management in
achieving compliance. Such requirements are meaningful only if they are backed by
clear guidance and procedures for self-certification. Self-certification may also
include a requirement to report violations and efforts to correct them.
Different compliance monitoring program objectives require different capabilities in a
self-monitoring system. As a result, the structure of a self-monitoring program is affected by the
program's objectives. For example, a self-monitoring program that is used to identify cases
warranting enforcement action must identify violations of applicable standards in sufficient detail
and be based upon sufficiently reliable data in order to support initiation of an enforcement
action. In contrast, a program that uses source self-monitoring primarily to increase awareness
in the regulated community with regard to its environmental compliance status (and perhaps,
secondarily to deter environmental violations) may be broad in scope but require less active
data management by the regulatory agency.
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With fixed interval reporting,37 infrequent reporting may make it difficult for the regulatory
agency to make accurate assessments of an entity's environmental performance, as the reports
will not provide a cohesive, continuous picture of a facility over time. On the other hand,
reporting too frequently may result in unnecessary burdens on both the regulatory agency and
regulated entities and may also result in information being collected and submitted that has little
added value. The regulatory agency must ensure that the reporting intervals are appropriate to
meet its goals. Interval reporting may also be dependent on an entity's compliance history or
size. Entities with good compliance records may not be required to report as often as those with
poor compliance records. Likewise, smaller entities (both in size and discharge amounts) may
have less of a reporting burden.
BOX 7-8: SELF-MONITORING IN CANADA
38
Canada requires self-monitoring for pulp and paper manufacturers and metal
mining operations. Frequency of monitoring can range from continuously to monthly. Pulp
and paper mills are required to monitor Biochemical Oxygen Demand three times a week,
Total Suspended Solids daily, acute lethality weekly (using Daphnia magna) and monthly
(using rainbow trout), and pH, flow, and electrical conductivity continuously.
If a facility fails the monthly acute lethality test using rainbow trout, the test
frequency is increased to weekly. In addition, pulp and paper facilities are required to self-
monitor the chemicals 2,3,7,8-TCDD and 2,3,7,8-TCDF during each month in which the
chlorine bleach plant was operating. If no measurable concentrations are detected for
three months, the frequency is dropped to quarterly. The regulated facility may have a
qualified laboratory onsite to collect and analyze the samples, or it may hire outside
contractors to collect or analyze the samples.
7.8 Citizen Monitoring
7.8.1 Citizen Monitoring Generally
Citizen monitoring can help government agencies identify violations and is particularly
important when resources for government monitoring are scarce or insufficient. Citizens can
contribute to enforcement efforts by tracking industrial environmental performance through
independently compiled emissions data or compliance reports produced by regulated entities.
In some countries, governmental institutions make use of citizen monitoring that may
already be taking place, independent of any authorizing legal provisions. Formal cooperative
partnerships are also sometimes established between citizens and the government for
monitoring. For example, in the United States, a number of citizen organizations teach citizens
to walk streams, identifying locations of pollutant emissions and observing the effects of those
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emissions on water quality or indicator species. The Izaak Walton League of America is one
such organization that trains citizens to monitor the environment. Their findings are reported to
federal and state agencies through a national clearinghouse. State agencies also help to fund
the League's training and reporting programs.39
Another formal vehicle for public participation in monitoring is the establishment of
coordination agreements between the government and citizen organizations. In the Philippines,
multi-party monitoring has enabled local community residents, NGOs, and industrial project
proponents to join representatives from the Department of Environment and Natural Resources
to undertake post-environmental impact analysis compliance monitoring. The Department
institutionalized multi-party team monitoring by creating, in each regional office, a Regional
Community Advisory and Monitoring Committee whose membership includes NGOs and the
private sector. The law requires that committees be involved in all phases of the environmental
impact analysis, including compliance monitoring.40
An increasingly useful monitoring mechanism for citizen enforcement of industrial
environmental standards is the use of pollutant release and transfer registers. These registers
enable citizens to monitor industrial environmental performance by providing detailed facility-
specific data on types, locations, and amounts of hazardous substances released on-site and
transferred off-site. In several countries, including Canada and the United States, certain
corporations are required by law to compile and submit this data to the federal government,
which then makes the information publicly accessible. Equipped with detailed information on
facility-specific emissions, citizens can track compliance, work directly with corporations to
encourage compliance, and help governments identify violations.
The specific type of information reported in pollutant release and transfer registers and
the range of facilities covered vary from country to country. Key elements that define the scope
of such registers include: the types of facilities required to report; the thresholds for staff size
and chemical use above which a facility must report; and the types of pollutants covered and
how their use is quantified.
7.8.2 Citizen Involvement in Inspections
Some countries allow citizens to participate in compliance inspections conducted by
government officials. Usually, the citizen must have been involved in the complaint process
prior to the inspection. For example, water quality legislation in Argentina allows private parties
who have filed a complaint about a facility to participate in any inspection of the facility during
the investigation.41 In some countries, government agencies are allowed to contract with citizen
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groups or other associations to enlist their assistance in inspection efforts. (See Box 7-9 for
examples).
BOX 7-9: EXAMPLES OF CITIZEN INVOLVEMENT IN INSPECTIONS
42
In some countries, government agencies are allowed to contract with citizen groups or
other associations to enlist their assistance in inspection efforts. For example, under Estonia's
Nature Protection Act, citizens can be deputized as "public inspectors" to monitor compliance
with laws, regulations, and permits concerning hunting, fishing, and forestry.43 They are
permitted to write protocols about violations of nature protection rules, but they cannot take
payment.
Some countries allow citizens to demand inspections under limited circumstances. For
example, in the Czech Republic, under the Building Act, parties to the land planning decision
and investment permitting process have the right to demand the inspection of facilities before
and after completion.44
7.8.3 Public Complaint Processes
Public complaint processes facilitate citizen participation in administrative enforcement
efforts in many countries. Typically, these processes establish a mechanism for citizens to
submit complaints to the government concerning activities that are causing environmental harm
or ecological imbalance. The government is then required to address complaints and respond
in a timely manner. Public complaints can be very useful in drawing government attention to
enforcement problems that may otherwise go unrecognized or escape proper response.
Some countries have an independent complaint committee or designated staff member
(ombudsman) at the national or local level established to handle citizen complaints. These
institutions are usually funded by, but otherwise independent of, the government and are
competent to deal with complaints on the basis of statutory rules. Oftentimes, the laws creating
the ombudsman position regulate what kinds of complaints may be reviewed.
Poland, for example, created a position called the Commissioner for Civil Rights
Protection. The Commissioner's role is to receive and manage complaints about infringements
of citizens' rights and freedoms determined by the Constitution and other provisions of law. The
position is not specific to environmental law, but environmental issues fall under the
Commissioner's jurisdiction and historically have been the foci of some of its activities. The
Commissioner does not have authority to rule on administrative matters, but can recommend or
appeal decisions, suggest legislative initiatives or procedural amendments, and pursue
solutions to specific violations to promote compliance with the law.45
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Citizens may also be able to use informal complaint mechanisms or petitions to draw
government attention to enforcement issues. In Mexico, for example, the Federal Ecology Law,
and parallel state laws, enables any person to file a complaint with the Federal Environmental
Protection Agency regarding acts or omissions causing ecological imbalance or injury to the
environment.46 The Agency then is required to investigate the problem and issue publicly
available, non-binding recommendations. These recommendations may have evidentiary value
for future litigation. If the Agency finds violations, it may take immediate administrative action.47
Throughout Mexico, this process is the principal vehicle for public participation in administrative
enforcement matters, and it seems to be an important mechanism for focusing government
attention on enforcement problems. To receive complaints, two states have established toll-free
telephone "hotlines," and another staff has set up a green mailbox.
7.9 Area Monitoring
Additional 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.
7.9.1 Ambient Monitoring
Ambient monitoring 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 significant 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. Otherwise, ambient data rarely can be used alone to prove a violation
because of the difficulty of proving a connection to the source.
7.9.2 Remote Sensing via Satellite and Aircraft
Satellites and aircraft can be used as remote tools to monitor compliance with
environmental requirements and help target inspection activities. Satellites can provide detailed
information on indicators of non-compliance, such as chemical spills, impervious surface area,
forest cover, oil discharges, smoke plumes, illegal development or logging, and mining
operations. Commercial satellite imagery is available in sub-meter resolution.
Similarly, aircraft over flights can be used for compliance monitoring and promotion.
Over flights can be used to make detailed, time-sensitive observations of potential areas of
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illegal activity. For example, aircraft-mounted cameras can monitor the location and condition of
dikes and fences at a regulated facility, observe loading and unloading of hazardous materials,
and even record physical evidence such as license plate numbers. Over flights may also be
used to detect facilities subject to environmental requirements, detect facilities that may not
have registered for a program or filed required notifications, and determine the relative locations
of wastewater discharges, air emissions, hazardous waste management facilities, water supply
intakes, populated areas, etc. Box 7-10 offers an example of over flights in the Netherlands.
BOX 7-10:OVER FLIGHTS IN THE NETHERLANDS
Over flights have been used very successfully in the Netherlands. Airplanes and
helicopters are used in a pollution context to detect illegal discharges and dumps and in a
biodiversity context to detect illegal timber removal or illegal land clearing. The responsible
parties are notified about the detected violations and requested to act where necessary. The
program became more successful when helicopters began to work simultaneously with ground
vehicles. Sighted violations were reported to ground personnel who immediately proceeded to
the scene and dealt with the situation. Periodic aerial photographs of wreck yards and
dumpsites provide a good record of these operations and chronicle the change enacted by
these enforcement activities. Where appropriate, these photographs can be used in later
investigations.
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8. ENFORCEMENT
8.1 Introduction
Enforcement is the backbone to any compliance program. Strategies involving education
and assistance, monitoring and inspections, and incentives are only effective if backed by a
credible threat of enforcement sanctions.
Effective enforcement programs deter illegal conduct by creating negative
consequences for those who violate the law. A single enforcement action can have a cascading
effect on potential wrongdoers, encouraging them to change their behavior to comply with the
law. For deterrence to be effective there must be: 1) a high likelihood that the violation will be
detected; 2) swift and predictable responses to violations; 3) responses that include appropriate
sanctions; and 4) a perception among violators that all of these elements are present.
This section discusses the enforcement process, designing an enforcement response
policy, types of enforcement responses, choosing between enforcement responses,
negotiations and settlements of disputes, and citizen enforcement.
8.2 The Enforcement Process
8.2.1 Protecting Basic Rights
Every nation has its own unique legal system, laws, and culture. However, most
democratic institutions have processes to balance the rights of individuals with the government's
need to act, often quickly, on behalf of the public. Processes that may be used to ensure
fairness of enforcement responses include:
• 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; or 2) 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 the finding that there is a violation, the remedial action required by the
enforcement program, or the severity of the proposed sanction.
• Dispute Resolution. 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.
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In general, the more an enforcement action would restrict individual rights, the more
protection the enforcement process provides, and the longer the process may take before final
action is initiated.
8.2.2 Supporting the Enforcement Case
In typical enforcement actions, targeted parties will challenge findings, and officials will
have to defend them in administrative proceedings or court. Therefore, 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."
• 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 in
a jurisdiction where the rule of law is well developed and it is being argued in front of
an independent decision-maker 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., pollution control
equipment, stopping a particular activity). Even though this is not usually the
responsibility of the government, this information can be important to negotiations.
• Justify the proposed penalty.
8.2.3 Public Comment
In some types of cases and countries, such as in the United States, the public has a
right to comment on enforcement agreements, orders, and decrees before they are final. All
final agreements, orders, and decrees become publicly available. 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 precedents if they are favorable or distinguish them
if they are not.
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8.3 Designing an Enforcement Response Policy
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 important to ensure fairness. Fairness is particularly important when assessing monetary
and criminal penalties. Fairness, and the perception of fairness, is critical to the credibility of an
enforcement program. Key issues to consider when drafting an enforcement response policy
are discussed below.
8.3.1 Criteria for Non-compliance
Whether a facility is in compliance is not always obvious. Specific guidelines and criteria
are needed to distinguish compliance from non-compliance. These standards help ensure that
all members of the regulated community are treated consistently and that enforcement is
perceived as fair.
8.3.2 Authorities
To provide effective enforcement, the environmental management program needs the
authority to act. In most countries, the range and type of response mechanisms available
ultimately depend on the number and type of authorities provided to the enforcement program
by environmental laws and related laws defining the enforcement processes. These authorities
provide the legal basis for enforcement that is essential to the power and credibility of an
enforcement program. Box 8-1 summarizes a range of authorities that may be useful for an
enforcement program.
BOX 8-1: TYPES OF ENFORCEMENT AUTHORITIES
48
Authorities Related to Remedial Actions
• Enter a facility.
• Take samples.
• Take documents.
• Question personnel.
• Impose a schedule for compliance.
• Permanently shut down certain parts of operations or practices.
• Temporarily shut down certain parts of operations or practices.
• Permanently shut down an entire facility.
• Temporarily shut down an entire facility.
• Deny a permit.
• Revoke a permit.
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• Require a facility to clean up part of the environment.
• Emergency powers to enter and correct immediate dangers to the local population or
environment.
• Seek compensation for damage caused by the violation.
Other Authorities
• Require specific testing and reporting.
• Impose specific labeling requirements.
• Require monitoring and reporting.
• Request information on industrial processes.
• Require specialized training (e.g., in emergency response to spills) for facility
employees.
• Require a facility to undergo an environmental audit.
Authorities Related to Sanctions
• Impose a monetary penalty with specified amounts per day per violation.
• Seek imprisonment.
• Seek punitive damages or fines within specified limits.
• Seize property.
• Seek reimbursement for government clean-up expenses.
• Bar a facility or company from government loans, guarantees, or contracts.
• Require service or community work to benefit the environment.
• Place limitations on financial assistance.
8.4 Types of Enforcement Responses
Enforcement responses generally fall into the following categories (Figure 8-1):
FIGURE 8-1 : TYPES OF ENFORCEMENT RESPONSES
1
Informal or Formal
1
Civil
1
Administrative
1
1
i
Criminal
Judicial
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8.4.1 Informal Mechanisms
Informal responses include phone calls, site visits, warning letters, and notices of
violations. (See Box 8-2). Informal responses advise the facility manager what violation was
found, what should be done to correct it, and when. The goal of informal action is to bring the
violator into compliance. Many environment ministries prefer using informal, cooperative
methods to gain compliance. Informal responses themselves do not penalize and cannot be
enforced, but often lead to more severe response if they are ignored.49
BOX 8-2: TYPES OF INFORMAL RESPONSES
Telephone Call
This is the easiest 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 up with a letter that
describes what action was taken to correct the violation.
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 data about the problem.
This better prepares the program for taking further action, if necessary, and displays the
program's seriousness about following up if compliance is not achieved.
Warning Letters
Warning letters let facility managers know that they are violating the law and must
correct the situation or face adverse legal action and other consequences. A warning letter may
describe the potential sanctions for continued non-compliance, require a response from the
violator detailing the corrective action taken, and suggest that the violator meet with compliance
officials to discuss a plan for compliance. Other responses are considered if the violator fails to
take advantage of this opportunity within a reasonable time.
Notice of Violation
Notices are more formal than warning letters. They notify a source that a violation has
been detected and often give a deadline for taking corrective action. Notices of violation also
warn about legal action and consequences that will follow if the violator does not take action by
the deadline.
8.4.2 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 may be
either civil or criminal as described below. Many countries have both civil and criminal
remedies, while some have only criminal and administrative options. As indicated in Figure 8-1,
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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). Law must provide authority enabling
the enforcement program to use formal enforcement mechanisms.
8.4.3 Civil Administrative Enforcement
There are two major types of civil administrative enforcement actions: orders and field
citations.
Civil administrative orders are legal, independently enforceable orders issued directly by
enforcement program officials. The order defines the violation, provides evidence of the
violation, and requires the recipient to take corrective action within a specified time period. If the
recipient violates the order, program managers usually can take further legal action using
additional orders (or a court system) to force compliance with the order directly. 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.
In the United States, administrative enforcement has two advantages. First, it does not
require coordination with a separate prosecutorial agency. The other is that the administrative
organization's own administrative law judges are specialized and usually more familiar with
environmental requirements than judges in the general court system may be. Therefore,
administrative actions usually are resolved more quickly and require less time and expense than
judicial actions. This benefit may not exist, however, in countries where administrative law
judges preside over cases from various administrative agencies, not just environmental
agencies.
In the United States, as in most countries, administrative orders are not self-enforcing. If
there is not compliance with the order, further enforcement action must be pursued through the
judicial system.
Field citations are administrative orders issued by inspectors on-site in the regulated
facility or "field." Typically, they require the violator to correct a clear-cut violation and pay a
small monetary fine. Field citations are much like motor-vehicle traffic tickets. Depending on
the procedural steps defined by the program, the violator can appeal the citation, pay it, or do
nothing and risk more formal enforcement action. Recipients of field citations are often given
opportunities to be heard and present evidence, but they usually do not have access to the full
procedural protections provided by other enforcement actions.
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Field citations can be a relatively efficient means to address 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.
8.4.4 Civil Judicial Enforcement
Civil judicial enforcement actions are formal lawsuits before the courts. Some nations
with civil environmental enforcement authority rely exclusively on civil judicial actions to enforce
environmental laws. Other nations have adopted both administrative and judicial mechanisms
to carry out civil enforcement actions. Where available, administrative enforcement generally is
preferred as a first response (with some exceptions), because judicial lawsuits are far more
expensive, require more staff time (and often more sophistication), and may take several years
to complete.
However, judicial enforcement has several advantages. It is often perceived as having
greater significance than administrative enforcement and therefore more power to deter
potential violations and set legal precedents. Also, the courts are often uniquely empowered to
require immediate action to reduce more severe threats to public health or the environment. In
particular, courts can usually grant preliminary injunctions, which order the suspension of
activities that could cause irreversible harm pending trial. 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 both administrative and judicial enforcement
mechanisms are available, civil judicial responses are generally reserved for more serious or
recalcitrant violators, cases where precedents are needed, or situations where prompt action is
important to shut down an operation or to stop an activity.
8.4.5 Criminal Enforcement
Criminal judicial response is generally considered appropriate when a person or facility
has knowingly violated the law, or has otherwise committed a violation for which society has
chosen to impose the most serious legal sanctions available. Criminal sanctions may include
imprisonment of culpable individuals in addition to monetary penalties. Criminal environmental
sentences now may include supplementary requirements such as community service,
environmental audits, restitution or remediation so that a criminal case may achieve
environmental benefits in addition to punishing the wrongdoer.
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
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its employees) was knowingly responsible for the violation. Compare this to a civil or
administrative case where a sanction can be imposed if the government simply proves the
existence of a violation without regard to level of care or intention of the violator. Criminal cases
typically provide more powerful information-gathering authority than the civil case. Therefore,
specially trained criminal investigators may be necessary to develop criminal cases.
While a criminal response can be the most difficult and expensive type of enforcement, it
can create the most significant deterrence and normative impact, since it personally affects the
lives of those who are prosecuted, and carries with it a significant social stigma. Criminal
sanctions can also help educate or shape preferences of potential violators in the regulated
community. (See Box 8-3). The criminalization of environmental violations raises the norm of
environmental protection to a higher level. When the public sees people going to jail for non-
compliance, it adds credibility to the norm and thereby promotes compliance.
The ability to apply criminal enforcement to environmental cases depends on a country's
legal system and on whether appropriate authority is provided in environmental or other laws.
Non-environmental laws can often support environmental compliance. For example, in many
jurisdictions there are generic statutes that make it a crime to report false information to the
government or to defraud the public. In addition, an actor may be guilty of homicide if its
environmental non-compliance caused fatalities.
Where a corporation is guilty of violating criminal law, the company can be placed on
probation or strict judicial supervision. The loss of corporate autonomy serves as a powerful
deterrent to other potential violators. Criminal convictions often also carry different
consequences from those carried by civil judgments. A criminal conviction may result in the
corporation being barred from being awarded government contracts, grants, or loans, or open
the corporation to shareholder derivative suits or charges of securities fraud. In some cases, a
criminal conviction may be admissible against the defendant in subsequent civil cases (whereas
admission of a civil judgment may be barred by a rule of evidence). Under tax and bankruptcy
laws, criminal fines may have treatments different from civil monetary penalties.
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BOX 8-3: BRAZIL'S ENVIRONMENTAL CRIMES LAW50
The Brazilian Environmental Crimes Law was passed in March of 1998 and is
considered to be one of the most modern and comprehensive legal texts focusing on
environmental crime. Some of the specific articles that give this law force are highlighted and
explained below.
Broad Culpability
Article 2 is important because it establishes culpability, not only for the person who
actually breaks a law, but notably also for any person in a position of authority who knew about
the illegal activity and failed to stop it or inform the appropriate authorities.
Assignment of Penalties
Article 6 outlines three general criteria that should be considered in the assignment of
penalties for an environmental law violation. They are:
• The seriousness of the act and the intent of the person who committed the act and
additionally the seriousness of the repercussions of the act on the environment and
human health.
• Whether the person who committed the act has a history of environmental law
violations.
• The financial situation of the person who violated the environmental law.
Aggravating and Mitigating Circumstances
"Aggravating circumstances" are factors that can make a penalty more severe. The law
requires that these factors be considered when assessing the seriousness of a crime:
• Frequency of the environmental crimes.
• Whether the offender was motivated by monetary gains, coercing another to commit
the crime, or serious endangerment of public health.
"Mitigating circumstances" are factors that can make a penalty less severe. The law requires
that these factors be considered when assessing the seriousness of a crime:
• Low educational level of the offender.
• The offender's remorse, exhibited by spontaneous reparation of the environmental
damage or limitation of the harm caused.
Crimes Against Fauna
Section I of the law contains a detailed list of actions that are considered to be crimes
against fauna, or animal life. A person who commits one of these acts has automatically
violated the law and is subject to the prescribed penalty, imprisonment for six months to one
year and a fine.
The law also includes the aggravating and mitigating circumstances that should be
considered when determining the penalties. For example, the penalty is increased by half, if the
crime is committed:
Against rare species or species considered endangered, even if only at the site of
violation.
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• In the period in which hunting is prohibited.
• During the night.
• By abusing the license.
• Within a protected area.
• Using method or instruments capable of provoking mass destruction.
Crime Against Flora
Section II of the law contains a detailed list of actions that are considered to be crimes
against flora, or plant life. A person who commits one of these acts has automatically violated
the law and is subject to the prescribed penalty, which varies according to the crime. The law
also includes the aggravating and mitigating circumstances that should be considered when
determining the penalties. Thus, for the examples given here, the penalty is to be increased by
one-sixth to one-third if:
A result of the act is the decrease of natural waters, soil erosion, or modification of
climatic regime.
The crime is committed: during the period of seed dispersion; during the period of
vegetation formation; against rare or endangered species, even if only endangered at the site of
the crime; during times of flooding or drought; during the night, on Sundays, or holidays.
Pollution and Other Environmental Crimes
Section III of the law contains a detailed list of actions that are considered pollution and
other environmental crimes. A person who commits one of these acts has automatically
violated the law and is subject to the prescribed penalty. The law also includes the aggravating
and mitigating circumstances that should be considered when determining the penalties.
Crimes Against Environmental Administration
The section on crimes against environmental administration generally includes violations
committed by civil servants that harm the environment in some way. For example, making false
statements or issuing environmental permits illegally. The penalties for each of these types of
violations are prescribed in the law, as well as the aggravating and mitigating circumstances.
8.5 Choosing Between Enforcement Responses
Selecting an appropriate enforcement response raises several difficult issues, discussed
below, which often need to be addressed in an enforcement response policy. These issues
sometimes may be addressed in the wording of the authority provided by the environmental
laws.
8.5.1 When Should Civil or Criminal Responses Be Used?
In many jurisdictions, administrative, civil, and criminal charges can be brought for
violations of environmental laws. Serious violations are usually met with criminal charges.
Many authorities believe that criminal charges should be imposed the second time a company is
found to be out of compliance. Administrative sanctions include shutting down all or part of a
company's operations and fining the company for each day it remains out of compliance.
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Criminal sanctions include prison sentences, fines, forfeiture of property, and publicizing the
court's verdict.
This issue is relevant only to countries that have or are considering implementing both
civil and criminal authorities. In some jurisdictions, criminal enforcement actions are generally
reserved for actions that deserve punishment, rather than correction (e.g., where the violation is
intentional). Criminal actions are also used to ensure the integrity of the regulatory scheme,
(e.g., to prevent facilities from operating without a permit or license). Factors that many
jurisdictions consider when deciding whether to initiate a criminal enforcement action include
actions that involve:
• Falsifying documents.
• Operating without a permit.
• Tampering with monitoring or control equipment.
• Repeated violations.
• Intentional violations (e.g., decisions to violate based on greed).
In addition to these considerations, environmental management programs must weigh
the following when choosing the type of enforcement:
• Cost. Civil proceedings are generally less taxing on program resources (e.g., time,
money, and personnel). Administrative proceedings tend to be the least costly of the
three.
• Resistance. Criminal cases evoke stronger resistance from the targeted actor than
civil litigation, and administrative action receives less resistance.
• Control. Regional program personnel typically have more control over
administrative proceedings. Civil cases usually involve more "headquarters"
personnel. Criminal cases are often litigated by a separate entity (e.g., the
Department of Justice in the United States). Administrative actions also avoid use of
external judges and juries. (See Box 8-4).
8.5.2 When Should a Sanction Be Imposed?
For certain types of enforcement responses, it may be sufficient to negotiate a
compliance schedule where the violator agrees to return to compliance and clean up a pollution
situation by a certain date. But for other types of enforcement responses, sanctions may be
needed in addition to other remedies. When deterrence is important to a program's compliance
strategy, maximum impact will be achieved if each enforcement action is used to send a
deterrence message to the regulated community. Sanctions help send this message.
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Sanctions range from issuance of formal administrative orders, formal notices of non-
compliance, and administrative consent orders, to fines, property seizures, facility closures, and
imprisonment. However, sanctions may not be appropriate for violations that are not
preventable, or that are too minor to focus government resources on imposition of a sanction.
These considerations need to be balanced in deciding when to impose a sanction.
BOX 8-4: GUIDELINES FOR PROSECUTING ENVIRONMENTAL CASES IN THE UNITED
STATES51
In 2007, the U.S. Environmental Protection Agency (EPA) released guidance to help
determine which criminal enforcement actions to pursue under its "high impact policy." This
policy is intended to focus EPA enforcement actions on those cases with the greatest potential
to protect human health and the environment. The policy is a response to criticism that the EPA
has pursued fewer case referrals for civil and criminal violations of environmental laws in recent
years. In selecting environmental violations against which to bring enforcement actions, the
guidance considers whether a violation carries significant harm or risk of harm, what cases are
likely to promote deterrence, and what cases would promote agency and national enforcement
priorities.
8.5.3 Should a First Enforcement Response Include a Sanction?
There are two basic approaches to this issue. One approach does not seek a sanction
for a first violation but imposes a stiff sanction if non-compliance continues. This approach is
based on the belief that every facility should be given at least one opportunity to correct its
problems before it receives a sanction. This first approach is most successful when violations
are easy to 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 non-compliance.
The second approach is to impose sanctions for first violations. This is based on a belief
that lack of a penalty may encourage facilities to postpone compliance activities until the
violation has been detected. This approach is essential for violations that are difficult to detect.
Without the threat of a sanction, a facility might be willing to play the odds that it will not be
detected, with the thought that it will only fix the problem if detection occurs.
8.5.4 What Type of Sanction Should Be Used?
Depending on the authorities provided in environmental laws (see Box 8-1), enforcement
officials often have a choice among several types of sanctions. As mentioned above, sanctions
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range from issuance of formal administrative orders, formal notices of non-compliance, and
administrative consent orders to fines, property seizures, facility closures, and imprisonment.
The enforcement policy will need to provide guidance on when these various types of sanctions
are appropriate.
8.5.4.1 Monetary Penalties
Monetary penalties are the most common sanction used in enforcement responses.
Environmental management programs may choose from numerous kinds of monetary penalties
including fines specified per day per violation; punitive damages, including treble damages for
violation for the failure to comply with a government order; reimbursement for government
clean-up expenses; and even disqualification of the violating firms from government loans,
guarantees, contracts, or financial assistance.
An enforcement policy needs to provide guidance on how to calculate an appropriate
penalty for various types of violations. There are two significant constraints on the amount of a
fine. First, while theory and empirical evidence suggest that high fines are effective deterrents,
the political will to apply them is sometimes lacking. Second, if the fine is too large (i.e., the
target cannot afford to pay) then it will be perceived as unfair and will undermine both its
normative and deterrent effect. Therefore, an appropriate fine is one that balances the
economic factors listed in Box 8-5.
8.5.4.2 Denial or Re vocation 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 either to cease (at least part of) its operation or
operate in clear and direct violation of the law.
8.5.4.3 Shutdown of Operations
Program officials may be able to shut down operations. The threat of a shutdown can be
an effective deterrent by directly and immediately affecting a company's profits.
8.5.4.4 Forced Shifts to New Technologies and Processes
Firms found in violation can be forced to re-evaluate their technologies and processes.
This option has the advantage of addressing the environmental impact at issue, while improving
the firm's environmental management to address future impacts. Such "innovation offsets"
cannot only improve product quality and value but also may lower the total cost by allowing
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companies to use a range of inputs more efficiently. Ultimately, this enhanced resource
productivity can make companies—and countries—more competitive.52
BOX 8-5: FACTORS THAT MAY BE USED TO CALCULATE A MONETARY PENALTY
Gravity of the Actual or Potential Harm to the Environment and Human 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 as:
• Volume of release.
• Toxicity of release.
• History of non-compliance.
• Environmental and public health risk or impact.
• Importance to maintaining the integrity of the enforcement program.
Economic Benefit
Penalties can remove the economic advantage of non-compliance by recovering the
economic benefit a violator may have gained by not complying. This type of penalty is important
to maintaining fairness by ensuring that compliant facilities are not economically disadvantaged
relative to non-compliant ones. These penalties remove the economic benefits of non-
compliance, which include both avoided costs and profits from postponed expenditures.
Avoided costs include operation and maintenance expenses that cannot be spent later, while
benefits from postponed costs capture the time value of money or the interest earned when
infrastructure or equipment is not installed when required. Penalties must be calculated to
cancel out both benefits.
Ability to Pay
Enforcement officials must often consider a violator's ability to pay when calculating a
monetary penalty. Penalties that are large compared to the facility's resources could force a
facility to shut down, which can harm the overall community. Facilities that are given a severe
monetary penalty may also threaten to move to another area where environmental regulation
and enforcement are 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 in 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.
Other Factors
Other factors may include:
• Degree of cooperation by facility personnel with environmental officials.
• Whether the violation was self-reported by the facility.
• Degree of remorse by the responsible parties.
• The strength 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 it worthwhile for the violator to try to appeal the penalty.
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8.5.4.5 Prison Sentences
Criminal sanctions for managers or employees of violating facilities can be an extremely
effective deterrent. Criminal sanctions can be imposed only where allowed by the legal system.
For example, criminal sanctions can be sought if someone knowingly violates an environmental
requirement or fraudulently reports data. Under U.S. Sentencing Guidelines, sentences for
environmental crimes committed by corporations can be reduced if the corporation 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.
Criminal sanctions may be a difficult tool to utilize due to the extreme stigma associated
with prison and/or the amount of resources often necessary to operate environmental crimes
programs capable of routinely winning criminal convictions. In societies that place great
emphasis on economic development, corporate or industry management officials may command
large amounts of esteem and stature. This can make regulators hesitant to request
enforcement measures as harsh as jail terms, and difficult for judges to impose criminal
sanctions. It could also pressure regulators to discriminate when applying such measures.
Both such results would tend to undermine respect for the regulation and would therefore
impede compliance.53
8.5.4.6 Denial of Government Funding
When violators are denied government funding, they are placed on a list of firms from
which government agencies will not purchase goods or services and to which the government
will not provide loans or guarantees. The lists are shared among all government agencies, and
the firm's name is not removed until the firm returns to compliance. This is a valuable tactic
when an industry depends on government purchases, loans, or grants but obviously not
applicable to all firms.
8.5.4.7 Negative Publicity
As part of a sanction, 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 its 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.
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8.5.5 Compensation for Environmental Damages
Environmental damage compensation can take two basic forms, monetary payments or
restoration actions. Both require measurement of the environmental harm that was caused,
sometimes a difficult task as intrinsic environmental benefits may be hard to put into economic
terms. In addition to determining the amount of lost resources a monetary damage assessment
also requires an estimate of the cost of restoring the resource and economic estimates of the
value of the resources lost.
Damages are not the same as penalties. Both damages and penalties may be sought
for the same action or event, for example, the release of a hazardous substance. Penalties are
punitive and are paid to the government for violating the law. Damages are not punitive; they
are compensation paid, or actions taken, to restore the environment and people injured by the
event. The government acts in the public interest in seeking restoration damages in the same
way that a company would seek damages for harm done to their property.
8.5.6 Penalty Calculation
Penalties must be administered with great care and balance. Too light a penalty will not
compel the regulated community to comply. If the penalty is too severe, the regulated
community will perceive the regulation as unfair, and may expend resources fighting the
regulation rather than complying with it.
It is important to keep in mind the difference between theoretical legal principles and
practical application of these principles. Generally speaking, a low level of monitoring success
(which is the result for monitoring systems) requires high penalties for deterrence. However,
many courts will not deem high penalty levels proportionate to the offenses, and therefore it is
unlikely that high penalties will be upheld or imposed by a court. Regardless, it is valuable for
regulators to think through the different factors for calculating an appropriate monetary penalty.
(See sample worksheet in Box 8-6; Box 8-7 provides a case example of a fixed monetary
penalty).
8.5.7 Escalation of Sanctions
When an initial inspection reveals a facility to be in non-compliance, and a later
inspection finds continuing violation, additional deterrence may be required. For this reason, it
may be desirable to have a sliding scale of sanctions, which escalates with each new violation.
At the top of the scale may be criminal penalties, both for the companies and for individual
managers.
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BOX 8-6: SAMPLE WORKSHEET TO CALCULATE A MONETARY PENALTY54
Facility Name: XYZ, Inc.
Money the Facility Saved by Not Complying with Regulations
Costs avoided $10,000
Costs postponed $ 5,000
Total (a) $15.000
Seriousness of the Violation
PAYMENT CALCULATION MATRIX
Potential for Harm (vertical)
Extent of Deviation from Requirement(s) (horizontal)
High
Medium
Low
High
$5000 to $4000
$2199 to $1600
$599 to $300
Medium
$3999 to $3000
$1599 to $1000
$299 to $100
Low
$2999 to $2200
$999 to $600
$99 to $20
Penalty required based on potential for harm and extent of
deviation from requirement (use the above matrix and personal
judgment to determine the appropriate amount):
Adjustment for the Duration of the Violation
Number of days of non-compliance
Total = [(b) x (20%)] x (c)
SUBTOTAL
Subtotal = (a) + (d)
Penalty Adjustment Factors55
1. Degree of cooperation (+/-)
2. History of compliance (+/-)
3. Supplemental environmental projects56 (+/-)
4. Ability to pay (-)
Total = [(f) + (g) + (h) + (i)]x (e)
TOTAL PENALTY
Total penalty = (e) + (j)
(b)
(c) 50
(d) $30.000
(e) $45.000
(f)
(9)
(h)
+5%
-5%
-10%
-5%
0)
0) -$6,750
$38,250
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8.6 Negotiations and Settlements of Disputes
8.6.1 The Role of Negotiation
Enforcement actions create a stimulus and context for discussion and resolution.
Negotiation is an integral part of enforcement. It is often used within the context of legal
enforcement proceedings, and it enables both the facility and the concerned party or parties to
consider the accuracy of facts, circumstances of the case, and variety of alternative responses.
Negotiation provides an opportunity to obtain additional information and correct
misinterpretations before pursuing legal action. It also provides an opportunity to reach a
solution that satisfies all parties. Compliance can be enhanced when a signal is sent to the
regulated community that, while pursuing an 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.
BOX 8-7: ASSESSING AND VALUING DAMAGE UNDER THE COASTAL ZONE
MANAGEMENT ACT OF BARBADOS57
The Coastal Zone Management Act, Law No. 1998-39, stipulates that any person
damaging coral is guilty of an offense and is liable on summary conviction to a fine of $300.00
BED (approximately $148.50 US) for every square meter of coral reef damaged,
imprisonment for five years, or both. There is a standard procedure to determine the extent of
damage to the coral reef area; the extent is usually spatial (length by width), but in some
cases the depth of damage is also considered. This is mainly focused on anchor damage
from dragging or chain sweeps. Fines are set forth in the Act. This method of valuing coral
reef damage informs all processes of assessing compensation (including out-of-court
settlements).
The Act also provides that any person who breaks off a piece of coral from a reef is
guilty of an offense and is liable on summary conviction to a fine of $5,000.00 BED
(approximately $2,475 US), imprisonment for two years, or both. This fine is applied to
persons caught "picking" corals for sale. As a practical matter, these cases can be difficult, as
it is necessary to capture the individual with the corals in their boat while in the process of
harvesting.
Negotiation is generally most effective when supported by a continuing threat of civil
enforcement. If the threat abates, some facilities might attempt to use negotiation as a means
of delaying compliance. Program officials can keep the threat real by maintaining a strict
schedule for negotiation and a parallel preparation for legal action.
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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,
and non-governmental organizations). In some negotiations, particularly where an impasse is
reached, an experienced third party may be used to change the dynamics, provide new
perspectives, and propose possible solutions that had not previously been considered. Box 8-8
describes some typical dispute resolution procedures.
The result of negotiations is a settlement—a documented official resolution to the
situation, referred to as an "administrative consent order" or a "judicial consent decree" in the
United States. The settlement is a legally binding agreement between the violator and the
enforcement program (administrative) or a negotiated agreement that must be submitted to a
court for consideration and final approval (judicial).
Two types of enforcement response usually are not negotiated. One is a request by
enforcement officials for information from the violator. This usually is 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 an emergency, there is no
time to negotiate.
BOX 8-8: TYPICAL DISPUTE RESOLUTION PROCEDURES
Face-to-face negotiations between program officials and the violator
These occur either:
• Before formal enforcement response is pursued. At this point in the process, the
negotiation usually focuses on whether there has been a violation. If agreement is
reached, there also may 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 negotiations. The
resulting agreement, or an administrative order, is placed before a final decision-
maker, such as a judge, for approval.
Presentations before a decision-maker
In dispute resolution, often a judge or hearing examiner makes a decision about a fact
or legal point after hearing both sides of the issue.
Use of third parties
Third parties (e.g., mediators, arbitrators, and facilitators) may be called for by
program officials or by agreement of the parties to break an impasse. An experienced third
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 may be unlikely to understand fully.
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8.6.2 Creative Settlements: Leveraging Enforcement for Broader Results
Settlements 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 for solving environmental problems through settlements.
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 often are linked to some limited reduction in monetary penalty or to
an agreement to extend compliance schedules. Creative settlements also may be sought for
violators with limited ability to pay or who demonstrate a strong level of cooperation with the
government/enforcement program. In order to be effective, creative settlements should at the
very least seek to capture the economic benefits of non-compliance.
8.6.2.1 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 abated when the volume or the toxicity of pollutants is reduced. In
manufacturing, for example, pollution prevention includes activities such as substituting
chemicals, reformulating products, modifying processes, improving house-keeping, and
recycling on site.
Pollution prevention projects may correct the violation directly or may reduce pollution
unrelated to the original violation. Pollution prevention settlements help to ensure that violations
will not recur, and they reduce the total risk that a facility's operation poses to public health and
the environment.
8.6.2.2 Pollution Reductions Beyond the Level Required for Compliance
Settlements can be negotiated in which the violator agrees to reduce pollution beyond
the level required for compliance with the requirements.58 For example, a violator may agree to
install more effective control technologies that reduce the overall discharge of pollutants.
8.6.2.3 Environmental A uditing
Environmental auditing is a periodic, systematic, documented, and objective review of a
regulated facility's compliance status, management systems, and overall environmental risk.
Many nations, as well as the International Chamber of Commerce, have encouraged the use of
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auditing as an essential tool for regulated facilities to ensure compliance and effectively manage
their environmental risks.
Environmental audits are sometimes required as part of settlements in two situations.
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
pays 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 facilities
owned by the same company, a settlement may include an agreement that: 1) the company or a
third-party auditor will audit for that violation at the other facilities owned by the company; and 2)
any violation will be reported and corrected.
8.6.2.4 Environmental Restoration
As a result of an environmental restoration settlement, a facility not only repairs the
damage done to the environment because of the violation, but also agrees to provide further
enhancement of the local environment. If the environmental damage caused cannot be
restored, the settlement may require the facility to restore a comparable environment in another
location.
8.6.2.5 Publicity
In public awareness settlements, the violator agrees to undertake some activity to
increase the awareness in the regulated community of the need for compliance and ways to
achieve it. For example, the violator could sponsor a series of seminars to provide information
to a specific industry group on how to correct violations common to that industry. The violator
could also sponsor public announcements on television and radio to discourage violations or
describe how new technologies can be used to correct violations. 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 an enforcement action brought by the government.
8.6.2.6 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.
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8.6.2.7 Alternatives for Sources Unable to Pay Penalties
Some violators cannot afford to pay the monetary penalty normally imposed for the
particular type of violation. If the authorities decide they should continue to operate, they may
agree to alternatives that do not present an undue financial burden that would force the
company to close. In such cases, they may reduce the penalty, allow for payment over time, or
look for alternatives to monetary payment such as donation of their time and effort for voluntary
improvements to environmental quality.
8.7 Citizen Enforcement
8.7.1 Citizen Suits
Some jurisdictions give private parties the right to bring enforcement actions before
agencies or the courts. There are numerous benefits to providing opportunities for citizen
enforcement. First, local citizens, directly affected by the behavior in question, are oftentimes
better situated to detect and evaluate the impact of that behavior on the environment and their
community. (See Box 8-9). Second, citizen enforcement saves the environmental management
program money. Finally, private enforcement offers political cover to the environmental
management program when the violator is a wealthy and powerful influence in the jurisdiction.
BOX 8-9: COMMUNITY ENFORCEMENT ALONG THE PHILIPPINE COAST59
The Philippines, which consists of more than 7,000 islands, is characterized by great
marine biodiversity. However, coastal resources are being severely degraded, in large part due
to over-fishing and destructive fishing practices. One important aspect of efficient fisheries
management is the enforcement of fishery regulations. Against this background, the "Bantay
Dagat" is one strategy for protecting marine resources and environments. The Bantay Dagat is
a unique participatory approach designed for coastal law enforcement, which has existed in the
Philippines since the 1970s. "Bantay Dagat" literally means "safeguarding the sea." A Bantay
Dagat consists of a group of fishing community members who are usually trained and deputized
as fish wardens and who cooperate with government law enforcement agencies in the local
enforcement of fishery laws. It is a well-recognized participatory approach at local levels, and is
generally comprised of volunteers. Successful Bantay Dagat groups contribute to a decreased
use of illegal fishing methods, such as the use of dynamite or poisonous substances in fishing,
and aim at raising the level of community awareness with regard to environmental protection
and fisheries management. This, in turn, contributes to increased daily fish catches and greater
municipal revenues from fisheries.
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Typically, it is the government's role to enforce environmental laws in court. However, in
many countries, citizens are given the right to assume or share this function through citizen suit
provisions in the law. Citizen enforcement suits generally take one of two forms. Members of
the public or environmental associations can bring an action against industrial facilities directly
for violating applicable laws or rights.
Alternatively, members of the public can bring an action against the government for
failure to perform nondiscretionary enforcement duties, with the aim of obtaining a court order
requiring the appropriate agency to enforce the law. In either case, citizen enforcement suits
are designed to protect the public interest by allowing citizens to help ensure that environmental
laws and rights are properly upheld. To achieve this purpose, different countries have
established mechanisms for authorizing citizen enforcement suits. (See Box 8-10).
BOX 8-10: CITIZEN ENFORCEMENT LAWSUITS IN EASTERN EUROPE60
Citizen groups have successfully brought lawsuits to promote environmental
enforcement in several Eastern European countries. In Ukraine, the citizen group Environment
People Law filed a lawsuit to stop the construction of a chemical fertilizer terminal. Construction
had already begun, with local government permission, before the environmental impact
assessment had been reviewed by national government authorities, as required under Ukrainian
law. The local branch of the Ministry of Environmental Protection and Nuclear Safety ordered
an expert examination, or expertiza, of the proponents' environmental impact assessment,
based on which it rejected the project. More than 10,000 local citizens had also signed a
petition opposing the project. The proponents appealed to the national-level Ministry office in
Kyiv, which conducted its own expertiza and approved the project.
Environment People Law then brought a lawsuit against the national office in the High
Arbitration Court. After initial procedural difficulties were overcome, the Court found that the
proponents' environmental impact assessment was published two months after the expertiza, in
violation of the public's rights to be informed and to participate in the expertiza process.
The Court ordered the Ministry to require the project proponents to cease work on the
project. This was a landmark victory because it was the first time that the Court had stopped a
project for failure to comply with an environmental impact assessment requirement.
For instance, some countries grant citizens access to courts for the express purpose of
environmental enforcement and institute specific provisions in their environmental statutes
authorizing citizen suits for violations of those laws. In the United States, all major federal
environmental statutes grant citizens the right to bring suit against "any person" for violation of
that statute, with "person" defined broadly to include individuals, corporations, associations, and
governments.
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In some countries, the right to enforce environmental laws in court is derived from
general provisions of the civil code. In Hungary, the civil code allows individuals to sue others
for interfering with or endangering the use of land or property by others. While this provision is
not specific to environmental law, citizens can use it to address environmental violations.61
Some countries allow citizens to go to court to enforce environmental laws in the public
interest.62 For example, in India, citizens are granted broad access to bring public interest law
suits to defend their human and social rights. Litigants need not prove a violation of law, as in
countries where access to courts is established in environmental statutes, but they must
demonstrate a violation of natural rights. Because these suits are filed in the public interest,
citizens must base their claims on damages to society—not solely to themselves. Many
countries, particularly those in Latin America, authorize citizens or citizen organizations to bring
popular actions to enforce environmental laws. In Colombia, citizen groups can bring suit
against any public or private entity causing threat of harm.
Similarly, the Brazil constitution allows any citizen to file a popular action (acao populare)
to nullify a public administrative act that is injurious to the public property or to state property of
environmental, cultural, or historical heritage. Except in cases of proven bad faith, the
complainant is exempt from judicial costs.63 To undertake this litigation, the constitution also
provides for public prosecutors (the Ministerio Publico), who are charged with undertaking public
civil actions required to protect the environment and social heritage.64
If the law does allow citizen enforcement, it needs to take precautions to minimize the
overlap with official enforcement actions. It is advisable to require citizen groups to file a notice
of intent to sue, giving the environmental management program the opportunity to bring an
action first superseding the citizen complaint. This is to avoid a situation where the same actor
risks having an enforcement action brought against them by both the government and a private
party, which would be perceived as unfair and thereby undermine the legitimacy of the entire
environmental management program.
8.7.2 Negotiations and Settlement of Citizen Suits
It is common in the United States for environmental cases, including citizen enforcement
suits, to be settled outside the courtroom through negotiations. To ensure enforceability,
settlements are often crafted as court-negotiated consent decrees, with interim deadlines for
specific actions and penalties for failure to comply. In many cases, there is a role for citizens in
this process. In addition to citizen suit settlements, citizens who are parties to, or have an
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interest in, a government enforcement suit often may participate in negotiating the terms of the
consent decrees.
In several citizen suit agreements under the U.S. Clean Water Act, the alleged violators
have avoided civil penalties by instead paying a sum of money to an environmentally beneficial
project. The U.S. government looks upon settlements involving third-party payments with some
suspicion and carefully examines consent decrees containing payments to environmental
organizations. However, courts have upheld consent decrees containing such payments. For
example, in 1995, the National Environmental Law Center negotiated a consent decree in the
course of a citizen enforcement suit involving the discharge of pollutants by an oil company into
the San Francisco Bay. In addition to obtaining the rights to future monitoring data, the Center
negotiated for the oil company's $2.2 million (US) in punitive damages to be distributed among
more than twenty local education, restoration, and research projects in the Bay's watershed.65
Another mechanism in the United States for achieving citizen-industry partnerships
during the settlement of an enforcement case is the use of Good Neighbor Agreements. Under
Good Neighbor Agreements, companies enter into negotiated contracts with workers, local
community members and associations to establish a framework for public assessment of
industrial environmental conditions. Common elements of these agreements include provisions
for public disclosure of relevant company information and stakeholder audits, wherein citizens
engage in direct, on-site evaluations of facilities to identify changes that may be needed to
ensure environmental compliance, safety, and sustainability. Good Neighbor Agreements can
also provide a forum for addressing community recommendations for improvements in
environmental protocol.
Each Good Neighbor Agreement is unique, because the parties, conditions, and issues
vary significantly among cases. However, the Rhone-Poulenc Community Audit Agreement in
Texas serves as a good example for illustrating the fundamental elements of a typical
agreement.66 The agreement arose in the 1990s after an accident at the Rhone-Poulenc plant
released poisonous sulfur dioxide gas into the community. The agreement provided for a safety
and environmental audit to be financed by Rhone-Poulenc and integrated into the company's
hazardous waste facility permit. Under the agreement, the auditor was to be approved and
accompanied by a committee comprised of community group members and facility workers.
Citizens were also given permission to conduct additional inspections by appointment. The
scope of the audit included regulatory compliance, safety training, accident prevention,
emergency response, waste analysis and information systems, monitoring programs, and waste
minimization practices. The agreement also provided for public disclosure of company
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documents including: a hazard assessment and risk analysis; lists of accidents, upsets, and
corrective actions; and waste minimization and reduction plans. In the agreement, Rhone-
Poulenc consented to "negotiate in good faith" any recommendations resulting from the audit.67
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9. BUILDING EFFECTIVE PROGRAM INFRASTRUCTURE
9.1 Introduction
The previous chapters introduced the basics of compliance assurance, including
planning, developing environmental requirements, promoting compliance, monitoring, and
enforcing requirements. As with any other organization or program, the effectiveness of the
environmental management program will also depend on its managers, employees, institutional
design, and ability to communicate with other institutions. This chapter discusses how
organizations generally build effective infrastructure and inter-organizational communication and
how they do so in the context of an environmental management program. A well-designed
program infrastructure will allow regulators to use their limited resources in a way that
maximizes compliance. In particular, this chapter will address:
• Designing compliance assurance institutions.
• Dividing responsibilities among levels of government.
• The role of civil society in compliance assurance.
• Facilitating national and international networking.
9.2 Designing Compliance Assurance Institutions
9.2.1 How to Define an Institution: Structure versus Working Methods
An effective environmental management program must have an institutional structure
that furthers the compliance goals of the program. A strong institution uses limited resources
more efficiently, and also instills greater public confidence in the integrity of the program. In
order to do this, the basic functional structures of the program and its working methods must be
clearly defined and incorporated into the strategic plan.
9.2.1.1 Functional Structures
This very popular organizational structure is constructed based on the division of labor
according to several criteria, with the idea that specialization brings greater efficiency and higher
output per person. This may produce a more focused approach, and improvements and
innovation within a program may occur because members with similar interests are interacting.
Lower turnover of personnel is a common characteristic of this structure, where management
and staff development can be centered around standard types of functional skills. Since
communication across department lines can be distorted by lack of expertise in other
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departments' fields, and even by territoriality, managers need to coordinate department
activities carefully to reach the common goals.
9.2.1.2 Product Divisional Structures
In industry, this structure means that each department is in charge of certain products.
In environmental agencies, "products" could be characterized in terms of the issues treated, the
industry sector policed, or the media, such as air or water, controlled.
This type of structure has the advantage of focusing on results, with greater orientation
towards public service and satisfaction, easily identifiable accountability for results achieved,
and more personnel in a position to develop management skills. But product structures can be
more expensive than functional structures, because at the lowest level there can be substantial
redundancy of skills among personnel. Conversion from product divisional to functional
structure can bring impressive savings in administrative costs.
9.2.1.3 Geographical Divisional Structures
Regional or local offices are the basic units of geographical divisional structures.
Environmental management programs may wish to allow their regional offices to work as
autonomous units, with independent decision-making guided by policy formed at the head
office. The head office provides services and support, but has little involvement in the daily
management of the regional offices. This structure brings the benefit of proximity to
environmental problems, their causes, and the segment of the general public most directly
benefiting from agency work. But like a product divisional structure, it entails higher
administrative costs. Also, a narrower geographic perspective can foster distortion of the larger
picture, encouraging focus on local problems at the expense of global policy.
9.2.1.4 Matrix Structures
Matrix structures are based on projects, with teams working to achieve project goals.
Often a worker has dual subordination to the department manager and the project manager.
The matrix structure promotes sharing of information and coordination of efforts, increasing
cost-efficiency and flexibility of the organization. However, the dual subordination can cause
conflicts over personnel and budgets, and the team orientation means time devoted to
meetings. Both of these features can lead to employee stress, especially at the lower levels.
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9.2.1.5 Horizontal Structures and Downsizing
This type of structure arose from dissatisfaction with the layers of middle management
resulting from organizational growth. Called "downsizing" because of the reduction in number of
employees, it is accompanied by two major interrelated changes:
• Elimination of one or more hierarchies, usually at the level of middle management.
• Delegation of decision-making to a lower level.
The goal of this structure is to reduce costs by cutting bureaucracy; however, if decisions
are shifted to a higher level rather than a lower level, the top-level management will probably
become overloaded.
Among different programs and organizations, even those serving similar mandates,
there are many different variations on the above listed structures. Factors that may influence
the choice of a given structure include:
• Scope of activity.
• Complexity of the regulatory framework.
• Size of the organization and increasing specialization.
• External political, economic, and social factors.
• Whether the strategy is preventative, curative, or both.
Questions to be answered when determining if a given structure is appropriate include:
• Which structure will lead to the greatest compliance and the most effective
enforcement?
• Is the structure compatible with policy objectives, legal mandates, and the strategy of
the environmental management program?
• Are there too few or too many hierarchical levels?
• Does the structure promote coordination among its parts?
• Does the structure allow for appropriate centralization or decentralization of
authority?
• Does the structure permit the appropriate grouping of activities?
9.2.2 Mission Statement and Scope of Enforcement
A mission statement needs to communicate to the stakeholders and the public the
essence of the organization or environmental management program. It should be no more than
a few sentences. It should include a "purpose statement" of the program's goals, a "business
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statement" outlining a plan to reach those goals, and a "values statement" of the basic beliefs
underlying the program.
A vision statement also helps to define the scope of the program's mandate. It provides
an image of success, describing the purpose of the group's work, in terms of the expected
contribution to society.
If the mandate of the program is general, e.g., "Improve environmental conditions," the
institution needs to articulate more specific goals in the strategic plan that will help it fulfill this
overall mandate. With such a mandate, there are innumerable ways to define success. If the
mandate is more specific, e.g., "Reduce water pollution by reducing tons of pollutants released
into the ecosystem," there are fewer ways to define success, and the strategic plan will be more
easily focused.
9.2.3 Institutional Identity and Degree of Independence
At the institutional level, some agencies have more independence from the legislative or
executive bodies than do others. The environmental management program's mission may be
clearly and narrowly defined by statute, in which case the institution will have little autonomy.
But in other cases, the program may be free to produce its own regulations within very general
statutory bounds, or the head of the program might be appointed by the executive, but might not
be removable by the executive. Then the degree of autonomy of the program will be much
greater. When designing the program's infrastructure, it is important to consider the degree of
autonomy that the program is expected to have.
9.2.4 Internal Communication and Decision-Making Policies
Well-designed internal communication can help employees to understand organization
objectives and adapt behavior and workplace processes to achieve these objectives.
Employees want to understand why and how decisions are made, and they learn management
strategies by observing their immediate superiors. Information should be presented to
employees in such a way that it is easily absorbed. The employees should be told why the
information is important and how to use it.
Often there are barriers to internal communication, stemming from managerial behavior
or from the organization's culture or structure. These barriers cause losses of efficiency and
effectiveness, increased costs, and decreased morale. Barriers include:
• Job insecurity.
• Poor communication between management and staff.
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• Isolation of employees from one another.
• Lack of cooperation or Team Spirit.
• Slow or cumbersome processes.
• Lengthy and unnecessary meetings.
• Transparency.
Transparency is important to maintaining public confidence in an environmental
management program's activities. Increasing transparency entails helping the regulated
community and others to understand what is expected of them and what they should expect
from the program. It also means making clear why an inspector intends to, or already has, taken
enforcement action.
Transparency on the part of inspectors is particularly important during enforcement
actions in the following situations:
• Where remedial action is required. Not only must the action be clearly explained in
writing, but also, if requested, a written explanation of why the action is necessary
and when it must be carried out should be provided. A distinction should be made
between best practice advice and legal requirements.
• Where opportunity is provided to discuss what is required to comply with the law
before formal enforcement action is taken (unless urgent action is required, for
example, to protect the environment or prevent evidence being destroyed).
• Where urgent action is required. A written explanation of the reasons should be
provided as soon as practicable after the event.
• Where rights of appeal apply. A written explanation of any rights of appeal against
formal enforcement action must be given at the time the action is taken.
9.2.5 Institutional Stability and Continuity
The development of multi-year and annual strategic plans serves to promote institutional
stability and continuity. In some countries, an environmental management program's policies
may be closely tied to the philosophy of the current government. If the government changes
frequently, it is wise to have a safeguard against a rapid reversal of regulatory policy. For
example, a notice and comment period might be required before the program or agency can
change rules. In this way, the regulated community is informed and may participate in rule-
changing. This is important because regulations that change too quickly may fail to elicit
compliance, and that failure in turn promotes a loss of confidence in the regulations, which
causes another decrease in compliance, and so on. The resulting cycle leads to a devaluation
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of regulatory instruments, government, and the rule of law. Regulations certainly can change
without creating such a vicious circle, but it is important to ensure that the regulated community
can keep pace with the changes.
9.3 Dividing Responsibilities Among Levels of Government
9.3.1 Clarifying Levels of Sub-national Authority
A basic issue in developing environmental management programs is the extent of
centralization of responsibility for compliance assurance at the national level. Decentralization
is the process of placing more enforcement responsibility at the local level. There are
advantages and disadvantages to both centralization and decentralization. A national presence
in enforcement helps ensure that minimum standards are met, that the program is consistent
and fair, and that national resources are available when necessary. Involvement of provincial
and local governments in enforcement is useful because these levels are closest to the actual
environmental problems and are sometimes better able to efficiently identify and correct them.
This is particularly true where the local problems are minor compared to problems at the
national level.
Most environmental enforcement programs around the world are decentralized to take
advantage of local knowledge of facilities and the more specialized resources available at the
local level. Despite this bias towards decentralization, some programs are centralized where
there is a clear need for national involvement, e.g., to handle transboundary pollution; where
local desire to create favorable conditions for industry may lead to lax enforcement; or where
unique or very specialized expertise is concentrated at the national level. For example,
enforcement of U.S. regulations pertaining to the manufacture of cars and fuel additives is
centralized, as are enforcement programs concerning the production of toxic chemicals and
pesticides.
Sometimes the national program and provincial, or local, programs have concurrent
roles. Sub-national programs may have the primary role for implementing the enforcement
program, but the national government retains authority to intervene if certain criteria are not met.
In other cases, the national government may not delegate any responsibility to the sub-national
level.
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BOX 9-1: CAPACITY BUILDING FOR DISTRICT BY-LAW FORMULATION AND
ENFORCEMENT IN UGANDA68
Uganda implements a policy of decentralization that entails a transfer of rights,
responsibilities, and authorities to local governments. Under the National Environmental Act,
the National Environmental Management Authority assists District Councils and lower local
councils to formulate and enforce environmental by-laws as part of the Environmental Action
Planning Process. This process seeks to identify environmental issues in need of regulation or
existing environmental by-laws that need reinforcement. The by-law formulation and
enforcement process incorporates a significant element of public participation, based on the
premise that public awareness and endorsement is the key to successful implementation.
The National Environmental Management Authority has been building the capacity of
district and community leaders to formulate and enforce environmental by-laws. This training
seeks to:
• Introduce environmental regulation as a tool for environmental management at the
community level.
• Enhance the capacity of the local leaders to formulate environmental by-laws especially
regarding decentralized environmental functions and services.
• Raise awareness of the local leaders and communities and generate a common
understanding of the procedures to be followed in environmental by-law formulation
and enforcement.
The targeted audience includes local leaders, district and sub-county councilors, district
technical staff, sub-county chiefs, resident state attorneys, and local police. These various
officials and staff play distinct, key roles in formulating and enforcing environmental by-laws,
including:
• Identifying environmental problems that need regulation.
• Drafting by-laws.
• Passing and enacting by-laws.
• Monitoring compliance with by-laws and enforcing them as necessary.
9.3.2 Qualification Procedures
Where authorized by environmental law to do so, the national agency may establish
criteria for an acceptable sub-national environmental program. These criteria generally cover
three areas: legal authority, resources, and personnel. A sub-national program meets these
criteria for its program to be approved and start running. If an appropriate sub-national program
has not been approved by the time enforcement is slated to begin, then the national level
agency can administer its own program.
9.3.3 National Support to Sub-national Units
The national agency may provide provincial and local governments with funding for staff
and equipment through an annual grant process. When the national agency sets program
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priorities annually in consultation with the sub-national units, agreements reached can specify
national, regional, and local priorities.
9.3.4 National Oversight of Sub-national Programs
It is challenging to implement this type of partnership between different levels of the
government and to use resources most effectively. Duplication of efforts is a particular hazard.
The national government may interpret its role differently from year to year. The United States
addressed these challenges in 1995, when the Environmental Protection Agency and state
leaders created a National Environmental Performance Partnership System. State participation
in this system, which is voluntary, allows for the implementation of joint state-national programs
by means of annual agreements.69
To ensure the effectiveness of such programs, the national agency might conduct
oversight of sub-national programs. To pass oversight inspection, most sub-national
environmental programs must:
• Clearly identify the regulated community and establish priorities for enforcement.
• Have clear, enforceable requirements.
• Monitor compliance accurately and reliably.
• Maintain high or graduated rates of compliance.
• Respond to violations in a timely and appropriate way.
• Use penalties and other sanctions appropriately to create deterrence.
• Maintain accurate records and provide accurate reports.
• Have sound overall program management.
Direct national level enforcement may become necessary when at least one of these
conditions apply:
• The sub-national level requests national involvement.
• The sub-national level action is not timely or appropriate.
• A case at the sub-national level would set a national legal or program precedent.
• A national agency or court order has been violated.
The national agency may also consider additional factors, such as whether:
• The case is nationally significant.
• The violation significantly threatens public health or environmental quality.
• The violator is gaining significant economic benefit.
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• The case involves more than one sub-national entity.
• The case involves a repeat violator.
If the national agency does become involved, it should do so with maximum respect for
the efforts at the sub-national level. Adequate notice and consultation should occur before
national action. In some cases, the national and sub-national level agencies may take joint
action.
9.3.5 Dispute Resolution
When national and sub-national jurisdictions overlap, it is necessary to set up a dispute
resolution method to settle conflicting views on how a situation should be handled. In some
cases, there may simply be deference to the national agency. But in other instances, this may
not make the most sense. There should be a clear procedure for examining the various aspects
of the dispute and making a decision within the terms of the law. The procedure may be internal
agency review, or review by an external body, such as a special tribunal, mediator, arbitrator, or
court.
9.4 Role of Civil Society in Compliance Assurance
9.4.1 Non-governmental Organizations and Public Interest Groups
Citizens can help to shape and implement environmental compliance and enforcement.
They may influence environmental legislation and enforcement programs through lobbying
efforts. Usually such efforts are coordinated by public interest groups, which may collect and
publicize data on environmental quality and compliance levels.
These groups many also track monitoring data collected by the enforcement agencies
that is made publicly available. They can serve as environmental watchdogs, spotting local
violations that might otherwise escape notice. In some situations, these groups may file citizen
suits against the environmental agency (if it failed to do its job), or against individual violators.
Box 9-2 provides an example of participatory management in the Philippines.
9.4.2 Industry Associations
Industry or trade associations track and publicize developments that may affect their
members. Therefore, they can be important dissemination channels for communicating
requirements, methods of compliance, and compliance activities. These associations also
usually try to influence environmental legislation and programs.
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9.4.3 Trade Unions and Workers' Councils in the Regulated Community
Workers are generally members of the local community and would therefore benefit from
localized improved environmental quality. But enforcement actions that result in substantial
process changes or shutdown of an operation may cause unemployment. Consequently,
workers often have strong opinions about some types of enforcement actions. The participation
of workers' councils is important to the success of local compliance and enforcement actions.
These organizations may become involved in the development of requirements and policies for
compliance assurance. When worker groups are vested in the environmental improvements,
individual workers may be more likely to report violations by their facilities.
BOX 9-2: PARTICIPATORY MANAGEMENT AND MONITORING OF PROTECTED
AREAS IN THE PHILIPPINES70
In the Philippines, protected areas are established and managed through the National
Integrated Protected Areas System. Participatory management for each established
protected area is central to effective implementation of the System.
Management of each protected area is supervised by a Protected Area Management
Board. The Board is composed of representatives of the various local stakeholders such as
the Department of Environment and Natural Resources (DENR) Regional Executive Director,
the Provincial Development Officer, representatives from the Municipal Government, tribal
communities, concerned NGOs, and other agencies in the area. The Board members are
formally appointed by the DENR Secretary and serve for a term of five years, without
compensation. If a protected area has a large Board membership, the Board creates an
Executive Committee that is chaired by the Regional Technical Director or Provincial Officer
of the Department and composed of at least two representatives from the local government,
concerned NGOs, and indigenous communities.
Involvement of local stakeholders in protected area management through the Board
has improved public support for the protected areas and the management decisions. Indeed,
the public has participated at the early stages of establishing many protected areas and
developing the management plans. This, in turn, has increased the compliance of local
stakeholders with the Integrated Protected Areas System.
9.4.4 Insurance Companies
In many countries, citizens can sue firms for personal injury or property damages caused
by environmental damage. Therefore, the insurance companies that end up paying firms'
lawsuit costs have an incentive to educate their clients about environmental requirements, and
to assist them in maintaining compliance. These companies are a potential ally, and enlisting
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their support for an enforcement program could make that program both more efficient and
more effective.
9.5 Facilitating International and National Networking
Networks are formed across different boundaries and for different purposes. They range
from domestic to international and from informal to more institutionalized organizations. They
are located within existing organizations, are created by agreements, or arise spontaneously
through regular contact. They can also involve somewhat surprising participants.
For instance, judges are starting to network more, whether by means of information-
sharing and mutual citation, or actively by means of forming organizations and cooperating on
transnational litigation. At the UN Conference on Sustainable Development in Johannesburg in
2002, for instance, UNEP, INECE, and others organized a Global Judges Symposium. This
symposium brought together judges from around the world to review their role and the rule of
law in the context of sustainable development.
Networks can be more flexible and thus potentially more effective, than the large formal
institutions of international governance when it comes to certain functions. By working directly
peer-to-peer, trans-governmental networks can quickly distill and disseminate information,
enhance enforcement cooperation, harmonize laws and regulations, and address common
problems from a shared perspective shaped by experience and expertise. See Box 9-3 for
examples of enforcement-related networks.
BOX 9-3: EXAMPLES OF NETWORKS
Interpol -the international police network, facilitates information exchange and provides
assistance to local police efforts. Interpol has also created an environmental crime network,
called Ecomessage, to facilitate information-sharing and enhanced coordination of enforcement
efforts.71
European Union Network for the Implementation and Enforcement of
Environmental Law (IMPEL) - an informal network of the environmental authorities of the EU
Member States, acceding and candidate countries of the EU, and Norway. IMPEL's objective is
to create the necessary impetus in the European Community to ensure more effective
application of environmental legislation, by exchanging information and experiences; providing a
framework for policymakers, environmental inspectors, and enforcement officers to exchange
ideas; and encouraging the development of enforcement structures and best practices.72
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Environmental Compliance and Enforcement Network for Accession (ECENA) -
established by high level officials from the environmental ministries of South Eastern Europe in
2005, as an informal network of environmental authorities from pre-candidate, candidate, and
acceding countries. ECENA's mission is "to protect the environment in its member countries
through effective transposition, implementation and enforcement of EU environmental legislation
by increasing the effectiveness of inspectorate bodies and promoting compliance with
environmental requirements."73
Network for Environmental Compliance and Enforcement in the Maghreb
(NECEMA) - established in 2006 as an informal network of environmental authorities in the
Maghreb region of North Africa. NECEMA's mission is to promote good governance in the
region through an exchange of innovative policies and practices.74
Capacity building is a critical function of enforcement networks. The Green Customs
network, intended to build the capacity of customs officials, has been created and is supported
by Interpol, the World Customs Organization, the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, the Basel Convention, and UNEP. The U.S.
Environmental Protection Agency offers courses to train regulators and environmental officials
in other countries because building regulatory capacity in nations with weak or poorly developed
legal systems allows cooperative enforcement efforts to occur. Their efforts stem from the
recognition that a global regulatory system based on trans-governmental networks is only as
strong as its weakest link.
Box 9-4 contains an example of successful international networking and Box 9-5
describes an example of successful national networking.
BOX 9-4: ROLE OF INECE IN ENFORCING COOPERATION ON THE TRANSPORT OF
WASTE75
In 2000, 29 containers of chemicals arrived in the harbor of Rotterdam, Netherlands
from the United States. In the Netherlands, the company receiving the containers denied
being the buyer. The company then claimed that the containers were in transit to Nigeria, but
communications between the Dutch Government and Nigeria showed that the receiving
company in Nigeria had only a post office box and had no agreement with the Nigerian
government to import these chemicals.
Some of the containers in Rotterdam harbor started leaking, and a search by the Dutch
Government revealed that more than 3,000 different chemicals were in these contaminated
containers. According to information received from the U.S. Environmental Protection Agency
(USEPA), the company had received an order from the local environmental authorities to
remove "improperly stored wastes" from its warehouse. In 2001, the Netherlands government
requested in writing that the company return the leaking waste materials voluntarily to the
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United States. The company continued to refuse, so the Netherlands government began to
incinerate the dangerous chemicals. The owner and the company were brought to court, and
found jointly and severally liable to the Dutch government, USEPA, and the Europe Container
Terminals BV, where the waste was stored in Rotterdam. The owner of the company was also
found criminally liable.
While official requests were sent to the U.S. government, it was the communications
through INECE network channels with USEPA that contributed to solving the case
expeditiously.
Similarly, IMPEL has undertaken an enforcement cooperation project to crack down on
transnational shipments of waste in the European Union. INECE has worked with IMPEL on
this project, creating training exercises to accompany the first edition of the Principles of
Environmental Enforcement, in order to build the capacities of enforcement officials attempting
to address the challenges posed by illegal waste in ports.
BOX 9-5: GAMBIA'S NETWORK OF ENFORCEMENT PERSONNEL76
The Gambia's National Environment Agency established a network of enforcement
personnel in all five geographic Divisions of The Gambia to deal with chemicals and hazardous
waste. This network seeks to respond to the limited personnel resources within the
Inspectorate of the Agency. The network comprises personnel from the Departments of
Agriculture, Livestock, Health, and Customs. A Ministerial Decree and Gazette sanctioned the
appointment of the personnel. As members of the network, the enforcement personnel act as
inspectors for monitoring chemicals. Agency inspectors cover the greater Banjul Area. The
members of the network are all charged with the same responsibilities; different members do
not cover different chemicals. The Agency, through the Agricultural Divisional Coordinators, is
responsible for the coordination of the network.
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10. MEASURING AND MANAGING PERFORMANCE THROUGH COMPLIANCE AND
ENFORCEMENT INDICATORS
10.1 Introduction
Environmental compliance and enforcement programs should be evaluated at regular
intervals to ensure that the program activities are resulting in the reduction of illegal activity and
in progress towards the agency's environmental protection goals. Evaluations can result in
greater awareness of the nature of the environmental problem and the best ways to respond to
it, which in turn can lead to revised planning and more effective implementation.
Performance indicators make known information about operations of and results
achieved. This data can help managers of environmental compliance and enforcement
programs and directors of environmental protection agencies answer questions such as:
• What activities (e.g., inspections, enforcement actions, etc.) are being produced by
the environmental compliance and enforcement program?
• What results or outcomes are being produced by the activities of the environmental
compliance and enforcement program?
• Which elements of the environmental compliance and enforcement program are
performing effectively?
• Are there any elements of the environmental compliance and enforcement program
which raise performance issues that need to be corrected?
This chapter provides an overview of how agencies can identify, design, and use
indicators. The chapter is based on the Performance Measurement Guidance for Environmental
Compliance and Enforcement Practitioners (2nd edition, 2008), developed by INECE's Expert
Working Group on Environmental Compliance and Enforcement Indicators.77
The indicators methodology presented below is organized into three stages or steps: (1)
identifying potential indicators and selecting an appropriate combination; (2) developing
indicators through designing and testing; and (3) using the indicators to improve program
performance and enhance accountability to stakeholders. (See Table 10-1). The best practices
and accompanying guidance related to each stage are based on the experiences of national
environmental enforcement and compliance programs from around the world, but may need to
be adapted or used selectively depending on the specific situation of the program under
development.
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TABLE 10-1: THREE-STAGE MODEL FOR IDENTIFYING, DESIGNING,
AND USING INDICATORS
Stage 1
Identifying
Potential Indicators
Best Practices
Determine scope
±.
Consult with
stakeholders and staff
Apply logic model
I
Develop guiding
principles
Develop common
definitions
Select criteria for
evaluatina indicators
Inventory existing data
sources
Look beyond existing
data
Select appropriate
combination of indicators
Stage 2
Designing
Indicators
Best Practices
Use internal teams to
determine how to design
Conduct pilot projects
Develoc in chases
Consult with exnerts
Monitor design and
testing
Create and distribute
development plan
Ensure timely and
accurate reporting
Stage 3
Using
Indicators
Best Practices
Monitor performance
with reaular reoorts
Analyze performance of
organizational units
Review effectiveness of
specific programs
Report to external
audiences
Analyze behind
the numbers
Assess and adapt
indicators
10.2 Stage 1. Identifying Indicators
10.2.1 Determine the Scope of the Indicators
A fundamental issue that needs to be resolved at the beginning of any effort to develop
indicators is the scope of the effort. Two questions need to be answered to determine the
scope:
1. Will the indicators be comprehensive (that is, will they cover all the legal and regulatory
frameworks and programs for which the agency is responsible) or focused (covering only
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a specific law or requirement, industry sector, geographic area or non-compliance
pattern)?
2. Will the indicators be national (that is, covering the national compliance and enforcement
program) or sub-national (covering a program at the regional/district, state, or
local/municipal level)?
10.2.2 Engage Stakeholders
Since the target audience for environmental compliance and enforcement indicators is
diverse and comprises a multitude of perspectives, consultation with all stakeholder groups is
key to success in identifying, designing, and implementing indicators. Early engagement with
the users - both internal to the organization as well as external groups - will provide invaluable
information to help define the scope of measures and priority information needs. Stakeholder
input helps to ensure that measures will be accepted as legitimate indicators of program
performance, and will have the best chance of meeting the needs of all interested parties.
Stakeholder participation may also help identify all expected uses for the measures and
highlight the need to collect new or different data than that already available. Stakeholders can
include government policymakers, regulators, sub-national authorities, international
organizations, industry, environmental groups, and the general public.
10.2.3 Apply a Logic Model
A logic model can be a useful tool for identifying performance indicators. Logic models
graphically depict the relationships between resources invested, activities undertaken, and the
results of those activities. It should clearly demonstrate a results chain from activities to
outcomes and serve as a "road map" of how the program will achieve its goals.
To use a logic model is to observe linked stages and consequences of the program:
inputs, outputs, intermediate outcomes, and final outcomes or results. For purposes of
identifying meaningful compliance and enforcement indicators, the logic model can elucidate
what outputs and outcomes need to be measured. If insufficient inputs or resources are
available to yield the desired outcomes at the scope intended, then the scope may be reduced
or outcomes modified to match available resources. Table 10-2 below presents a generic logic
model example.
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TABLE 10-2: LOGIC MODEL FOR ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT INDICATORS
Inputs
Resources of the
regulating body
• Number of staff
(e.g., inspectors).
• Budget for
salaries,
contracts, and
computers.
• Number of
vehicles for
inspection.
• Training courses.
Outputs
Activities of the
regulating body
• Number of
inspections
conducted.
• Number of
notices of
violations issued.
• Fines assessed
and collected.
• Number of
training
programs
conducted.
• Number of
persons trained.
Intermediate
Outcome
Behavior change in
the regulated
community
• Change in
pounds of
pollution
discharged.
• Change in
understanding of
how to comply.
• Change in
environmental
management
practices.
• Change in
compliance rate
in targeted
sector.
Final Outcome
Environmental
Impact
• Improved
ambient water
quality.
• Reduced
contaminant
burden in
wildlife.
• Reduction levels
of respiratory
disease in a
defined area.
10.2.4 Develop Guiding Principles
Discussions with external stakeholders and program managers and staff will often yield
ideas that are broader than suggestions about specific indicators. The discussions will also
capture general principles that can be used to guide the identification of indicators. These
principles are valuable feedback from important audiences, and should be taken into account in
the development and use of indicators. In developing its own principles, USEPA drew from
stakeholder input, consultation with experts and practitioners, and a literature review.
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TABLE 10-3: WORKSHEET FOR IDENTIFYING AND SELECTING ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT INDICATORS
A. Indicator Summary
Name
A/a me of indicator
Type
e.g., input,
output
Category/Sub-
category
Use if
appropriate to
illustrate how
indicator fits
into specific
project's
hierarchy
Currently
Measured?
Yes /No
Data
Availability
Rank on scale of
1-3, where 1 is
adequate, and 3
is inadequate
B. Indicator Description
Briefly present an objective description of what the indicator is and how the data should be
collected.
C. Reason for Selection
Discuss what the indicator might show and the basis for this assumption.
D. Limitations
Explain any limitations to measuring this indicator.
E. Data Sources
List necessary information and note whether data is currently available.
F. References
List any references that may be useful when measuring this indicator, including examples from
other countries, research documents, etc.
G. Selection Criteria *
Relevant
Transparent
Credible
Functional
Feasible
Comprehensive
* scale of 1-3, where 1 is adequate, and 3 is inadequate
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10.2.5 Select Criteria for Evaluating Potential Indicators
After external stakeholders, program managers, and staff have identified potential
indicators, those indicators will need to be evaluated to determine whether they should be
implemented. A set of criteria should be used for this evaluation. The discussions with
stakeholders can be useful for identifying such criteria. The following are some suggested
selection criteria for a project to consider:
• Relevancy: Is the indicator relevant to goals, objectives, and priorities of the agency
and to the needs of external stakeholders?
• Transparency: Does the indicator promote understanding and enlighten users about
program performance?
• Credibility: Is the indicator based on data that are complete and accurate?
• Functionality: Does the indicator encourage programs and personnel to engage in
effective and constructive behavior and activities?
• Feasibility: Does the value of the indicator to the program outweigh the cost of
implementing and maintaining the measure?
• Comprehensiveness: Does the indicator address all the important operational
aspects of program performance?
Proposed indicators should be ranked in terms of the feasibility criteria, using the
worksheet provided in Table 10-3 or other appropriate methodology. These rankings should be
used, along with comments from key stakeholders, program design guidelines, and other
information, to select indicators to carry over into the next stage of the project.
10.2.6 Develop Common Definitions for Key Terms
The importance of having a clear set of definitions at the beginning of any effort to
develop indicators cannot be overstated. Defining key terms that will be used in discussions
with stakeholders provides a framework for organizing ideas and allows agency managers and
external stakeholders to see how potential indicators might be used to improve management of
the program. Of particular importance is the distinction between output and outcome (Box 10-1).
10.2.7 Inventory Existing Data Sources
Assessment of existing data available to support indicators is a key step for identifying
environmental compliance and enforcement indicators. Are data being collected that can be the
basis for useful indicators? Are the data current, or are they the result of a study or survey that
is out-of-date or no longer conducted? Is there an existing data system that collects timely and
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accurate data? Can it be enhanced to accommodate new indicators? For example, if data are
being collected about enforcement actions issued by regional or district offices and by the
national program, then such data should provide basic output indicators that can be valuable in
monitoring operations. Collection of enforcement action data might also be expanded to begin
gathering information about results from enforcement actions (that is, pollutant reductions),
thereby providing intermediate outcome indicators.
BOX 10-1: DEFINITIONS OF KEY TERMS
Input indicators include time, staff, funding, materials, equipment and the like that contribute
to an activity. While of limited usefulness by themselves, input indicators reflect the
government's commitment and are important components for determining efficiency and
return on investment. When considered together with outcomes, inputs can be used to
determine the level of effort required to achieve an outcome. Managers can use this
information to analyze efficiency in their programs.
Output indicators are activities, events, services, and products that reach a regulated firm.
Examples include the number of inspections performed, the number of compliance assistance
workshops provided, and the number of enforcement cases issued. These indicators
demonstrate a level of effort toward an outcome, but they do not indicate the degree to which
the outcome is achieved.
Outcome indicators measure the results of an agency's outputs and are generally divided
into two categories: intermediate and final outcomes.
Intermediate outcome indicators measure progress toward a final outcome, such as
a change in behavior or other results that contribute to the end outcome. An example
of an intermediate outcome of an inspection would be a change in facility management
practices.
Final outcome indicators measure the ultimate result the program is designed to
achieve, such as an improvement in ambient air quality or a reduction in the number of
people living in areas in which pollutant standards were exceeded. When final outcome
indicators are designed with the program's goals and objectives in mind, they should
enable managers and others to determine whether the program's activities, or outputs,
are achieving those goals.
10.2.8 Look Beyond Existing Data
One potential pitfall in the identification of indicators is to consider feasible only those
indicators that can be supported by data that are currently available. Many important potential
indicators will not be identified or given due consideration if the search for indicators is
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constrained by using only existing data. If performance indicators have not been used in the
past, existing data will likely be limited to activities or outputs. Measuring outcomes, however,
will likely require setting up a process for collecting new data.
10.2.9 Select an Appropriate Combination of Indicators
In selecting indicators it is critical to strike an appropriate balance between outputs and
outcomes. A mix of output and outcome indicators will be necessary to serve the purposes of
external stakeholders and program managers and staff. Further, using output and outcome
indicators can allow patterns to be identified regarding what types of outputs produce the most
effective outcomes. As greater understanding of these patterns is gained, program strategies
can be adjusted accordingly.
In identifying and implementing environmental compliance and enforcement indicators, it
should be recognized that intermediate outcomes can be a source of very valuable indicators.
In fact, intermediate outcomes should be emphasized when developing and implementing
indicators. The advantage of intermediate outcomes is that they are often directly caused by
the activities and outputs of the program - there is no ambiguity about the causal link between
the enforcement actions and the resulting pollutant reduction, for example. Unfortunately, many
efforts to develop indicators falter when they focus only on outputs and end outcomes. This is
because it is often difficult to demonstrate the link between the government activity and
improvements in air or water quality that can be influenced by many factors beyond the scope of
government activity. Furthermore, measuring changes in end outcomes can be very expensive,
and the final results may take years to appear. For all these reasons, intermediate outcomes
should receive appropriate consideration in any effort to develop indicators.
10.3 Stage 2: Developing Indicators
10.3.1 Use Internal Teams to Determine How to Design and Test
One approach for completing the design is to develop teams within the organization to
define the selected indicators in precise detail, review available data, develop information
collection and reporting processes as needed, and establish a schedule for testing and
implementing the indicators. Since they are comprised of the organizations' own internal staff,
these work groups are often able to readily identify and overcome barriers to effective
implementation. Another benefit of involving internal staff is that it increases their sense of
ownership of the new indicators.
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10.3.2 Conduct Pilot Projects
The use of pilot projects to develop environmental compliance and enforcement
indicators is highly recommended. Pilot projects provide a period of time for indicators to be
developed and tested before being implemented fully. During this period, data can be analyzed,
indicators can be refined or adjusted, and mistakes can be corrected. Pilot projects can be
designed to test indicators on a small scale (for example, a focused sub-national project as
described above) and can then be expanded and applied on a larger scale (for example, a
comprehensive national project). Pilot projects are most helpful when there is a concerted effort
to identify the lessons learned from the project at its conclusion.
10.3.3 Develop in Phases
For environmental compliance and enforcement programs developing multiple new
indicators, it is advisable to implement in phases over a reasonable period of time. Although
this may mean that the full set of indicators is not available in the immediate future, the time
spent developing them produces more accurate information and spreads the burden over a
more manageable period of time.
10.3.4 Consult with Experts
When sufficient internal expertise does not exist, agencies should not hesitate to bring in
outside experts to fill in knowledge gaps when developing performance indicators. This can be
particularly helpful when developing complex measures, such as statistically valid compliance
rates. Experts in sampling, statistical analysis, and performance-based management of public
programs can provide useful assistance.
10.3.5 Monitor the Design and Testing
Developing a new indicator or set of indicators requires ongoing management attention
to ensure that the appropriate data is collected, that it is collected in an efficient manner, and
that the indicators provide the understanding of anticipated program performance. Monitoring
these tools can also help determine whether certain indicators need to be dropped from or
added to the implementation effort.
10.3.6 Create and Disseminate a Development Plan
It is important that a plan is developed that describes the tasks to be completed to
implement new indicators, and provides a schedule of deadlines for completion of the tasks.
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The plan should also clearly spell out the uses for the new indicators. The plan should be
disseminated to program managers and staff and to external stakeholders as appropriate.
10.3.7 Ensure Timely and Accurate Reporting
Reporting of data, especially data to support new indicators, by internal or external
parties will need to be reinforced through multiple communication mechanisms on an ongoing
basis. Steps will also need to be taken to ensure the quality of the data (e.g., random data
audits, sampling, and verification of specific data fields) through a continuous program of quality
control. One of the most effective ways of ensuring timely and accurate reporting is for senior
managers to demonstrate that they are using indicators to make decisions about program
strategy and resource allocation.
10.4 Stage 3: Using Indicators
Performance indicators can serve many purposes. Public management literature
suggests a wide variety of uses for performance indicators by public sector programs and
organizations. Among the most common uses are:
• Support strategic and other long-term planning efforts.
• Improve program effectiveness.
• Identify performance problems and solutions.
• Provide data for in-depth program evaluations.
• Communicate with public and enhance accountability.
• Help make operational and resource allocation requests.
• Formulate and justify budget requests.
• Motivate personnel to make program improvements.
For environmental compliance and enforcement programs, there are at least four ways
to use performance indicators. These practices are highly recommended, but are best viewed
as a menu from which to choose, rather than a step-by-step process.
10.4.1 Monitor Performance with Regular Reports
A monthly or quarterly report on performance indicators can be provided to program
managers and staff. These reports can provide a current account of performance in producing
key outputs and outcomes. Reports can be organized to present data for a program as a whole
or to break out data for various program components. In addition to data about performance
indicators for the current year, in order to provide a benchmark the reports should also provide
data about performance in the previously completed fiscal/calendar year.
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10.4.2 Analyze Performance of Organizational Units
Data from indicators can be organized to provide a current report of performance by a
particular organizational unit, such as a regional or provincial office of a national agency. These
reports could contain data about performance in the current fiscal/calendar year, three-year
trends on key outputs and outcomes, and comparisons with performances of other regional
offices. Such reports can lead to identification of specific program management and
performance issues that might need to be addressed by managers of the organizational unit.
10.4.3 Review Effectiveness of Specific Programs
Data from indicators can be used to review the effectiveness of particular programs
(e.g., compliance with clean water laws or requirements). Studies of the effectiveness of
specific programs can be organized around six performance-based questions that provide a
framework for analysis. The six questions are:
1. Is the program contributing to the goal of protecting human health and the environment
through its actions and strategies?
2. Is the program changing the behavior of the regulated community in ways that lead to
improved environmental performance?
3. Is the program achieving appropriate levels of compliance in key populations?
4. Are we achieving the appropriate levels of enforcement activity in the regulated
community?
5. Is the program providing appropriate assistance to our state, provincial, and local
partners to support their work to improve environmental performance?
6. Are resources being used efficiently to achieve optimal results?
Under each question, the relevant performance indicators are arrayed to address the
question as thoroughly as possible. The framework allows data about results and the activities
that produced them to be analyzed. These data can be examined for patterns and more can be
learned about the combinations, types, and amounts of activities that produce the most
desirable results.
10.4.4 Report to External Audiences
Many environmental agencies provide reports to the public in response to laws or
policies requiring such reports. For environmental compliance and enforcement programs,
performance indicators can provide valuable information to the public, legislative overseers,
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regulated industries, and environmental organizations. Such programs can be well-served by
providing an annual report to external audiences. Reports that emphasize results and
outcomes achieved through activities and outputs of the program can enhance support for the
compliance and enforcement mission. By describing accomplishments in terms that emphasize
results - for example, pounds of pollution reduced through enforcement actions, improved
practices at facilities from compliance assistance, or improved rates of compliance in an
industry sector - an account of performance is provided that is meaningful to multiple
audiences.
10.5 Common Lessons
As work on programmatic indicators evolves, common lessons that have emerged include:
• A combination of indicators - outputs and outcomes, quantitative and qualitative,
statistical and narrative, aggregated and disaggregated, national and local - is
necessary to measure performance, inform management, and serve the full range of
audiences and purposes.
• Performance indicators are most effective when they reflect management priorities
and are linked to a limited number of program goals and objectives.
• Increased use of outcome indicators presents many challenges, because agencies
or programs may influence - but not necessarily control - outcomes.
• Problem-specific, tailor-made performance indicators are effective for evaluating
performance in solving specific environmental and non-compliance problems.
• Performance measures should be used principally to improve effectiveness and
manage more strategically, rather than simply to report accomplishments to the
public in a more interesting way.
• When using indicators to improve performance, program managers and staff should
understand that data from indicators have their limitations. Such data need a context
(e.g., a time period, a benchmark, or standard for comparison, etc.) to realize their
full value as a management tool. In many instances, data from indicators provide a
kind of warning light that signals a need for deeper analysis or further investigation to
understand the forces and influences that shape program performance.
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11. REFERENCES
1 This section is based on a number of important publications and studies,
including1 Inter-American Development Bank website, "Rule of Law," available at
http://www.iadb.org/sds/SCS/site2776e.htm: U.S. ENVIRONMENTAL PROTECTION AGENCY,
Communications Strategies for Enforcement Programs, Capacity Building Support
Document, International Training Workshop, 21 (1996) (emphasizing the importance of
creating the right perception: "It is crucial to make [the regulated community] see and
believe there is a good chance to get caught if they offend the rules.");
Williams, E. et al., Exploring the Value of Scotland's Environment, QUARTERLY ECON.
COMMENTARY (Fraserof Allander Instil), vol. 28, no. 1, Mar. 2004;
Williams, E. et al., The Value of Scotland's Ecosystem Services and Natural Capital, J.
OF EUR. ENVTL. POL'Y, vol. 13, no. 2, Mar.-Apr. 2003;
BBC News, Air pollution causes early deaths, 21 Feb. 2005, at
http://news.bbc.co.Uk/2/hi/health/4283295.stm :
Massachusetts Institute of Technology News Office, Environmental regulations cut
health costs, MIT team finds, 9 Sept. 2005, at
http://web.mit.edu/newsoffice/2005/health.html;
see a/so USEPA, The Benefits and Costs of the Clean Air Act, 1970 to 1990 (1997)
available at http://www.epa.gov/oar/sect812/copy.html: Friends of the Earth Europe et
al., Reaching the right conclusions: Economic facts and figures on the REACH proposal,
Sept. 2006;
http://www.foe.co.uk/campaigns/safer chemicals/chemical reaction/REACH facts&figur
es Oct06.pdf:
see also, Pedersen, Finn, et al., Rpt. for DG Environment, The impact of REACH on the
environment and human health, ENV.C.3/SER/2004/0042r,
http://ec.europa.eu/environment/chemicals/pdf/impact on environment report.pdf;
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See J. Spigelman, Address at the ICAC-lnterpol Conference, Hong Kong; Carothers,
Thomas The Rule of Law Revival, 77 FOREIGN AFFAIRS 95, 97 (1998).
See Porter, Michael E. & van der Linde, Claas, Green and Competitive: Ending the
Stalemate, HARVARD Bus. REVIEW (1995); Porter, Michael E. & van der Linde, Claas,
Toward a New Conception of the Environment- Competitiveness Relationship, J. OF
ECON. PERSPECTIVES, Vol. 9(4), p. 97 (1995 reprinted in MAKING LAW WORK, vol. 2, at
441 (discussing how environmental regulation can encourage innovation);
Cambridge Econometrics & AEA Technology, The Benefits of Greener Business (2003),
http://www.environment-
agency.gov.uk/commondata/acrobat/benefits of green business1.pdf;
See generally, Dowell, Glenn, Hart Stuart, &Yeung, Bernard, Do Corporate Global
Environmental Standards Create or Destroy Market Value?, 46(8) MGMT. Sci. 1059
(2000), reprinted in MAKING LAW WORK, vol. 2, at 465; Network of Heads of European
Environment Protection Agencies, The Prague Statement: The Contribution of good
environmental regulation to competitiveness (2005), available at
http://inece.org/praguestatement.
2 Becker, Gary S., Crime and Punishment: An Economic Approach, 76(2) J.
POLITICAL ECON. 169 (1968), reprinted in MAKING LAWWORK, vol. 1, at 115 (explaining
that potential offenders respond to both the probability of detection and the severity of
punishment).
3 Rechtschaffen, Clifford & Markell, David L. .REINVENTING ENVIRONMENTAL
ENFORCEMENT AND THE STATE/FEDERAL RELATIONSHIP, Chps. 2 & 3 (2003), reprinted in
MAKING LAW WORK, vol. 1, at 157; Silberman, Jon B., Does Environmental Deterrence
Work? Evidence and Experience Say Yes, But We Need to Understand How and Why,
30 ENVTL. LAW REPORTER 10523 (2000), reprinted in MAKING LAWWORK, vol. 1, at 379.
4 Cohen, id. (citing Burby, R.J. & Paterson, R.G. , Improving Compliance with
State Environmental Regulations, 12(4) J. POLICY ANALYSIS & MGMT, 753-72 (1993)).
5 See, OECD, Guiding Principles for Reform of Environmental Enforcement
Authorities in Transition Economies of Eastern Europe, Caucasus and Central Asia
(2003), available at http://www.oecd.org/dataoecd/36/51/26756552.pdf.
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6 Id. at p. 3.
7 ISO, The ISO 1400 Essentials, available at
http://www.iso.org/iso/iso catalogue/management standards/iso 9000 iso 14000/iso 14000 e
ssentials.htm.
8 Chemical Industry's Responsible Care® Program web site, available at
http://www.responsiblecare.org.
9 U.S. Department of Energy's Climate Challenge Program web site, available at
http://www.climatevision.gov/climate challenge/factsheet.htm.
10 See generally IMPEL Project "Developing a checklist for assessing legislation
on practicability and enforceability" (2006) available at
http://ec.europa.eu/environment/impel/pdf/pe checklist.pdf.
11 Shimshack, Jay P. & Ward, Michael B, Regulator Reputation, Enforcements,
Environmental Compliance, J. ENVTL. ECON. & MGMT. (2005) (discussing the need to
design enforcement systems that enable the regulator to maintain credibility); see also,
Bowles, Chester, PROMISES TO KEEP: MY YEARS IN PUBLIC SERVICE, 1941-1969, 25
(1971) (estimating that 20% of the regulated population automatically complies with any
regulation, 5% attempts to evade it, and the remaining 75% complies as long as they
think that the 5% will be caught and punished).
12 De Aragao, Murillo & Bunker, Stephen, Brazil: Regional Inequalities and
Ecological Diversity in a Federal System, in Engaging Countries: Strengthening
Compliance with International Environmental Accords 437-474 (Weiss & Jacobson, eds.,
1998), reprinted in MAKING LAW WORK, Vol. 1, 337.
13 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.
14 CEC, Successful Practices of Environmental Management Systems in Small
and Medium-Size Enterprises (2005) available at
http://www.cec.org/files/PDF/ECONOMY/EMS-Report en.pdf, p 4, 27.
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15 For a database of U.S. laws and regulations currently open for public
comment, see http://www.regulations.gov.
16 China Watch, SEPA Releases New Measure on Public Participation in
Environmental Impact Assessment Process, 2006, available at
http://www.worldwatch.org/node/3886 .
17 For a list of USEPA Compliance Assistance Centers, see
http://www.epa.gov/Compliance/assistance/centers/index.html.
18 Environmental Compliance Assistance Centers Deliver Targeted Help to the
Regulated Community, Thomas, Deborah Limanon, Watcharee, Simachaya, Wijarn,
Nepomuceno, Dolora, http://www.inece.Org/conference/8/papers.html.
19 UNEP, Saving the ozone layer: UNEP responds to evolving needs of
developing countries in implementing the Montreal Protocol (2002) available at
http://www.unep.org/Ozone/Press Releases/25March 2002.pdf.
20 For USEPA's Audit Policy, see
http://www.epa.gov/oecaerth/incentives/auditing/auditpolicy.html.
21 For information about Profepa's environmental audit policy (in Spanish), see
http://www.profepa.gob.mx/PROFEPA/AuditoriaAmbiental/.
22 Krahn, Peter, Enforcement versus Voluntary Compliance: An Examination of
the Strategic Enforcement Initiatives Implemented by the Pacific and Yukon Regional
Office of Environment Canada, 1983 to 1998, reprinted in MAKING LAW WORK, Vol. 2, at
305.
23 Afsah, Shakeb, Laplante, Benoit & Wheeler, David, Regulation in the
Information Age: Indonesian Public Information Program for Environmental Management
(World Bank, New Ideas in Pollution Regulation, 1997), reprinted in MAKING LAW WORK,
Vol. 2, at 75, 78.
24 Wang, Hua, et al, Public Ratings of Industry's Environmental Performance:
China's Greenwatch Program, 6th INECE Conference Proceedings, vol. 2 (2002),
reprinted in MAKING LAW WORK, Vol. 2, at 85, 87; see a/so, World Bank, Press Release,
Polluters in China Face Public Scrutiny, 17 May 2006.
25 For an overview, see, Potter, S. and Parkhurst, G., Transport Policy and
Transport Tax Reform (2005), available at
http://oro.open.ac.Uk/4380/1/Potter and Parkhurst 17 2 05.pdf.
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26 For more information on inspections and other types of compliance monitoring,
see Zaelke, Durwood, Kaniaru, Donald and Kruzfkova, Eva, eds., MAKING LAW
WORK: ENVIRONMENTAL COMPLIANCE & SUSTAINABLE DEVELOPMENT, Vol. 2,
at 372-75 (2005) (discussing the literature on inspections as a means of ensuring
compliance and enforcement) [hereinafter MAKING LAW WORK].
27 See U.S. Environmental Protection Agency, CONDUCTING ENVIRONMENTAL
COMPLIANCE INSPECTIONS, INSPECTOR'S FIELD MANUAL, INTERNATIONAL EDITION (2002),
available at http://www.inece.org/manual [hereinafter EPA Field Manual].
28 Nguyen, Ngoc Sinh & Phung, Van Vui, A Large Scale Survey Using
Environmental Inspections to Assess and Enforce the Implementation of the Law on
Environmental Protection in Vietnam, 1997, 5th INECE Conference Proceedings, Vol. 1
(1998), reprinted in MAKING LAW WORK, Vol. 1, at 415, 421.
29 As defined by the U.S. EPA, "audit" means a "systematic, documented,
periodic, objective review by regulated entities of facility operations and practices related
to meeting environmental requirements." Environmental Auditing Policy Statement,
OPPE-FRL-3046-6, 51 Fed. Reg. 25,004, at 20,006 (July 9 1986).
30 UNEP, MANUAL ON COMPLIANCE WITH AND ENFORCEMENT OF MULTILATERAL
ENVIRONMENTAL AGREEMENTS (2006) [hereinafter UNEP MANUAL ON COMPLIANCE]; see
a/so, Gambia Hazardous Chemicals and Pesticides Control and Management Act
(1994).
31 See EUROPEAN UNION NETWORK FOR THE IMPLEMENTATION AND ENFORCEMENT
OF ENVIRONMENTAL LAW, IMPEL REFERENCE BOOK FOR ENVIRONMENTAL INSPECTION
(1999), available at http://ec.europa.eu/environment/impel/pdf/refbook.pdf.
32 The purpose of an opening conference is to inform the facility of the agency's
intentions regarding the inspection and learn more about the facility's operation and
structure, such as layout, management structure, plant processes, and safety protocols.
EPA Field Manual, supra note 27.
33 See e.g., EPA Field Manual, supra note II, at 27.
34 EPA Field Manual, supra note 27; see also, EUROPEAN UNION NETWORK FOR
THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW, IMPEL MINIMUM
CRITERIA FOR INSPECTIONS (1997), available at
http://ec.europa.eu/environment/impel/impel guidance doc.htm#min criteria.
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35 "Process-based investigations are comprehensive facility evaluations that
initially focus on a comprehensive understanding of all facility operation and
maintenance processes. The process-based investigation includes tracking raw
materials through the industrial and support operations; identifying by-product, co-
product and products; identifying wastes generated; and determining how these wastes
are ultimately managed." U.S. EPA, "National Enforcement Investigations Center," at
http://www.epa.gov/compliance/basics/neic.html.
36 "Exceptional reporting" is reporting that is only required when a violation or
potential violation has been detected.
37 Whereas "exceptional reporting" only occurs when a violation has been
detected, "fixed interval reporting" occurs at regularly scheduled times, regardless of
whether a violation has been detected.
38INECE, International Comparison of Source Self-Monitoring, Reporting, and
Recordkeeping Requirements (1996), available at
http://www.inece.org/PDFDocs/source.pdf.
39 Casey-Lefkowitz, Susan, et al., The Evolving Role of Citizens in Environmental
Enforcement, 4th INECE Conference Proceedings, Vol. 1 (1996), reprinted in MAKING
LAW WORK, Vol. 1, 559, 566-567; see also, Izaak Walton League of America website,
http://www.iwla.org .
40 DENR Administrative Order 96-37 (2 Dec. 1996), "Revising DAO 21 To Further
Strengthen the EIS System," http://www.emb.gov.ph/laws-eia.htm.
41 Ley 13.577 Creadon de la Obras Sanitaria de la Nacion, art. 31 and 32,
Decreto 674/89 Reginman contra la Contaminacion de Rios Bs. As. 29/V/89.
42 Casey-Lefkowitz et al., supra note 39, at 568-569.
43 Regional Environmental Center for Central and Eastern Europe, Status of
Public Participation Practices in Environmental Decisionmaking in Central and Eastern
Europe, Sept. 1995; Casey-Lefkowitz et al., supra note 39.
44 Act No. 183/2006 Coll., on Territorial Planning and the Building Code [The
Building Act] (an amended version of this Act came into effect on 1 January 2007); see
a/so, Casey-Lefkowitz et al., supra note 39.
45 The Commissioner for Civil Rights Protection website, available at
http://www.rpo.gov.pl/index.php?s=3.
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46 Citizen Enforcement: Tools for Effective Participation, INECE 5th Conference
Proceedings (1998), available at http://www.inece.org/CBIdg%20Docs/citenf.pdf;
Environmental Law Institute, Draft Report of Environmental Authority in: A Review of the
Legal and Institutional Framework for Environmental Protection at the State Level
(1996); Ley General de Ecologia Eguilibrada y Proteccion Ambiental, art. 189, discussed
in Katherine M. Bailey, Note: Citizen Participation in Environmental Enforcement in
Mexico and the United States: A Comparative Study, 16 GEO. INTL. ENVTL. L. REV. 323
(2004).
47 Bailey, id.
48 This list of enforcement authorities is a hybrid and does not appear in any one
law or country. Depending on the jurisdiction, each authority may be granted directly by
statute or through court order.
49 Panek-Gondek, Krystyna, Experience of the Inspectorate for Environmental
Protection in Implementation and Enforcement of Environmental Law in Poland, INECE
6th Conference Proceedings (2002), http://www.inece.org/conf/proceedings2/23-
lnspectorate.pdf.
50 UNEP MANUAL ON COMPLIANCE, supra note 30.
51 See U.S. EPA website, "Compliance and Enforcement,"
http://www.epa.gov/compliance; see a/so, "U.S. EPA to Release Guidance on Which
Criminal Enforcement Actions the Agency Will Pursue," INECE Newsletter 14,
http://www.inece.org/newsletter/14/.
52 Porter, Michael E. & van der Linde, Class , Green and Competitive: Ending the
Stalemate, HARVARD Bus. REVIEW (1995); see a/so, Porter & van der Linde, Toward a
New Conception of the Environment-Competitiveness Relationship, 9(4) J. OF ECON.
PERSPECTIVES 97 (1995), reprinted in MAKING LAW WORK, Vol. 2, at 441.
53 Oposa, Jr., Antonio A., A Socio-Cultural Approach to Environmental Law
Compliance: A Philippine Scenario, INECE 5th Conference Proceedings, vol. 1 (1998).
54 This is loosely based on a worksheet used for a U.S. environmental program.
55 Adjustments may range from -20% to +20% for factors 1, 2, and 3, and from -
100% to 0% for 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.
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56 Supplemental environmental projects are projects the facility is conducting or
will conduct to benefit the environment.
57 UNEP MANUAL ON COMPLIANCE, supra note 32.
58 Beyond compliance has been described as a "[voluntary overmeeting of
environmental standards." See Arora, Seema & Gangopadhyay, Shubhashis, Toward a
theoretical model of voluntary overcompliance, 28 J. ECON. BEHAVIOR & ORG. 289
(1995); see also Bruce Smart ecf., BEYOND COMPLIANCE: A NEW INDUSTRY VIEW OF THE
ENVIRONMENT (1992).
59 Excerpts for this text box are drawn from: Deutsche Gesellschaft fur
Technische Zusammenarbeit (GTZ), Participatory Coastal Law Enforcement Practices in
the Philippines (2003), available at http://www.gtz.de/de/dokumente/en-lesson5.pdf.
60 Kravchenko, Svitlana, Citizen Enforcement of Environmental Law in Eastern
Europe, 10 Widener L. Rev. 475 (2004), reprinted in MAKING LAW WORK, Vol. 1, 591,
592.
61 Bandi, Dr. Gyula, Environmental Enforcement in Hungary- Today and
Tomorrow, http://www.inece.org/2ndvol1/bandi.htm; see also, Global Legal Group,
INTERNATIONAL COMPARATIVE LEGAL GUIDE TO: ENVIRONMENT LAW2006, 196,
http://www.iclg.co.uk/khadmin/Publications/pdf/735.pdf.
62 For more information on public interest litigation and citizen suits, see
Thompson, Jr., Barton H., Symposium: Innovations in Environmental Policy: The
Continuing Innovation of Citizen Enforcement, 2000 U. of Illinois L. Rev. 185 (2000),
reprinted in MAKING LAW WORK, Vol. 1, at 577; for general background on the
procedures for initiating public interest litigation in India, see Helpline law website,
http://www.helplinelaw.com/docs/pub-i-litigation/index.php.
63 BRAZIL CONSTITUTION at art. 5, § LXXIII.
64 BRAZIL CONSTITUTION at art. 129.
65 Nat'l Envtl. Law Center website, "About NELC," available at
http://www.nelconline.org/nelc.asp?id2=15157.
66 Citizen Enforcement: Tools for Effective Participation, 5th INECE Conference
Proceedings (1998), http://www.inece.org/CBIdg%20Docs/citenf.pdf; for examples of
Good Neighbor Agreements, see Civic Practices Network website, "Good Neighbor
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Agreements: A Tool for Environmental and Social Justice," available at
http://www.cpn.org/topics/environment/goodneighbor.html.
67 GOOD NEIGHBOR AGREEMENTS, supra note 66.
68 UNEP MANUAL ON COMPLIANCE, supra note 30.
69 U.S. EPA website, "About Performance Partnerships," available at
http://www.epa.gov/ocirpage/nepps/about.htm .
70 UNEP MANUAL ON COMPLIANCE, supra note 30.
71 For more information, see Interpol, "Ecomessage: Briefing Document,"
available at
http://www.interpol.int/Public/EnvironmentalCrime/Pollution/Eco message.pdf.
72 European Network for the Implementation and Enforcement of Environmental
Law, About IMPEL, available at http://ec.europa.eu/environment/impel/introduction.htm .
73 Environmental Compliance and Enforcement Network for Accession (ECENA)
website, "Introduction," available at
http://www.rec.org/REC/Programs/rerep/ecena/lntroduction.html .
74 Network for Environmental Compliance and Enforcement in the Maghreb
(NECEMA) website, available at http://www.inece.org/mena/necema/index.html.
75 Gerardu, Jo J.A. & Zaelke, Durwood, The Importance of International
Environmental Enforcement Networks - INECE as an example, ELNI REVIEW, No. 2,
2005, at 3-7.
76 UNEP MANUAL ON COMPLIANCE, supra note 30.
77 INECE Secretariat, Performance Measurement Guidance for Compliance and
Enforcement Practitioners, Second Edition, April 2008, available at
http://www.inece.org/indicators/guidance.pdf.
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USEPA Document Number 300F09002
I N E C E
International Network for Environmental Compliance and Enforcement
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