Environmental Enforcement

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Environmental enforcement

Environmental enforcement is the set of actions that a government takes to achieve full implementation of Environmental requirements (compliance) within the regulated community and to correct or halt situations or activities that endanger the environment or public health. Experience with environmental programs has shown that enforcement is essential to compliance because many people and institutions will not comply with a law unless there are clear consequences for noncompliance. Enforcement by the government usually includes inspections to determine the compliance status of the regulated community and to detect violations; negotiations with individuals or facility managers who are out of compliance to develop mutually agreeable schedules and approaches for achievement of compliance; legal action when necessary to compel compliance and to impose some consequences for violation of the law or for posing a threat to public health and the environment; and compliance promotion, such as educational programs, technical assistance, and subsidies, to encourage voluntary compliance.

Nongovernmental groups may become involved in enforcement by detecting noncompliance, negotiating with violators, and commenting on governmental enforcement actions. They may also, if the law allows, take legal actions against a violator for noncompliance or against the government for not enforcing environmental requirements. The banking and insurance industries may be indirectly involved with enforcement by requiring assurance of compliance with environmental requirements before they issue a loan or an insurance policy to a facility. Strong social sanctions for noncompliance with environmental requirements can also be effective to ensure compliance. For example, the public may choose to boycott a product if they believe the manufacturer is harming the environment.

Environmental enforcement is based on environmental laws. An environmental law provides the vision, scope, and authority for environmental protection and restoration. Some environmental laws contain requirements while others specify a structure and criteria for establishing requirements, which are then developed separately. Requirements may be general, in which they apply to a group of facilities, or facility-specific.

Examples of environmental enforcement programs include those that govern the ambient environment, performance, technology, work practices, dissemination of information and product or use bans.

Ambient standards (media quality standard) are goals for the quality of the ambient environment (that is, air and water quality ). Ambient standards are usually written in units of concentration, and they are used to plan the levels of emissions that can be accommodated from individual sources while still meeting an area-wide goal. Ambient standards can also be used as triggers, i.e., when a standard is exceeded, monitoring or enforcement efforts are increased. Enforcement of these standards involves relating an ambient measurement to emissions or activities at a specific facility, which can be difficult.

Performance standards, widely used for regulations, permits, and monitoring requirements, limit the amount or rate of particular chemicals or discharges that a facility can release into the environment in a given period of time. These standards allow sources to choose which technologies they will use to meet the standards. Performance standards are often based on output that can be achieved by using the best available control technology . Some standards allow a source with multiple emissions to vary its emissions from each stack as long as the total sum of emissions does not exceed the permitted total. Compliance with emission standards is accomplished by sampling and monitoring, which in some cases may be difficult and/or expensive.

Technology standards require the regulated community to use a particular type of technology (i.e., "best available technology") to control and/or monitor emissions. Technology standards are effective if the equipment specified is known to perform well under the range of conditions experienced by the source. Compliance is measured by whether the equipment is installed and operating properly. However, proper operation over a long period of time is more difficult to monitor. The use of technology standards can inhibit technological innovation.

Practice standards require or prohibit work activities that may have environmental impacts (e.g., prohibition of carrying hazardous liquids in uncovered containers). Regulators can easily inspect for compliance and take action against noncomplying sources, but ongoing compliance is not easy to ensure.

Dissemination of information and product or use bans are also governed by environmental enforcement programs. Information standards require a source of potential pollution (e.g., a manufacturer or facility involved in generating, transporting, storing, treating, and disposing of hazardous wastes) to develop and submit information to the government. For example, a source generating pollution may be required to monitor, maintain records, and report on the level of pollution generated and whether or not the source exceeds performance standards. Information requirements are also used when a potential pollution source is a product such as a new chemical or pesticide . The manufacturer may be required to test and report on the potential of the product to cause harm if released into the environment. Finally, product or use bans are used to prohibit a product (i.e., ban the manufacture, sale, and/or use of a product) or they may prohibit particular uses of a product.

An effective environmental law should include the authority or power necessary for its own enforcement. An effective authority should govern implementation of environmental requirements, inspection, and monitoring of facilities, and legal sanctions for noncompliance. One type of authority that is used is guidance for the implementation of environmental laws by issuance of regulations, permits, licenses, and/or guidance policies. Regulations establish, in greater detail than is specified by law, general requirements that must be met by the regulated community. Some regulations are directly enforced while others provide criteria and procedures for developing facility-specific requirements utilizing permits and licenses to provide the basis of enforcement. Permits are used to control activities related to construction or operation of facilities that generate pollutants. Requirements in permits are based on specific criteria established in laws, regulations, and/or guidance. General permits specify what a class of facilities is required to do, while a facility-specific permit specifies requirements for a particular facility, often taking into account the conditions there. Licenses are permits to manufacture, test, sell, and/or distribute a product that may pose an environmental or public health risk if improperly used. Licenses may be general or facility-specific. Written guidance and policies, which are prepared by the regulator, are used to interpret and implement requirements to ensure consistency and fairness. Guidance may be necessary because not all applications of requirements can be anticipated, or when regulation is achieved by the use of facility-specific permits or licenses.

Authority is also required to provide for inspection and monitoring of facilities, with legal sanctions for noncompliance. Requirements may either be waived or prepared for facility-specific conditions. The authority will inspect regulated facilities and gain access to their records and equipment to determine if they are in compliance.

Authority is necessary to ensure that the regulated community monitors its own compliance, maintains records of its compliance activities and status, reports this information periodically to the enforcement program, and provides information during inspections.

An effective law should also include the authority to take legal action against noncomplying facilities, imposing a range of monetary penalties and other sanctions on facilities that violate the law, as well as criminal sanctions on those facilities or individuals who deliberately violate the law (e.g., facilities that knowingly falsify data). Also, power should be granted to correct situations that pose an immediate and substantial threat to public health and/or the environment.

The range and types of environmental enforcement response mechanisms available depend on the number and types of authorities provided to the enforcement program by environmental and related laws. Enforcement mechanisms may be designed to return violators to compliance, impose a sanction, or remove the economic benefits of noncompliance. Enforcement may require that specific actions be taken to test, monitor, or provide information. Enforcement may also correct environmental damages and modify internal company management problems.

Enforcement response mechanisms include informal responses such as phone calls, site visits and inspections, warning letters, and notices of violations, which are more formal than warning letters. They provide the facility manager with a description of the violation, what should be done to correct it, and by what date. Informal responses do not penalize but can lead to more severe responses if ignored. The more formal enforcement mechanisms are backed by law and are accompanied by procedural requirements to protect the rights of the individual. Authority to use formal enforcement mechanisms for a specific situation must be provided in the applicable environmental law. Civil administrative orders are legal, independently enforceable orders issued directly by enforcement program officials that define the violation, provide evidence of the violation, and require the recipient to correct the violation within a specified time period. If the recipient violates the order, program managers can take further legal action using additional orders or the court system to force compliance with the order.

Further legal action includes the use of field citations, which are administrative orders issued by inspectors in the field. They require the violator to correct a clear-cut violation and pay a small monetary fine. Field citations are used to handle more routine types of violations that do not pose a major threat to the environment. Legal action may also lead to civil judicial enforcement actions, which are formal lawsuits before the courts. These actions are used to require action to reduce immediate threats to public health or the environment, to enforce administrative orders that have been violated, and to make final decisions regarding orders that have been appealed. Finally, a criminal judicial response is used when a person or facility has knowingly and willfully violated the law or has committed a violation for which society has chosen to impose the most serious legal sanctions available. This response involves criminal sanction, which may include monetary penalties and imprisonment. The criminal response is the most difficult type of enforcement, requiring intensive investigation and case development, but it can also create a significant deterrence.

Environmental enforcement must include processes to balance the rights of individuals with the government's need to act quickly. A notice of violation should be issued before any action is taken so that the finding of violation can be contested, or so that the violation can be corrected before further government action. Appeals should be allowed at several stages in the enforcement process so that the finding of violation, the required remedial action, or the severity of the proposed sanction can be reviewed. There should also be dispute resolution processes for negotiations between program officials and the violator, which may include face-to-face discussions, presentations before a judge or hearing examiner, or use of third party mediators, arbitrators, or facilitators.

[Judith Sims ]