Principles Of Environmental Compliance And Enforcement .
Principles of EnvironmentalCompliance and EnforcementHandbookInternational Network forEnvironmental Compliance and EnforcementApril 2009
Principles of Environmental Complianceand Enforcement HandbookInternational Network for Environmental Compliance and EnforcementApril 2009
ABOUT THE INTERNATIONAL NETWORK FOR ENVIRONMENTAL COMPLIANCE ANDENFORCEMENT (INECE)The International Network for Environmental Compliance and Enforcement (INECE) is apartnership of more than 3,000 government and non-government enforcement and compliancepractitioners from more than 150 countries. INECE's goals are to raise awareness ofcompliance and enforcement; develop networks for enforcement cooperation; and strengthencapacity to implement and enforce environmental requirements.INECE promotes the use of regulatory and non-regulatory approaches to increasecompliance with and enforcement of environmental laws and regulations that promote thesustainable 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 INFORMATIONUSEPA’s print publications are available through the National Service Center forEnvironmental Publications (NSCEP), and USEPA’s digital publications are stored in theNational 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. Youmay contact:NSCEP Toll Free: 1-800-490-9198NSCEP Fax: 1-301-604-3408NSCEP Email: nscep@bps-lmit.comWeb Site: www.epa.govi
ACKNOWLEDGMENTSMany individuals and organizations contributed time and energy to develop the secondedition of the Principles of Environmental Compliance and Enforcement Handbook. Specialmention goes to Durwood Zaelke, Tim Whitehouse, Jo Gerardu, and Thomas Higdon of theINECE Secretariat, Davis Jones of the U.S. Environmental Protection Agency, Ken Markowitz ofthe law firm Akin Gump Strauss Hauer & Feld LLP, and Meredith Reeves of the consulting firmEarthpace. Other contributors include Angela Bularga, Tom Maslany, Mike Stahl, and membersof the INECE Executive Planning Committee. This work would also not have been possiblewithout the help of Heather Callan, Kirk Herbertson, Veronique Millon, David Newman, AdamPienciak at the INECE Secretariat.The first edition of this handbook was developed in 1992 by the USEPA in consultationwith the Netherlands’ Ministry of Housing, Spatial Planning and Environment (VROM), thePolish Ministry of Environmental Protection, Natural Resources and Forestry, and the KatowiceEcology Department in Poland.The principal author of that edition was Cheryl Wasserman of USEPA, with contributionsfrom Jo Gerardu of VROM. This new edition relies heavily on their pioneering work.UPDATES TO THIS HANDBOOKThis text can be periodically updated to include new enforcement developments andexamples from INECE participants. Readers and users are encouraged to send their ideas,examples, and comments to the Secretariat of the International Network for EnvironmentalCompliance and Enforcement at2300 Wisconsin Avenue, NW, Suite 300BWashington, D.C. 20007, USAinece@inece.orgii
TABLE OF CONTENTSABOUT THE INTERNATIONAL NETWORK FOR ENVIRONMENTAL COMPLIANCEAND ENFORCEMENT . IORDERING INFORMATION . IACKNOWLEDGMENTS . IIUPDATES TO THIS HANDBOOK . IITABLE OF CONTENTS. III1. INTRODUCTION. 12. OVERVIEW OF COMPLIANCE AND ENFORCEMENT PROGRAMS. 32.1 Introduction. 32.2 Context for Enforcement . 32.3 Benefits of Compliance and Enforcement . 52.4 Types of Compliance Activities . 72.5 Compliance Monitoring. 72.6 Enforcement . 82.7 Theories of Compliance Behavior . 82.8 Challenges in Developing an Effective Program . 93. PRINCIPLES OF EFFECTIVE COMPLIANCE AND ENFORCEMENT . 113.1 Introduction. 113.2 Environmental Results and Shared Responsibility. 113.3 Goals and Strategies. 123.4 Good Governance, Rule of Law, and Compliance . 123.5 Structure and Resources. 133.6 Continuous Evaluation and Improvement . 144. SELECTING A MANAGEMENT APPROACH . 154.1 Introduction. 154.2 Approaches to Environmental Management . 154.3 Finding the Right Mix. 174.4 Making the Mandatory Approach Enforceable . 195. DESIGNING EFFECTIVE REQUIREMENTS . 215.1 Introduction. 215.2 Basic Legal Issues . 215.3 Balancing Stringency and Feasibility. 245.4 Effective General Requirements . 245.5 Facility-Specific Requirements . 295.6 Ensuring Effectiveness. 295.7 The Permitting and Licensing Processes . 315.8 Involving Stakeholders . 325.9 Coordinating with Other Programs . 34iii
6. COMPLIANCE PROMOTION . 356.1 Introduction. 356.2 Compliance Assistance . 356.3 Compliance Incentives . 376.4 Market-Based Mechanisms. 417. MONITORING COMPLIANCE . 437.1 Introduction. 437.2 Inspections . 447.3 Audits versus Inspections. 457.4 Types of Inspections . 467.5 Steps in the Inspection Process . 477.6 Building an Effective Inspection Program. 527.7 Self-monitoring, Self-recordkeeping, and Self-reporting . 577.8 Citizen Monitoring. 607.9 Area Monitoring . 638. ENFORCEMENT . 658.1 Introduction. 658.2 The Enforcement Process. 658.3 Designing an Enforcement Response Policy . 678.4 Types of Enforcement Responses . 688.5 Choosing Between Enforcement Responses. 748.6 Negotiations and Settlements of Disputes . 828.7 Citizen Enforcement . 869. BUILDING EFFECTIVE PROGRAM INFRASTRUCTURE. 919.1 Introduction. 919.2 Designing Compliance Assurance Institutions . 919.3 Dividing Responsibilities Among Levels of Government . 969.4 Role of Civil Society in Compliance Assurance. 999.5 Facilitating International and National Networking . 10110. MEASURING AND MANAGING PERFORMANCE THROUGH COMPLIANCE ANDENFORCEMENT INDICATORS. 10410.1 Introduction. 10410.2 Stage 1. Identifying Indicators . 10510.3 Stage 2: Developing Indicators . 11110.4 Stage 3: Using Indicators . 11310.5 Common Lessons . 11511. REFERENCES. 116iv
1.INTRODUCTIONThis handbook outlines some of the important considerations in designing, implementingand evaluating effective environmental enforcement and compliance programs. It serves asbackground reading for the training course on the Principles of Environmental Enforcement andCompliance. In 1992, the USEPA created this course in response to a request by Poland’sMinistry of Environmental Protection, Natural Resources and Forestry.The Netherlands’Ministry of Housing, Spatial Planning and Environment contributed significantly to thedevelopment of this course. Since its first delivery in 1992, the Principles course has been givenhundreds of times in countries throughout the world.Successful implementation of environmental requirements requires significant effort andforethought. Changes in behavior are difficult to accomplish on both a societal and personallevel. No one formula exists for achieving compliance. There is merely trial, evaluation, andadaptation to find the most effective compliance strategies for any given situation.Nevertheless, a reliable framework for designing compliance assurance programs has emergedbased on the experiences of countries around the world. The information in this handbookderives from these experiences.Chapter 2 provides a basic overview of the concepts behind successful enforcement andcompliance programs. This overview briefly examines: (1) the specific types of compliance andenforcement programs; (2) how compliance and enforcement programs fit into the elements ofan environmental management cycle; (3) the benefits that derive from an effective complianceand enforcement program; (4) the theories of compliance behavior and why it is important tounderstand these theories when developing a compliance strategy; and (5) some of the generaldifficulties and obstacles that may exist to the development of an effective program.Chapter 3 describes twelve principles of effective environmental compliance andenforcement programs. These principles are divided into five sections: (1) a commitment to theenvironment; (2) vision, goals and strategies; (3) governance and the rule of law; (4) structure,responsibility and resources; and, (5) continuous evaluation and improvement. While thestrength of any one principle may vary based on cultural, economic, political and social needs ofa particular country or region, together they help form the foundation of a successfulenvironmental compliance and enforcement programs.Chapters 4 through 10 build on issues discussed in Chapter 2 and 3. Chapter 4discusses three different overlapping management approaches -- voluntary, market-based andmandatory -- that make up the framework underlying most environmental programs. Chapter 51
looks at some of the issues to consider when designing effective requirements. Chapter 6provides an overview of what makes up typical compliance assistance and compliance incentiveprograms. The importance of compliance monitoring is discussed in Chapter 7, while Chapter 8examines the basic elements of enforcement programs and types of enforcement responses.Chapter 9 discusses how organizations build effective infrastructure and inter-organizationalcommunication, and how to do so in the context of an environmental management program.Chapter 10 examines ways to develop, measure, use and interpret environmental complianceand enforcement indicators.2
2.OVERVIEW OF COMPLIANCE AND ENFORCEMENT PROGRAMS2.1IntroductionOver the past forty years, environmental law has been central to government efforts toimplement a wide range of environmental programs designed to protect air, water, naturalresources, wildlife and public health. Countries throughout the world use environmental law tohelp address problems such as the discharge of pollutants into the environment, the protectionof flora and fauna, the handling, storage and disposal of solid and hazardous wastes, theapplication of pesticides, preventing air contamination, and protecting the quality and availabilityof clean water.However, simply having environmental laws in place is not enough to address theseproblems. Governments must find ways to ensure that the regulated community meets therequirements put forth in the environmental laws and their implementing regulations. Successfulstrategies will both encourage and compel behavioral changes within the regulated communitythat are needed to achieve compliance.This chapter provides a basic overview of the concepts behind successful enforcementand compliance programs. The first section looks at the context for compliance andenforcement as a part of the environmental management cycle. The second section examinesthe benefits of an effective compliance and enforcement program. The third section discussestypes 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 thedevelopment of an effective program.2.2Context for EnforcementEnvironmental compliance and enforcement programs occur as part of a comprehensiveenvironmental management cycle.This cycle typically involves community recognition ofcertain environmental problems and governmental acceptance of the need to address theseproblems. From there it often leads to government establishing specific environmental goals toaddress these problems and selecting a management approach or approaches to reach thosegoals. When developing mandatory requirements, government must consider the legal basis forthese requirements and establish compliance and enforcement programs to ensure that theregulated community adheres to these requirements. Once implementation begins, evaluationsand adjustments must be made to continually update and improve the programs.3
Figure 2-1 presents the environmental management cycle. This process is explained inmore detail below the figure.FIGURE 2-1: THE ENVIRONMENTAL MANAGEMENT CYCLE2.2.1Awareness and Strategic PlanningThe environmental management cycle starts with awareness that there is anenvironmental problem and adequate support to address the problem.Once there isawareness and support for action, program proponents must begin strategic planning and goalsetting. These goals may include reducing environmental risk, preventing pollution, or cleaningup past contamination.2.2.2Selecting a Management ApproachOnce program goals are set, the focus moves to selecting the most suitablemanagement approach or combination of approaches, in order to achieve program goals. Forpurposes of this book, these approaches are categorized as voluntary, market-based, andmandatory. These approaches are discussed in more detail in Chapter 4.4
2.2.3Developing Effective RequirementsThe selected management approach may require specific laws or regulations. Laws andregulations, in turn, include “requirements” that clearly define specific practices and proceduresto directly or indirectly reduce or prevent pollution. Effective requirements demand that specificthings be done or outcomes reached.Chapter 5 discusses the creation of effectiveenvironmental requirements to implement the selected management approach.2.2.4Evaluation and AdjustmentOnce implementation begins, another important phase needs to be initiated—evaluationof the impact of the program through the use of compliance and enforcement indicators. Thispart of the environmental management cycle is often overlooked or not given the attention that itwarrants. Evaluation leads to greater awareness of how the program is addressing the targetedenvironmental problem, which in turn, through feedback, leads to better planning andimplementation.The evaluation process, including the development of compliance andenforcement indicators, will be discussed in Chapter 10.2.3Benefits of Compliance and EnforcementA compliance and enforcement program that is effective and part of a largerenvironmental management effort will bring a broad range of benefits to society.A well-designed environmental compliance and enforcement program will create both public andprivate value.Compliance creates “public value” when it promotes the rule of law and goodgovernance; ensures fairness and strengthens the credibility of environmental requirements;protects the goods and services provided to a society by a well-functioning ecosystem; andprotects public health.Compliance creates “private value” when it increases investorconfidence by reducing business risks; stimulates innovation and increased competitiveness;and creates new jobs and markets.1 (See Box 2-1).5
BOX 2-1: CREATING VALUE THROUGH COMPLIANCECompliance Creates “Public Value”Promotes the Rule of Law and Go
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 Environme
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