PRACTICAL APPLICATIONS OF AN ENFORCEMENT MANAGEMENT SYSTEM*

DALE S. BRYSON¹

¹Acting Director, Water Division, Region 5, United States Environmental Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604 (The United States)

* The views expressed in this article are solely those of the author; they do not necessarily reflect the views or policies of the U.S. Environmental Protection Agency.

SUMMARY

Because most regulatory agencies are judged by their enforcement record, the agency needs to have an effective enforcement system. The practical applications of an enforcement management system are discussed in this paper. After evaluating a number of water enforcement programs, the United States Environmental Protection Agency developed the Enforcement Management System (EMS). The EMS is a system for translating compliance information into timely and appropriate enforcement actions. After discussing the basic enforcement process, the six basic principles to improve an existing enforcement program are explored. Special attention is given to the development and use of the Violation Review Action Criteria (VRAC) and the Enforcement Response Guide (ERG). The VRAC establishes the violation sorting process and the ERG is the guidance used in deciding what type of enforcement action should be initiated in response to specific violations. Both of these tools can be adjusted to reflect policy decisions, agency strategy and level of resources available to the agency. The phased implementation of EMS is discussed. Implementation of the EMS will result in a more disciplined and effective enforcement program that returns violators to compliance and achieves environmental improvement.

1. INTRODUCTION

Maintaining a high level of compliance with environmental laws is the most important goal of an enforcement program. The effectiveness of an environmental regulatory agency is most often judged by its ability to perform enforcement functions. Throughout the history of the United States Environmental Protection Agency (U.S. EPA), the Congress of the United States, the general public and environmental groups have judged the effectiveness of the entire Agency by the numbers of enforcement actions initiated. It has been the author’s experience that each enforcement agency must, therefore, be able to track the status of compliance with the requirement contained in a license/permit, to uncover violations where they occur and to then initiate timely and appropriate enforcement actions to require full compliance with all provisions of the applicable environmental law. In order to accomplish the above, each regulatory agency needs to develop an effective system. This paper describes such a system.

A number of years ago, a Task Force of representatives from U.S. EPA and State environmental agencies evaluated water pollution control enforcement programs in a number of environmental agencies. Those evaluations identified certain characteristics that an effective enforcement program must possess in order to be successful. From that Task Force effort, U.S. EPA developed the Enforcement Management System (EMS). The EMS was eventually implemented in the water program in U.S. EPA’s Regional Office and the State environmental programs. Most of the basic principles were also adopted by the other media enforcement programs as well.

The EMS is a system for translating compliance information into timely and appropriate enforcement actions. The EMS also establishes a system for identifying enforcement priorities and directing the flow of enforcement actions based on those priorities and available resources. Finally, the EMS is a system that can be developed and implemented in phases and can be transferred or be incorporated into other agencies or sub-elements of agencies (i.e., Regional Offices) in phases. Most importantly, full implementation of EMS will also facilitate the achievement of very positive environmental results because of the systematic efficient and effective enforcement against noncomplying facilities.

2. THE ENFORCEMENT PROCESS

Before describing the Enforcement Management System in detail, it is appropriate to discuss the basic general enforcement process. Figure 1 presents a schematic drawing of the process. The following very briefly describes the process shown. Referring to Figure 1, the enforcement process is depicted by a series of boxes and diamonds. The boxes represent information gathering activities or action steps and the diamonds represent decision points at which point information is analyzed and a decision reached.

The enforcement process begins with a “compliance review” on a facility. A “compliance review” consists of making a comparison between the requirements contained in a facility’s issued license/permit to what the facility is actually doing with respect to meeting those established requirements. For example, the license/permit may require the facility to fully characterize any chemical waste that is shipped from that facility to another facility for storage or treatment, or the license/permit may set a limit on the quantity of pollution allowed to be discharged. A compliance review would determine if a specific requirement is being met.

In order to undertake a compliance review on a facility, it is necessary to compile appropriate background information on that facility. That information can come from many sources such as the license/permit requirements, citizen complaints, and reports from other environmental programs and basic information contained in the agency file on the facility.

Once the background information is assembled and reviewed, a decision must be made as to whether the facility is “in compliance” or in “noncompliance”. If the determination is that the facility is in compliance, appropriate information is placed in the source inventory for future reference. If it is not clear whether the facility is in compliance, or it is clear that it is in noncompliance, a more detailed evaluation is needed before initiating an enforcement action.

Based upon the detailed evaluation, another decision must be made: Is an enforcement action appropriate to address the noncompliance? As shown in Figure 1, that leads to a series of decisions on actions such as determining what type of enforcement action to initiate, issuing the action and tracking the results.

3. THE ENFORCEMENT MANAGEMENT SYSTEM

In reviewing the general enforcement process described above, U.S. EPA has determined that certain basic principles emerge as being necessary for an effective compliance tracking and enforcement system. Those principles describe the Enforcement Management System (EMS). The EMS is a system for systematically translating compliance information into timely and appropriate enforcement actions. A “timely” enforcement action is an action that is initiated within a set amount of time after the violation is discovered by the regulatory agency. An “appropriate” enforcement action is an action that results in the violator coming into compliance in the shortest possible time.

There are six basic principles common to any effective EMS. An EMS should

1. Maintain a source inventory that is complete and accurate.

2. Receive and asses the flow of information available on a systematic and timely basis.

3. Perform an enforcement evaluation using systematic criteria.

4. Initiate enforcement actions and follow-up as necessary.

5. Initiate field investigations based on a systematic plan.

6. Use internal management controls to provide adequate enforcement information to all levels of the organization.

These principles are discussed in greater detail in the following text. Each principle has certain subparts, which describe the principle in greater depth and, therefore, are integral elements of the entire system.

3.1. Principle Number 1: Maintain a Source Inventory

At the foundation of the EMS is a complete and accurate compilation of all pertinent information on all facilities regulated by the environmental agency. The inventory should have appropriate basic information concerning each source, such as name, location, license/permit number, compliance dates specified, other license/permit requirements and related information. There should be a routine schedule for updating the inventory to reflect changes in the basic information, such as changes in compliance schedules, changes in the ownership/address of the facility, etc. The more frequently the information is updated, the greater the confidence in its accuracy. The inventory should be a ready reference for historical information so that it can be used to assess whether there is a pattern of noncompliance. For example, the source inventory should show whether a facility previously missed or failed to comply with a schedule requirement. The inventory should be kept in a structured system – preferably an automated system. The maintenance of the source inventory should be assigned to a specific, identified organizational entity so that responsibility for the completeness and accuracy of the source information is clear. Data on facilities in the source inventory should be accessible to all necessary parties. Finally, there should be an identifiable process for determining which facilities subject to the law have not applied for licenses/permits after being required to do so.

3.2. Principle Number 2: Flow of Information

In order to ensure that the enforcement system is current, the flow of information into the system is critical. With the growth in the number of overlapping environmental regulatory programs and due to their complexity, the need for rapid, efficient flow of information has become more important. Therefore, it should be possible to integrate information about individual regulated facilities obtained from various sources into an effective information flow. That information is then channeled into decision and control points in the system so that all information on an individual discharger is available at any point in time.

The following items are examples of the types of reports and other data that are potential sources of information for use in an enforcement system:

- Information from the source inventory.

- Data-related reports such as compliance reports, special reports, etc.

- Inspection reports from field surveys.

- Reports from other ministries, other agencies or from municipalities.

- License/permit modification requests.

- Information from other programs such as those implementing other environmental laws.

- Environmental audit reports provided by the company.

In order to effectively use the above information, procedures must be established to integrate the information from various sources about individual facilities into an effective information flow. The information should be designed so that it is readily accessible at appropriate points in the decision-making process. In other words, it must be available to a technical person at the time a compliance review is underway. Appropriate time frames for the information flow should be established and incorporated into the above procedures to insure the timely response to the information.

3.3. Principle Number 3: Enforcement Evaluation

The enforcement evaluation process is critical to the integrity of the enforcement system because it is the sifting process that efficiently sorts out non-complying sources from complying sources. This leads to later steps that place non-complying sources into various categories for subsequent enforcement action. Many of the steps in the enforcement evaluation process can be accomplished by a compliance analyst who is trained to identify noncompliance situations. This will release more highly trained technical people to do the other priority enforcement work.

The enforcement evaluation process involves a number of procedures. It should be clearly specified who is responsible for performing the enforcement evaluation on each facility that requires an evaluation. Because all facilities in the source inventory should be evaluated periodically, the frequency of that evaluation should be established. Specific guidelines for determining obvious compliance from noncompliance should be developed. For example, a compliance analyst can determine whether a required report was received or not. Procedures should be in place for describing the follow-up action that must take place once a determination of the compliance status is made. For example, in cases of obvious compliance, no further review may be necessary and the appropriate update of the source inventory can take place. The length of time for responding to obvious noncompliance should also be established, as should the appropriate enforcement response as discussed below.

Determining what is “noncompliance” is a very important process. In order to uniformly implement an environmental law across the country, there should be a standard definition that establishes the criteria for reviewing violations. The establishment of the Violation Review Action Criteria (VRAC) is one of the most important features of an effective enforcement system. In briefest summary, all violations are compared to the VRAC. Based upon that review, certain violations are determined to warrant an enforcement action. This will be discussed in greater detail later.

At any point in time, it is very important to be able to assess the entire compliance history of a facility. In that way, determinations can be made as to whether a pattern of noncompliance is emerging and whether to use an escalated enforcement action because of the persistent nature of noncompliance. This chronological history of noncompliance should be part of the source inventory or at a minimum, the facility file.

3.4. Principle Number 4: Initiate Enforcement Actions

Once the level of noncompliance is determined at a specific facility and the number and frequency of violations are established, it is necessary to determine how to respond to those violations with the appropriate enforcement response.

When the decision is made to proceed with an enforcement action to address an instance of noncompliance, several things must happen. Interaction and coordination with other programs may be necessary to prevent an untimely action by another group that would adversely affect the enforcement action. For example, action on a license/permit modification request may adversely affect the enforcement action. Therefore, procedures for effective inter-agency and intra-agency coordination must be established. Time frames for completing a determination as to whether a violation is “actionable” and the initiation of the appropriate enforcement response should be established. This fully defines what is a “timely” enforcement action. Defining the roles and responsibilities of the technical and legal staff is necessary to insure the efficient development and follow-up of the enforcement action.

Choosing the appropriate enforcement action to use in any given situation is very important. As stated earlier, the “appropriate” enforcement action is that action that will return the violator to compliance in the shortest possible time. Choosing the appropriate enforcement response is therefore very important. In some cases, the violation may be relatively minor and a simple warning letter to the violator will result in compliance. In other cases, a judicial action may be needed due to the seriousness of the violation. Guidance should be developed to assist the enforcement staff in making the decision as to which enforcement action to initiate.

The establishment of the Enforcement Response Guide (ERG) is one of the most important steps in the entire enforcement process. Use of this guide contributes significantly to the implementation of a nationally uniform enforcement system. This will be discussed in greater detail later. In briefest summary, the VRAC screening process has resulted in a list of facilities that have violated the law. The ERG establishes the specific type of enforcement response for each violation that has occurred.

At any point in this enforcement evaluation process, the decision may be made that an enforcement action is not appropriate for some reason. That reason should be documented in the file for future use. It there is a problem with the basic license/permit requirement which prevents effective enforcement, the licensing/permitting authority should be notified and the appropriate correction made in this license/permit and future licenses/permits.

Developing, issuing, and then following up on an enforcement action is the heart of any enforcement program. It should be clearly established in written procedures who has the responsibility to actually fully develop and write the formal enforcement action. The enforcement actions should have a standard form and contents so they are complete and effective. The responsibilities of the legal and technical staffs should clearly be delineated in this process. Written procedures on who has responsibility to monitor the issued enforcement action must be established. Should compliance not be achieved with an enforcement action, an escalation process to a more severe enforcement action should be developed so as to force compliance as soon as possible. Finally, once compliance is achieved, the enforcement action should be formally “closed out.” In that way, a precise determination is made as to compliance or noncompliance with the enforcement action. The facility should be notified that compliance has been achieved and that the enforcement action is over.

3.5. Principle Number 5: Initiate Field Investigations

Field investigations are an integral part of any effective enforcement system. Field investigations can be very resource intensive. For that reason, the field investigation program must be selecting candidates for field inspections should be developed. The types of field investigations utilized should be standardized to insure that adequate information is gathered that reflects the type of inspection being done. Field inspections are of no value to the enforcement program unless the information gathered by the inspection is made available as soon as possible. Therefore, time frames should be established defining when the full inspection report must be available. Because of the number of regulatory agencies that perform inspections at a facility, procedures for coordinating field investigations between agencies should be developed.

3.6. Principle Number 6: Internal Management Control

Throughout the enforcement process, it is vital that all levels of management be able to assess the effectiveness of the enforcement program and to identify progress or deficiencies. Consequently, the organizations’ enforcement procedures should provide feedback to give management the information it needs to ensure that the program makes timely decisions and meets the enforcement objectives set. In order to do that, management must receive periodic reports on the enforcement process. For example, a tracking and reporting system should be established that will tell what enforcement actions are in process at any point in time, what is the status of those actions, when they will be issued, what types of actions have been issued, i.e., administrative or judicial, number and results of field investigations, etc. A system should be established that would provide enough information to assess the quality, timeliness, appropriateness results, and accomplishments of the enforcement actions that are issued.

This paper has described the basic enforcement process. In addition, the six basic principles of an effective Enforcement Management System have been given. Figure 2 shows how the enforcement process can be defined by the Enforcement Management System principles. Principle Number 1, Source Inventory, covers the source inventory part of the enforcement process. Principle Number 2, Flow of Information, includes the various sources of information that should be compiled in order to assess compliance with the license requirements. Principle Number 3, Enforcement Evaluation and Principle Number 4, Initiate Enforcement Actions occupy the center of the enforcement process chart. Principle Number 5, Field Investigations, is shown on the right side of the figure. Finally, Principle Number 6, Internal Management Controls overlays the entire process because information from each step in the enforcement process should be summarized and sent to management in the proper format and at the appropriate times.

4. USING THE EMS TO IMPROVE AN ENFORCEMENT PROGRAM

As stated earlier, the EMS is a system for translating compliance information into timely and appropriate enforcement actions. The EMS is a process, a system for doing that. EMS is a tool to make the enforcement program for systematic, more disciplined and more accountable. EMS does not stand alone. It is a vehicle for implementing agency priorities, strategies and work plans. EMS does not establish priorities, policy or strategy. It allows for the systematic and uniform application of enforcement priorities, policy, and strategy.

All environmental enforcement agencies probably have in place as part of their ongoing enforcement system many, if not all, of the items described in this paper. When U.S. EPA has used the EMS principles to evaluate an ongoing enforcement system, U.S. EPA has learned that the individual principles and elements of those principles are often not tied together into a system.

The first suggestion on using the EMS to improve an enforcement program is to take each of the six principles and compare them to an existing enforcement program. Based upon that comparison, impediments to a systematic enforcement process will be uncovered. Those impediments can be addressed and corrected.

___________ discussion on Principle 3, Enforcement Evaluation, the establishment of a Violation Review Action Criteria was described as being ________ of the most important features of an effective enforcement program. The other critical element is the establishment of the Enforcement Response guide as an element in Principle 4. The following describes in greater detail, how they are used and how they are interrelated.

The VRAC consists of a listing of all possible violations of the environmental law being enforced. If there were enough enforcement resources in an agency, all violations could be addressed with a timely and appropriate enforcement action. However, because of resource constraints, the enforcement agency must establish some screening system to sort the violation for priority enforcement. The vehicle for doing screening is the VRAC. All violations are compared to the VRAC. This can best be illustrated by an example.

For discussion purposes, assume there are 100 facilities being regulated under an environmental law. Assume those facilities are numbered 1 to 100 (see Figure 3). During a quarterly compliance review of those 100 facilities, a comparison is made of the requirements in the license/permit to what the facility actually did during the past quarter. The screening criteria used in this process is the VRAC.

The size of the “mesh” in the VRAC “sieve” can be adjusted based upon a number of factors such as available resources, policy decision, enforcement strategy consideration and other reasons. The VRAC can be very responsive in screening the violations to reflect management decisions. It is important to note that just because a violation did not “pass through” the VRAC sieve, it is not an excused violation. The violation would be noted in the file for future use as necessary. In fact, the VRAC may have a factor in the evaluation of a violation that addresses infrequent violations.

Again, referring to Figure 3, by using the VRAC, a list of 13 facilities are found to be violating their license/permit. Those 13 are then placed into priority categories for enforcement action.

As shown above, the VRAC establishes a sorting process. It is important to understand that the VRAC can be adjusted to reflect policy, strategy and available resources. As shown in Figure 3, by adjusting the mesh size, you let more violations “through the sieve”. Therefore, a policy decision may be made that 100% of all violations of a certain type will receive an enforcement response. The VRAC is adjusted to reflect that policy decision and the mesh of the VRAC sieve lets those violations through for an enforcement action.

The EMS also can be adjusted to reflect policy and strategy in initiating specific enforcement actions. For example, as shown in Figure 3, after applying the VRAC as a screening criterion, a master list of facilities in noncompliance is developed. Two options are shown for initiating enforcement actions based on the policy that is established. One option is to initiate enforcement actions on all Class III violations first, followed by the Class II and Class I violations. Another option would be to focus all enforcement actions on an entire branch of industry first (for example, Branch A could be electroplaters). No matter what the classification of the violation is, all violations of the Branch A facilities would be addressed first, followed by Branch B, etc. Agency strategy and agency policy would establish those priorities. It must be clearly understood that the EMS does not set policy and/or strategy in a disciplined, systematic fashion. Attachment 1 presents a portion of the VRAC used in the water pollution control program in the United States.

As stated in Principle 4, Initiate Enforcement Actions, the establishment of the Enforcement Response Guide (ERG) is another of the most important steps in the entire enforcement process. The ERG is the guidance used in deciding what type of enforcement action should be initiated in response to a certain type of violation. It provides a guide to ensure a uniform application of enforcement responses to comparable levels and types of violations. When making determinations on the level of enforcement response, several items must be considered as follows: degree of exceedence from the license/permit condition or legal requirement; the duration of the violation; history of previous enforcement actions taken against the violator; and the deterrent effect of the enforcement response on the similarly situated regulated community. Equally important are considerations of fairness and equity to complying sources; national consistency of enforcement; and integrity of the overall enforcement program. It is important to note that for any given violation there may be a range of responses that can be used. For example, a violator may have failed to submit a report on time. If it is a very important report, in some instances it may be appropriate to issue an administrative action to require the report be submitted. In other cases, it may be a very important report and therefore the violation in a significant violation that requires the initiation of a judicial action. A major deciding factor in choosing which enforcement response to use in a given situation is to remember the definition of “appropriate enforcement action.” An appropriate enforcement action is one which will result in the violation being corrected in the shortest possible time, all things considered.

Figure 4 depicts how the ERG is used to sort the type of enforcement action to be initiated. Note in Figure 4 that the ERG is a tool to help the type of enforcement action to be initiated given a certain violation. Attachment 2 presents a portion of the ERG that is used in the water pollution control program in the United States.

U.S. EPA feels that if there are limited technical and legal resources available in the enforcement program, they should be devoted to the most significant sources of noncompliance. The way U.S. EPA has accomplished that focusing is to develop a violation classification system that is applied to VRAC exceedences. U.S. EPA classifies this special set of facilities as being in “significant noncompliance (SNC).” Each facility in SNC must receive a formal enforcement response within a set period of time.

The second and third suggestions on using the EMS to improve an enforcement program are to have the enforcement agency develop and implement a Violation Review Action Criteria and an Enforcement Response Guide. These two items are the foundation of an effective enforcement system. Once developed for an agency, their use results in the application of enforcement in an uniform manner across the country. A national law must have a high degree of uniformity in how it is enforced or else similarly situated facilities may not be treated equally.

The fourth suggestion on using the EMS to improve an enforcement program deals with implementing an EMS. The suggestion is to implement the EMS in phases in an organization. The implementation can be tailored to the existing organization structure and level of resources. Implementation can be adjusted to reflect planned growth in the organization. The EMS implementation can have the various Principles and their sub-elements being developed and implemented singly or in combination with each other. At any point in time, implementation of any of the six Principles or their sub-elements can be done without adversely affecting the others. For example, while the source inventory is being compiled, perfected, and automated the development and full implementation of the VRAC and ERG can proceed. Developing a systematic approach to the use of field investigations can be done at any time. The implementation of the EMS is entirely flexible. It can be tailored to reflect any existing organization as it exists now and what it is hoped to be when fully developed.

It is important to remember that there is no one “correct” EMS. What has been descried here are the minimum basic principles for an effective enforcement program. The specific details of how these basic principles are applied in a specific regulatory agency will vary widely to reflect differences in organizational structure, level of resources, degree of decentralization, and applicable laws. The EMS can be and must be tailored to each specific agency.

5. CONCLUSION

An enforcement program is effective only to the extent it is able to systematically and effectively identify instances of noncompliance and to then take timely and appropriate enforcement actions to achieve the final objective of full compliance with the law. Therefore, each agency that is administering an enforcement program should have management procedures to track the status of compliance of all facilities regulated by an environmental law, to surface violations of the law, and to take timely and appropriate enforcement actions to achieve a return to compliance. A national environmental law should have some national uniformity in its implementation. This is especially true when the environmental regulatory agency is decentralized. Full implementation of the Enforcement Management System described in this paper will foster national uniformity by the uniform application of basic elements of an effective enforcement program. The System encourages the efficient use of people. The System is geared to get summary reports of the most significant information to senior management on a set frequency for effective management decisions.

Implementation of the Enforcement Management System will result in a more disciplined enforcement program that will encourage fairness and equity in the regulated community. Most importantly, implementation of the Enforcement Management System will result in violators returning to compliance which, in turn, results in environmental improvement – the desired objective of any environmental regulatory program.

ATTACHMENT 1

VIOLATION REVIEW ACTION CRITERIA

General Information

Throughout the violation review process, it should be remembered that any violation of a permit or any other requirement placed upon a regulated facility is a violation of the environmental statute for which the owner or operator is strictly liable. In administering an agency’s decision regarding the appropriate enforcement, action should be based upon an analysis of all the facts and relevant legal provisions involved in a particular case. A decision to take no action in a given situation is within the enforcement discretion of the administering agency, so long as the reason for exercising the no-action alternative is warranted and documented. Even though the decision is made not to undertake an enforcement action against the violation, it should be noted that the violation occurred and may be subject to a future enforcement action if the noncompliance continues.

The Enforcement Management System encourages the administering agency to take an appropriate enforcement response against all violations. That may not be possible due to resource constraints. Table 1 of this attachment identifies a portion of the Violation Review Action Criteria (VRAC) that is applied by administering agencies in screening performance against effluent limitations under the Clean Water Act in the United States. This table identifies the VRAC to be applied by administering agencies in screening performance against schedule, reporting and other requirements for all permittees covered by the Clean Water Act. Identification of a violation as meeting or exceeding the VRAC does not establish the type of enforcement response which should be taken or the time frame in which it should be accomplished. Those decisions are covered elsewhere.

TABLE 1

VIOLATION REVIEW ACTION CRITERIA

VIOLATIONS OF EFFLUENT LIMITS

a. Direct Discharger Permit Violations Criteria

30 Day Average Violations*

ATTACHMENT 2

ENFORCEMENT RESPONSE GUIDE

General Information

The Enforcement Response Guide (ERG) is for the use of administering agency officials who are responsible for determining the appropriate enforcement response to a specific violation of the relevant sections of the Clean Water Act in the United State. This guide is intended to use two main purposes:

1. It recommends enforcement responses that are timely and appropriate in relation to the nature and severity of the violation and the overall degree of noncompliance;

2. It provides a guide to ensure a uniform application of enforcement response to comparable levels and types of violations, and it can be used as a mechanism to review the appropriateness of responses by an enforcement agency.

This guide should be used to select a most appropriate enforcement response to instances of noncompliance. When making determinations on the level of the enforcement response, the engineer and attorney should consider the degree of variance from the permit condition or legal requirement, the duration of the violation, previous enforcement actions taken against the violator, and the deterrent effect of the response on the similarly situated regulated community. Equally important are considerations of fairness and equity, national consistency, and the integrity of the Clean Water Act.

A key element in all enforcement responses is the timeliness with which they are initiated and how they affect compliance. Given the many types of violations and the variation in resources available to the administering agencies, no specific time frame is established in which to initiate and complete a given enforcement response. The measure of “timeliness” applies to the initiation of the enforcement action. For example, within 30 days of the identification of any violation, the appropriate enforcement response should be determined, and the enforcement action initiated. The measure of the effectiveness of an enforcement response includes

- whether the non-complying source is returned to compliance as expeditiously as possible;

- whether the enforcement response establishes the appropriate deterrent effect for the particular violator and for other potential violators; and

- whether the enforcement response promotes fairness of government treatment as between comparable violators, as well as between complying and non-complying parties.

As is noted in the attached table, there is a range of response for each type of violation. As stated above, the selection of the appropriate enforcement response requires judgment on the part of the administering agency considering the nature of the violation, the severity of the violation, and the overall degree of noncompliance. The more serious the violation the stronger the enforcement action will be.

NOTE: The following table is an extract from the Enforcement Response Guide for the Clean Water Act in the United States. The enforcement actions listed reflect those available to the United States Environmental Protection Agency.