DEVELOPING ENFORCEABLE ENVIRONMENTAL REGULATIONS

AND PERMITS

 

FULTON, S.F.1 and GILBERG, E.J.2

 

1Environmental Protection Agency, 401 M St., S.W., Washington, D.C. 20460

(United States of America).

 

2Environmental Protection Agency, 401 M St., S.W., Washington, D.C. 20460

(United States of America).

 

            SUMMARY

 

            This paper discusses the need to design environmental regulations and permits to be enforceable, and the factors that regulators need to consider to do so.  The paper assumes that the government agency responsible for environmental protection has sufficient legal authority to develop and to enforce regulations and permits.  This discussion relies heavily on the experience of the United States Environmental Protection Agency in enforcing its own regulations and permits.

            This paper identifies several elements that are essential for enforceable regulations and permits.  We discuss why each type of provision is important and give examples of enforcement problems that have arisen when a regulation or permit did not incorporate these elements.  We also discuss the steps EPA has taken or is now taking to assure more enforceable regulations and permits in the future. 

 

1          INTRODUCTION

 

            An effective environmental enforcement program must ensure that the goals of environmental protection are actually achieved.  To do so, an enforcement program should be strong, efficient, creative, and fair.

            First, enforcement programs should be strong enough to have an impact on the regulated community, to change behavior so that environmental compliance becomes standard practice among industry.  To accomplish this objective, the program must reach enough violators to pose a credible threat of enforcement against all violators, it must assess sufficient penalties to deter future violations, and it must effectively communicate its results to the regulated community.

            Second, enforcement programs must be efficient to establish a presence within the regulated community despite limited resources.  Enforcement must use all its available tools -- administrative, civil judicial, and criminal remedies.  Where feasible and appropriate, multi-media approaches can address environmental problems comprehensively, potentially delivering greater environmental benefit than would likely be achieved otherwise.  Similarly, risk-based targeting enables an enforcement program to devote its resources to addressing emissions or discharges that pose the greatest threat to public health and the environment.

            Third, enforcement should be creative, by striving where appropriate for environmental results that go beyond compliance.  For example, the government can seek through enforcement to induce a violator to conduct a pollution prevention or pollution reduction project, in addition to coming into compliance.

            Finally, enforcement should be fair.  If the government treats similar violators in a similar way, industry will have greater confidence in the government and is likely to abide by the consequences of enforcement more readily.

            To enable the enforcement program to meet these objectives, environmental regulation must either apply environmental requirements to a specific facility through clearly written permits or ensure that generally applicable rules are clear and enforceable.  Imprecise rules and permit terms hamper good faith efforts to comply and reduce a facility's accountability for compliance with environmental requirements.

            Environmental agencies can increase compliance by developing regulations and permits that are enforceable.  A system which combines enforceable regulations with the promise that the government will respond firmly to violations ultimately encourages a high level of voluntary compliance.  When industry is motivated to control its own operations in order to achieve environmental standards, the need for public expenditure on inspectors and bureaucrats can be reduced.  Thus, enforceable standards contribute to efficiency as well as to achievement of environmental goals.

            Enforceable standards also focus policy choices.  A regulation that contains specific language will gain more serious attention than a regulation written in general terms.  Industries and other affected interest groups will be more concerned about new standards when they know that the regulation or permit can and will be enforced.

            Enforceable standards are fair to industry by clearly communicating what is required.  Clear standards will enable industry to comply, will reduce the chance for arbitrary treatment by government, and will reduce the likelihood of litigation to enforce the requirements. 

            To write enforceable regulations and permits, an environmental agency should integrate enforceability considerations into its decisionmaking process.  Consider, for example, the regulatory agenda of the United States Environmental Protection Agency in implementing the Clean Air Act Amendments of 1990.  The Agency is scheduled to develop approximately 100 regulations during the first few years of implementing the new law.  In addition, the States will be issuing operating permits to an estimated 34,000 major air pollution sources in the next several years, each of which is subject to review by EPA.  The vast scope of this agenda makes it essential that EPA consider enforceability issues throughout the regulatory process and set priorities for effective involvement by enforcement personnel.

            A regulatory agency might fail in its basic function if it writes regulations or permits that are unenforceable.  As a result, the environmental goals established by the agency might not be achieved.  

 

2          GENERAL PRINCIPLES OF ENFORCEABILITY

 

            There are several criteria for drafting an enforceable regulation or permit.  It must:

 

            Ë          Be understandable

            Ë          Precisely define the sources subject to its requirements

            Ë          Clearly establish a standard of conduct

            Ë          Clearly address how compliance is to be measured

            Ë          Include clear deadlines for compliance

            Ë          Include self-monitoring and reporting requirements

            Ë          Be adopted in accordance with correct procedures

 

            Policymakers need to consider the feasibility of compliance in establishing the stringency of requirements.  Requirements that are unachievable obviously will result in noncompliance, and the greater environmental benefits desired will not be attained.  The most effective strategy for regulators is to consider regulatory options which are achievable.  By emphasizing practicability and enforceability throughout the regulation development process, policymakers will increase the likelihood of an effective regulation.

3          ELEMENTS OF ENFORCEABLE REGULATIONS AND PERMITS

 

3.1       Understandable

 

            The central feature of an enforceable regulation is that it be clear and understandable.  Excessively complex regulations can lead to uncertainty among government and industry regarding the requirements of the regulation.  Such uncertainty hampers both industry's efforts to comply and the government's efforts to enforce.

            Consider the example of the definition of "solid waste" under the Resource Conservation and Recovery Act (RCRA).  RCRA is the law that governs the management of hazardous waste in the United States.  Hazardous waste is defined to be certain types of solid waste. 

            The definition of solid waste is so complex that it takes three pages plus a flow chart in the United States Code of Federal Regulations.  The United States Environmental Protection Agency (EPA) receives approximately 1000 calls per month on its telephone hotline, most of which involve questions concerning the definition of solid waste.  EPA's own study of the RCRA program found that the definition was hard to understand for EPA, States, and industry.  EPA further found that permitting and enforcement were hampered by the complexity of the regulations.

            The consequences of unclear regulations are illustrated by a recent United States federal court decision that a company cannot be penalized for violating ambiguous, confusing environmental regulations.  Rollins Environmental Services (NJ), Inc. v. EPA, 937 F.2d 649 (D.C. Cir. 1991).  In this case, a company had been fined $25,000 by EPA for violating regulations governing how to decontaminate polychlorinated biphenyl (PCB) containers.  The court set aside the penalty on the grounds of "regulatory confusion."  While EPA is currently rewriting this rule to address the concerns, this example clearly demonstrates the need for regulators to write clear, understandable regulations.  

 

3.2       Precisely define the sources subject to its requirements

 

            An enforceable regulation must precisely define the sources subject to its requirements.  The critical first step in determining compliance with environmental requirements is deciding who is covered.  The regulation must clearly define the regulated industry, regulated activities, and regulated substances.  Similarly, a permit must precisely state which facilities and processes are covered.

            RCRA regulations illustrate this concern.  RCRA regulations require that any person who imports a hazardous waste must comply with certain provisions of RCRA.  In particular, the regulations state that the importer must originate a manifest, the key feature of RCRA's "cradle to grave" system of tracking hazardous waste.  The regulations do not on their face, however, clearly define "importer."  It is less than clear whether the importer is the person who transports the waste across the border, the person who acts as broker, or the person who receives the waste.  The absence of a clear definition makes it difficult for EPA to decide who to enforce against for violations of these requirements.

            A similar problem is illustrated by regulations under the Asbestos Hazard Emergency Response Act (AHERA).  AHERA regulations require that an asbestos management plan be developed for schools.  The regulations do not clearly indicate who is responsible for assuring that the plan include the required elements.  While EPA has taken the position that both the school and the asbestos management planner are jointly responsible for each element in the plan, the lack of clarity in the regulation creates some uncertainty regarding who EPA can enforce against for violations of these requirements.

            As another example, EPA took enforcement action against a company for violating State regulations governing emissions from paper coaters.  The company argued in its defense that it was a paper "impregnator," that is, it saturated, rather than coated the surface of paper with chemicals.  Even though the rulemaking record showed that the State had intended to regulate this source, a State court agreed with the company's interpretation of the regulation.  A federal court then dismissed EPA's enforcement action on the basis of the State court decision.  United States v. Riverside Laboratories, 678 F. Supp. 1352 (N.D. Ill. 1988).  In this case, the regulation, in the court's view, failed to precisely identify the regulated activity.

 

DEFINITIONS

 

            Ë          Does the regulation clearly define who is subject to its requirements?  A regulation can specify the type of plant, industrial activity, or regulated pollutant.

 

            Ë          Does the regulation apply only to sources of a certain size?  If so, does the regulation state how the size of a source is to be determined?  For example, a regulation may apply to plants that produce a certain amount of a particular substance per year.

 

            Ë          Are there any exceptions to applicability of the regulation?  If so, exceptions should be defined as narrowly as possible.

 

            Ë          Are defined terms used consistently?  Once defined, a term should be used only when that meaning is intended.

 

            Ë          Are the definitions and exceptions precise?  Definitions should be sufficiently precise for enforcement personnel to identify violations.

 

            Ë          Does regulation clearly identify the legal authority for the regulation?

 

 

3.3       Clear Standard of Conduct

 

            A regulation or permit must clearly articulate the standard of conduct expected of a regulated source.  If the regulation sets forth an emissions or discharge standard, it should establish a numerical standard which can be measured.  Policymakers should consider alternate ways to express a standard of conduct and pick the one which is easiest to measure.

            Exceptions or exemptions to a standard should be clearly stated.  For example, regulators may decide as a matter of policy that periods of startup, shutdown, or malfunction should be given special treatment.  In such case, the regulation should clearly state how such circumstances are to be determined, and what, if any, requirements apply in those circumstances.  Moreover, the exemption should be stated in a manner that ensures that a person claiming entitlement to an exemption has the burden of proving that entitlement in the event of a dispute, rather than the regulator having to prove that the exemption does not apply.

            Examples of EPA regulations that do not establish clear standards of conduct are abundant.  For example, EPA's AHERA regulations require schools to hire asbestos inspectors to identify the locations of all "suspected" asbestos-containing building material (ACBM).  The regulations do not define the term "suspected," nor does it contain a list of suspected materials.  As a result, in circumstances where an inspector does not actually identify a certain material, it is very difficult for EPA to prove that the material should have been considered "suspected" ACBM.

            The environmental agency may not be able to establish emissions or discharge standards in some instances.  In such circumstances, the agency may adopt "work practice" standards, that is, regulations which describe activity which a company must conduct to comply.  Work practice standards are, by their nature, difficult to enforce and should be avoided whenever possible.

            EPA's Clean Air Act asbestos regulations are a classic example of the difficulties posed by work practice standards.  EPA's asbestos National Emission Standards for Hazardous Air Pollutants (NESHAP) apply to persons that demolish or renovate buildings containing asbestos.  The regulations require that such persons "adequately wet" asbestos that is removed.  This standard is clearly subjective -performance cannot be measured with any precision.  As a practical result, enforcing against companies that wet asbestos "inadequately" is extremely difficult, and EPA usually enforces only against companies that do not wet the asbestos at all.

            EPA's permit program under the Clean Water Act shows the value of clear, measurable standards of conduct.  Under the National Pollutant Discharge Elimination System (NPDES) program, a permit holder may discharge pollutants into navigable waters of the United States.  NPDES permits contain specific effluent limitations, which restrict the quantities, rates, and concentrations of pollutants in discharged wastewater.  Having such specific requirements in permits has greatly simplified enforcement by EPA and by citizen groups and led to high compliance rates in this program.

 

STANDARDS OF CONDUCT OR PERFORMANCE

 

            Ë          Does the regulation or permit require conduct or performance that is measurable?  Methods must exist to be able to measure whether a source is complying with the performance standard set forth in the regulation or permit.

 

            Ë          Are more enforceable requirements available?  In particular, regulators should choose, where possible, to set forth an emissions or discharge standard rather than a work practice standard.  Emissions or discharges can be quantified and compared against a standard of performance.

 

            Ë          Are exceptions clearly described?  Does the regulation or permit address circumstances during which excess emissions are excused, for example, during startup, shutdown, or malfunction?  Does the company bear the burden of proving that it is entitled to the exemption?

 

3.4       Clearly state how compliance is to be determined

 

            In developing a standard of conduct, the agency must consider how it will determine whether the source meets the standard.  Environmental goals will not be advanced if the agency develops a standard of performance that cannot be monitored.              The regulation or permit should state clearly how compliance is to be determined.  Compliance with an emissions standard may be required at certain intervals, 100% of the time, or it can be determined by averaging emissions over a specified time period.  Where an averaging period is chosen, the regulation must be clear on the timeframe to be used in averaging.  For example, a monthly average can be determined by calendar months, or by "rolling" months, that is, each day an average of the previous 30 days must be used to determine compliance. 

            In the case of emissions or discharge standards, the regulation or permit should state how compliance is to be demonstrated by the company.  Compliance may be demonstrated by various methods, such as an initial performance test, periodic monitoring, or continuous monitoring performed by mechanical monitors.  Specifying a test method increases the chance that the company and the government agency will make the same determination of the amount of emissions.  The regulation or permit should also make clear whether monitoring data can be used to determine compliance.

            EPA's pretreatment program under the Clean Water Act shows the problem that can be presented when a regulation does not specify how compliance is to be determined.  Pretreatment is the treatment of indus­trial wastewater at an industrial facility, before its wastewater is discharged into a local sewer system.  The pretreatment program is designed to protect Publicly Owned (wastewater) Treatment Works (POTWs) and the environment from the harm that may occur when toxic, hazardous or concentrated conventional pollutants are discharged into sewer systems.  This protection is achieved by regulating the nondomestic users of POTWs, commonly called industrial users (IUs).

            The governmental entity responsible for implementing pretreatment controls on IUs is usually the local municipal­ity through its POTW.  Enforcement problems have arisen because many of the local and federal requirements were written in general terms, with very few specific terms.  As a result, EPA has had difficultly determining whether POTWs were fully and timely implementing their pretreatment programs.

            In response to the problem, EPA revised the pretreatment regulations to establish certain minimum actions POTWs would be required to perform in developing and implementing their pretreatment programs.  For example, the revised regulations require POTWs to issue local permits to all of their significant industrial users (SIUs).  Each permit will specify all of the pretreatment standards and requirements with which a particular SIU must comply.  The regulation also specifies the minimum conditions which such permits must contain.  By providing more specificity in the regulations through minimum requirements, POTWs would better understand what the minimum federal requirements were for implementing a pretreatment program.  These regulatory revisions are expected to improve EPA's ability to monitor a POTW's compliance with its pretreatment program implementation requirements and make EPA enforcement easier where appropriate. 

            In some instances, environmental misconduct may give rise to multiple violations.  In such circumstances, it is sometimes helpful to define the relationship between such violations and a facility's exposure to penalties.  EPA's regulations implementing the Montreal Protocol on Substances that Deplete the Ozone Layer include an effective approach to this issue.  These regulations impose a limit on the amount of ozone-depleting substances that can be produced or imported annually (in a 12-month period).  EPA has legal authority to take enforcement action to seek civil penalties of $25,000 per day per violation.  If one considers an annual total that violates the limit to be 365 days of violation, the company would be exposed to penalty liability of over $9,000,000, which might be unreasonable for a minor exceedance.  On the other hand, considering an annual total as one violation creates a maximum penalty of $25,000, which may not be enough to deter future violations.  EPA resolved this problem by declaring, in the regulation, that each kilogram above the limit would be considered a separate violation.  In so doing, EPA devised an approach that directly relates the penalty to the amount of ozone-depleting substances illegally produced or imported.

 

DETERMINING AND DEMONSTRATING COMPLIANCE

 

            Ë          Does the regulation or permit specify how compliance is to be determined?  For example, is compliance determined by measuring emissions at specified intervals?  Are emissions averaged over a specified period of time?

 

            Ë          How does the company demonstrate compliance?  Is it demonstrated by performance testing, periodic monitoring, or continuous monitoring? 

 

            Ë          How does the government determine compliance?  Does the government rely on field inspections, review of monitoring records, or review of periodic reports?

 

            Ë          Does the regulation or permit specify a test method for performance tests?

 

            Ë          Does the regulation or permit specify what data may be used as evidence of violations?

 

            Ë          If applicable, does the regulation or permit specify how many violations are created by certain conduct?  This is particularly important where the regulation includes an averaging time for determining compliance.

3.5       Clear Deadlines for Compliance

 

            An enforceable environmental regulation or permit should state clearly the time when compliance must be achieved.  In some instances, it may be useful to include interim dates by which the company must take intermediate steps to achieve compliance by the deadline.  For example, if a permit requires compliance in two years, it could also include deadlines for completing engineering, entering into contracts, beginning installation of control equipment, and completing installation of controls.  Such interim deadlines allow the government to enforce against a company which is behind schedule before the final deadline for compliance.

            The NPDES program under the United States Clean Water Act is again a useful model.  The permits specify dates for compliance with effluent limitations, including interim requirements, and contain compliance schedules when the date for compliance is more than one year from the date the permit is issued.

            It is important that the compliance deadline be certain and not dependent upon other events.  EPA New Source Performance Standards (NSPS) under the Clean Air Act illustrate what can go wrong.  Many of these standards require the source to comply with emission limits "on and after the date on which the performance test ... is completed."   A performance test measures emissions to determine that pollution controls are working properly.  The regulations required such a test to be completed within 180 days of starting operation of a new source.  A United States federal court decided that, if a source did not conduct a performance test, there was no requirement to comply with the emission limit.  EPA has corrected this problem in recent NSPS by requiring that sources comply with emission limits after the date the performance test is conducted, but no later than 180 days after starting operation.  By specifying a certain date, EPA eliminated the possibility that a company could avoid complying with the emission limit by failing to conduct the performance test.

 

COMPLIANCE DEADLINES

 

            Ë          Does the regulation or permit specify the time by which compliance is required?

 

            Ë          Are interim deadlines included?  This is useful where the compliance schedule is longer than one year.

 

            Ë          Is compliance required by a specified date?  Compliance deadlines should usually not be entirely dependent on another event under the control of the facility, such as completing the performance test.

 

            Ë          If compliance is required upon the occurrence of an event, does the regulation or permit specify the event clearly so that an inspector can determine whether the event has occurred?

 

3.6       Self-monitoring, Recordkeeping and Reporting Requirements

 

            To avoid large government expenditures in inspections and monitoring, environmental regulations can shift responsibility to industry for monitoring compliance.  Placing the responsibility on industry will increase the rate of voluntary compliance. 

            To assure that a source maintains compliance with environmental requirements, the regulation or permit must require continuous or periodic monitoring.  Merely requiring a compliance test once a year will not assure compliance.  Most companies can successfully pass an annual test even if their control equipment is not properly maintained the rest of the year.  Thus, a yearly compliance test may reveal little about the compliance status of a source under ordinary operating conditions.

            The regulation or permit should be specific regarding what the source monitors.  The monitoring should yield data that relates to the performance requirements of the regulation.  A source can monitor emissions directly, or, in some instances, a source may monitor other operating parameters which measure the level of pollution control.  If, for example, an incinerator is used to control emissions, monitoring incinerator temperature may be useful to ensure that the incinerator is properly operated. 

            The regulation or permit should state whether monitoring done by the industry  can be used as evidence of noncompliance.  Some EPA regulations allow emissions monitoring data to be used as evidence of violations.  Other regulations do not. If not, the monitoring data can only be used to alert the government that a problem may exist and that emissions testing should be conducted.     

            Environmental regulations should require sources to keep records of monitoring data and any other information relevant to determining compliance.  This may include records of emissions, operating conditions, and operating logs.  The regulation should clearly set forth the content of the required records.  These records should be made available for inspection by government inspectors.

            The regulation or permit should also specify how long the records should be kept.  Generally, EPA has required that records be kept for at least five years.  United States law limits the period of time for bringing claims for civil penalties in most circumstances to five years from the date of the violation.  If a United States environmental regulation imposed a recordkeeping requirement of less than five years, it would allow industry to dispose of records that could otherwise be used as a basis for enforcement.

            Since governments generally do not have sufficient resources to rely on inspections of plants or records alone to monitor industry's compliance with environmental requirements, it is essential that regulations and permits require periodic reporting to the government.  Reporting can include monitoring data, emissions above the standard, and emergency emissions or discharges.  The regulation or permit should be specific about the content of the required reports.  It should also be clear about when the reports are required and to whom they must be sent.  If authority to enforce has been delegated to a governmental subdivision, the regulation or permit should be clear about whether reports go to the subdivision, the central agency, or both.

            Reporting should be frequent enough to allow the government to respond to an environmental problem in a timely way.  EPA regulations require releases of toxic pollutants to be reported, in some cases, within 24 hours.  More routine reporting is typically required quarterly or twice a year.

            RCRA import regulations serve as an example of the problem associated with insufficient reporting.  The regulations require the owner or operator of a facility that receives a hazardous waste from a foreign source to submit a notice to EPA once for each wastestream and for each foreign source.  There is no requirement to submit notice of individual shipments of hazardous waste.  Thus, the regulations significantly limit EPA's opportunity to take any action on individual shipments.

            The NPDES permit program, on the other hand, offers a good example of effective monitoring and reporting requirements.  The most important is the submission of monthly Discharge Monitoring Reports (DMRs), which summarize discharge monitoring data and identify periods of violations.  The DMRs have resulted in easier enforcement for EPA and for citizen groups in the United States.  Generally, citizens have been far more successful bringing enforcement actions in such circumstances than where they try to enforce other regulations that do not include such specific monitoring and reporting requirements.

            To have integrity, a self-monitoring and reporting program must include significant disincentives for false or misleading reporting and the perception that false reports will be pursued aggressively.  In the United States, false reporting is a criminal offense, and a significant portion of EPA's environmental crimes program is directed at this kind of conduct.

 

MONITORING, RECORDKEEPING, AND REPORTING REQUIREMENTS

 

            Ë          Does the regulation or permit require periodic or continuous monitoring?  Does it specify the methods to be used to monitor?

 

            Ë          Is it clear what activity is to be monitored?  Does the monitoring data show whether the facility is in compliance?

 

            Ë          Does the regulation or permit specify what information is to be recorded?  Does is make clear how long records are to be retained?  Are the records available for inspection?

 

            Ë          Does the regulation or permit require periodic reporting to the government?  Does it specify what information is to be included in the reports?  Is the information enough to determine whether the facility is in compliance?

 

            Ë          Is reporting frequent enough to allow the government to respond to a violation in a timely manner?

 

            Ë          Is failure to monitor, keep records, or submit a report a separate, enforceable violation?

 

            Ë          Are exceptions to monitoring, recordkeeping, or reporting requirements clear?

 

            Ë          Are there serious sanctions in place for false reporting?

 

3.7       Adopted in Accordance with Correct Procedures

 

            While not often considered an enforceability issue, a regulation or permit may be impossible to enforce if it is not adopted under proper procedures.  In the United States, regulations must be adopted after notice to the public and an opportunity for public comment.  Failure to adhere to those procedures may result in a regulation being declared invalid by a court, making it unenforceable. EPA's RCRA program is a prime example of the difficulties that can be presented by procedural defects in developing regulations.  A federal appeals court recently declared invalid two provisions that are central to the RCRA program, the "mixture" rule and the "derived from" rule.   Shell Oil v. EPA, 950 F.2d 741 (D.C. Cir. 1991).  These rules defined hazardous waste to include any waste that was mixed with a listed hazardous waste, or is derived from a listed hazardous waste.  These provisions were adopted as part of a broad regulation that implements RCRA, after public notice and comment.  The court ruled, however, eleven years after EPA adopted the regulation, that EPA had failed to give the public adequate notice of these particular provisions.  Accordingly, the court invalidated the rule. 

            Because of that court decision, another federal appeals court subsequently set aside a criminal conviction for violations of RCRA.   U.S. v. Goodner Brothers, No. 91-2466 (8th Cir., June 4, 1992).  A company and two individuals had been convicted of knowingly treating, storing, or disposing of a hazardous waste without a permit.  Following the Shell decision, the court ruled that the rule was invalid from its adoption in 1980, and that the government could not take enforcement action in this case for illegal handling of waste based on the mixture rule.  In response to the Shell decision, EPA reinstated the "mixture" and "derived from" rules, thereby mitigating the impact of the decision on enforcement.

            Regulators should be alert to the correct procedures in adopting environmental regulations.  A regulation which includes all the necessary elements but is declared invalid based on procedural defects is simply not enforceable.

3.8       Additional Considerations for Enforceable Permits

 

            A permit generally regulates either the construction or operation of a facility that is a source of pollution.  Permit requirements are typically based on requirements established in laws, regulations, or guidance.  The most common type of permit is a facility-specific permit.  In the case of a very large universe of small sources, "general" permits may be more practical.  A "general" permit is published like a regulation and gives operating permission to conduct specified activities for anyone who meets certain conditions.

            Permits can serve an important enforcement purpose by combining in one document all the environmental requirements that apply to a source.  To be most effective in this regard, a facility's opportunity to contest a permit's provisions should be limited to a brief period after it is issued.  Accordingly, a permit system can eliminate disputes in enforcement actions over which requirements apply to a particular source. 

            Many of the elements that make up an enforceable regulation apply to writing permits as well.  There are, however, additional points which must be considered in developing a permit system.  The law or regulation establishing the requirement to have a permit must specify clearly who must obtain a permit, and when.  Most importantly, the regulation should address the consequence of not obtaining a permit.  For example, the regulation may specify that the source cannot be operated after a particular date without a permit.  In such case, the government could take enforcement action against the source for failure to obtain a permit.  Procedures must be specified for obtaining a permit, renewing a permit, and revising a permit.      The permit must be clear regarding the length of time for which it is valid, and what requirements apply when an application for permit renewal is pending.  It should contain specific requirements such that the source's performance can be measured.  If the requirement is an emission limit, the permit should state the time frame for determining compliance.

            Enforcement problems can arise if a permit system is poorly designed.  In developing regulations to set up a new operating permit system under the United States Clean Air Act, EPA was alert to several issues that could have hampered enforcement.  First, EPA included a requirement that each source conduct periodic monitoring of its compliance with permit requirements.  EPA regarded this requirement as important to assure that industry maintained compliance with air pollution control requirements.

            Second, EPA required that major increases in pollution could be made only if the permit was modified.  EPA wanted to assure that the permit continued to reflect the source's pollution levels and activities, so that it could serve as the primary basis for enforcement.

            Third, EPA provided flexibility for sources to make certain changes in their operations to meet changing market conditions without obtaining a permit revision.  EPA did not, however, allow sources to operate at variance with compliance provisions, such as monitoring, recordkeeping, and reporting requirements.

 

4.         SOLUTIONS

 

            The United States EPA has taken or is taking several steps to ensure enforceability of regulations and permits.  First, for several years EPA has provided training to personnel involved in writing regulations and permits.  A major element of that training has been enforceability.  We use a checklist similar to the one presented in this paper.  In this way, we hope to sensitize personnel throughout the Agency, not just in enforcement, to the need for enforceable regulations.

            Second, EPA's Office of Enforcement has developed a regulation development course designed specifically for enforcement attorneys, which should ultimately enhance their effectiveness in advocating enforceability in the rulemaking process.              Third, EPA's "Enforcement in the 1990's" Project made several recommendations to enhance environmental rulemaking.  Most notably, the project workgroup proposed the use of "field testing" of environmental regulations.  Under this concept, before a regulation is adopted in final form, it would be subject to a trial period to test industry's ability to understand and comply with the regulation and EPA inspectors' ability to determine compliance under the regulation.  Field testing can be done as part of the initial information gathering process by the regulatory agency, or it can be part of the public comment process on a proposed regulation.

           

5.         CONCLUSION

 

            Regulations and permits will protect the environment only if industry complies with them.  Government can do the most to foster compliance by writing regulations and permits that are enforceable.  Clear, specific, and practical regulations will promote a high degree of voluntary compliance and will make it easier for governments to respond effectively to violations of environmental requirements.