THEME 2: DESIGNING ENFORCEABLE ENVIRONMENTAL REQUIREMENTS
Reporter: Marcia E. Mulkey
1 Goals
Enforceable requirements form the Basic building block for all enforcement. Without success in making laws, regulations and permits enforceable, we cannot have enforcement success regardless of what structures, personnel, skills, legal tools, or resources we bring to the task.
2 Presentations
The lead paper for this theme, presented by Mr. Fulton of the United States and authored jointly by Mr. Fulton and Mr. Gilberg, identifies and discusses seven criteria for developing enforceable environmental regulations and permits. These seven criteria represent the first set of lessons learned from this theme and are summarized here as numbered lessons.
Lesson #1. Enforceable requirements must be understandable. Understandability is developed through use of clear definitions, simplicity, and avoidance of ambiguity.
Lesson #2. Enforceable requirements must precisely define the coverage of the requirement. This includes precise delineation of the regulated industry, the regulated activities, and the regulated substances; The specific pollution sources and process as well as the specific actors, such as owners or operators, should be described. Put simply, the requirement should answer the question "to whom and to what activities do requirements apply?".
Lesson #3. Enforceable requirements must establish a clear standard of conduct. Clear standards include both measurable, non-subjective standards and precise, narrowly drawn exemptions or exceptions (with the burden of proving qualification for exemption placed on those who claim it).
Lesson #4. Compliance must be easily measured or determined. The standards should include precise statements of how compliance is to be measured (including appropriate test methods). Compliance measurement/demonstrations by both the regulated industry and by the enforcing government should be addressed.
Lesson #5. Requirements should include clear deadlines for compliance. The requirements should include a date certain for compliance, not contingent on any event or, if contingent, with a clearly specified, unambiguous contingency. Enforceable interim deadlines are also recommended.
Lesson #6. Enforcement is enhanced by self-monitoring, mandatory recordkeeping and reporting. Frequent monitoring intervals, specified periods for record retention and defined content for records and reports are important as are separate and significant sanctions for false or nonreporting.
Lesson #7. Proper adoption procedures assure that the requirements become and remain effective.
Following this lead paper, and the lessons it presented, additional major papers were presented by panelists and from other key participants in the conference. Each of these papers and their principal lessons are identified below.
Ms. Victor of Sweden presented a paper authored by Mr. Sverndal entitled "Swedish System of Integrated Permitting - Whether it Enhances Compliance and Enforceability". This paper described the Swedish system of multimedia, integrated permits, where both permitting authorities and enforcement/permit supervision authorities focus on permits in an integrated, cross-media manner. Permits are designed to detail the covered activities and the conditions applied to those activities. The Swedish experience provided lesson #8 for this theme.
Lesson #8. When a single permit governs all the activities at a facility, the enforcement authorities can much more easily conduct multimedia, integrated enforcement.
Mr. Angst of Germany present his paper on "Environmental Protection and Environmental Policy in East Germany - Example: Saxony." This paper explains that environmental problems in Saxony are unusually severe, involving near-dead rivers, extremely hazardous air quality and major waste problems, including nuclear waste. In Saxony, recent dramatic governmental change (the reversal of German division) presented the opportunity to choose a new environmental structure. The result in the state of Saxony is an interdisciplinary, multimedia ministry with enforcement authority assigned to counties and towns, with specialized state-wide agencies for technical support and oversight. The Saxony experience offered a further lesson for this theme.
Lesson #9. When a new structure chooses an integrated, multimedia approach, such structure also enhances enforcement.
Mr. de Vries of the Netherlands presented his paper "A Clear Approach Gives Full Compliance" which details the Dutch experience with efforts to improve both licensing and enforcement. This two-pronged effort has included a major attempt to conclude the licensing process for a large backlog of unpermitted facilities. This effort has focused on developing adequate requirements and moving toward stricter provisions. Funding and personnel were targeted toward this effort. On a parallel track, the Netherlands enforcement authorities have targeted specific industries, revealing a number of permit terms "of low quality", such as failure to define types of waste covered by the permit. Based on this combination of permitting and enforcement, this theme derives its lesson #10.
Lesson #10. Completion of permitting and quality of permitting are key elements for a successful enforcement program. Major enforcement efforts can reveal problems with permits and with the clarity of requirements.
As part of this theme, Ms. van der Meer of the Netherlands offered an oral presentation on the nature and role of the police in the Netherlands enforcement system. This very interesting presentation illustrated that the police presence throughout the society and around the clock brings valuable assets to environmental enforcement, and that difficulties in use of the police can be addressed through training and coordination with "expert" environmental agencies. In the context of the enforceability theme, the conference learned that the police have found it difficult to work with complex legislation and with the ambiguities often found in environmental requirements. As a result, this presentation provided a further lesson for this theme.
Lesson #11. Police involvement in environmental enforcement can be made much more effective where requirements are more easily understandable and easily identified.
Mr. Smith, a private United States attorney sponsored at the conference by the government of Belgium, presented his paper on "Designing Enforceable Environmental Requirements for the European Economic Community (EEC)." This paper addressed both the design of EEC directives for purposes of subsequent implementation by member states and the design of EEC directives and member-state laws as they relate to regulated activities and industries. The problem areas identified in this paper included the following:
- The use of general and conceptual language has created implementation problems
- The dominance of policy and technical considerations and the limited involvement of lawyers has resulted in less attention to precision of language, inclusion of recordkeeping and reporting, and the like; and
- The absence of strong public and non-governmental organization involvement in requirement development and accountability for implementation has affected the nature of the EEC requirements.
Based on this analysis of EEC experience, a specific lesson emerged.
Lesson #12. Design problems of EEC directives have slowed and even prevented effective implementation in member states and application to regulated communities. Attention to specificity, language, and enforceability could be enhanced through more use of lawyers' skills and improved public involvement.
3 Plenary and Open Discussion Sessions
Following the presentations by panelists, this theme provoked a broad dialogue among participants, including representatives from Denmark, the United Kingdom, the EEC, France, Spain, the Netherlands and the United States. Specific points amplified and refined the lessons developed by the panelists, adding a richness of texture to the theme. Several examples of these additions to the lessons are described here.
Lesson #1. Understandability of Requirements.
Simplification of requirements may result in harsher, less equitable standards than more complex provisions may permit. There are also tradeoffs between greater precision (lesson #2) and simplicity: sometimes precision adds complexity.
Lesson #3. Clear, measurable Standards of Conduct.
Although numerical standards are preferred for enforceability, there was recognition that work practices - type standards may be the only approach available or the best approach in the circumstances.
Lesson #6. Value of self-monitoring, mandatory recordkeeping, and reporting.
There was recognition that requirements for self-monitoring, recordkeeping, and reporting may impose significant burdens on regulated parties. On the other hand, participants with experience implementing such requirements reported less than expected burdens. In addition, the additional value to the public of monitoring and reporting was emphasized.
Lesson #10. Completion of Permitting Activities.
Participants were interested in the use of "interim status" for facilities awaiting permitting.
The key advantage to this kind of process is its ability to identify and define membership in the regulated community. The primary disadvantage may be the relief of pressure to complete permitting, and the resulting loss of the enforcement advantage that comes from well-written, enforceable permits.
4 Conclusions
In sum, the full development of the theme of enforceability of environmental requirements early in the conference served to establish a foundation for the discussion of other enforcement issues. Inspection capacity (theme #3) and legal authorities (theme #4) depend for their effectiveness on the existence of clear, enforceable requirements. Similarly, economic development (theme #5) proceeds best in the context of clear requirements and public participation in enforcement (theme #7) is particularly sensitive to the clarity and enforceability of the requirements. Therefore, the contributors to the enforceability theme helped assure the value of all aspects of the conference.