1

UST Stakeholders MeetingCompliance & Enforcement

“C/E 101”

MassDEP January 2012

2

Outline

• Background on the Role of C/E at DEP

• C/E Decision-Making at DEP

• Enforcement Response Guidance (ERG)

3

Outline (continued)

• “Opportunity to Cure” Strategies

• Comprehensive Compliance Strategies

• The Role of Outreach & Technical Assistance

4

Mission Statement of DEP

Directly improve the quality of the environment and eliminate or reduce threats to the same by ensuring that regulated entities in the system remain in compliance and get those into the system that need to be in the system

5

DEP’s Strategies to Accomplish Mission: the PACER Model

• Permitting (including certifications, registrations, etc)

• Assistance (training, technical, financial)

• Compliance Assessment (inspections, reports, 3rd-party)

• Enforcement

• Regulation (and policy) Development

6

• Guiding Principle: “enforcement” should not be the “tail that wags the dog”, its one piece of the compliance assurance puzzle

7

• Most of DEP’s authorizing statutes provide for criminal and civil sanctions for violations, e.g.– MGL Ch 111 s 142A: “Clean Air Act”– MGL Ch 21 S 42: “Clean Water Act”– Among many others (e.g. Wetlands,

Hazardous Waste, etc)– Involves Courts and usually AG or DA

8

Civil Administrative Penalties

• MGL Ch Ch21As.16(passed in 1986)

• Allows for DEP enforcement actions without going to Court

• Applies to all DEP regulatory programs

• Appeal rights for unilateral agency orders and for penalties

9

Summary of Key Drivers for DEPs Enforcement Activities

• Environmental Protection

• Level the playing field for regulated community– Remove economic benefit from non-

compliance– Deter future non-compliance– Bring entities back into compliance– Achieve social/societal justice

10

Summary of Key Drivers for DEPs Enforcement Activities (continued)

• Major expectation with delegation of Federal Programs

• A major “metric” of agency performance (legislative, environmental groups, other stakeholder groups)

11

A Primer on DEP Admin Penalty Program

Notice of Noncompliance (NON): primary lower level enforcement tool– often first step before penalty or other

action– Key components:

» Define non-compliance» Define what needs to happen to return to

compliance» Time period to fix problem

12

A Primer on DEP Admin Penalty Program (continued)

– not an appealable action– no penalties associated with NON

13

Penalty Assessment Notice (PAN)

• Primary higher level enforcement tool

• Can be issued if NON not complied with or pattern of non-compliance

• Under certain conditions can be issued without a prior NON e.g.– Willful violation, not result of error,– Unauthorized release of hazardous waste,– Certain Ch 21E provisions– Resulted in significant impact

14

Penalty Assessment Notice (PAN) (continued)

• PAN can be appealed

• Maximum penalties $1000 & $25000 per day depending on types of violation

• Recover economic benefit as part of penalty

• Twelve factors considered in developing penalty amount

• Consent Order is preferred outcome

15

Other Key Features of Admin Penalty Program(The alphabet soup)

• ERG

• NOEC

• ACOP

• ACO

• UAO

• SUS

• STIP

• SEP

• OH OH

16

C/E Hierarchy & 5-year Annual Average

• Inspections: 7500

• NONs/LLE: 2400

• PAN & Orders: 850

• Referrals: 30

17

C/E Decision Making Objectives

• Determine that a clear violation has occurred

• Fair, impartial & consistent response

• Build an enforceable case

• Select right enforcement tool

• Consistent with C/E policies

• Advances agency’s statutory mandate and strategic priorities

• Real time management review

18

Overview of C/E Decision-Making

• Criteria for targeting inspection

• Class I vs. Class II & III violations

• NON decisions

• HLE decisions– RERC– CSC– Special Initiative a CCS’s

• Role of ERG

19

Enforcement Response Guidelines

• Framework for consistently exercising enforcement authority and discretion

• Principles: Warning letters vs. NON’s; exceptions for comprehensive compliance strategies

20

Enforcement Response Guidelines (continued)

• Procedures: Calculations of administrative penalties; administrative right of entry

• Policies: Homeowners, Small Business, Audit, SEP, EMS

• Guidebook not a cookbook

21

“Opportunities to Cure” Strategies

• Self evaluation’s/inspections by O/O,

• As a component of ERP,

• Role in Self Audit Policy,

• NON as an “opportunity to cure”

• Proposal for draft regulations

22

Comprehensive Compliance Strategies

• What are they and when are they typically used,

• Components of a CCS,

• Approval process for a CCS,

• Role of outreach and technical assistance

23

• Q & A

• Next Steps for UST Program