Next Generation Compliance - The most effective way to achieve compliance with the law is to make it easier to comply than to violate. EPA is ...
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Next Generation Compliance
The most effective way to achieve compliance with the law is to make it easier to
comply than to violate. EPA is using new technologies and lessons learned
about what drives compliance to reduce pollution and improve results
Cynthia Giles is the assistant administrator for EPA’s Office
of Enforcement and Compliance Assurance. Special thanks to
David Hindin, who contributed to the ideas described here and is
leading EPA’s Next Gen work.
W
illiam D. Ruckelshaus, EPA’s first Tough enforcement was a new idea in envi-
administrator, said that the first ronmental protection back in 1970. Today strong
thing he did when he took the helm criminal and civil enforcement is — and will con-
in 1970 was file a bunch of lawsuits tinue to be — an essential part of our environmen-
against the country’s biggest pollut- tal protection work. But we can accomplish even
ers. He made it clear to everyone that there was a more by moving our compliance programs into the
new sheriff in town who was going to take action 21st century. Just as the Internet has transformed
to stop the all too apparent air and water pollution the way we communicate and access information,
plaguing the nation. advances in information and emissions monitor-
Four decades later, violations of pollution stan- ing technology are setting the stage for detection,
dards still can pose a threat to children with asthma, processing, and communication capabilities that
adults with cardiovascular disease, people suscep- can revolutionize environmental protection. We
tible to waterborne illness, and all of us exposed are moving toward a world in which states, EPA,
to chemicals in our daily lives. And violations still citizens, and industry will have real-time electronic
harm American businesses that are doing the right information regarding environmental conditions,
thing and should not have to compete with com- emissions, and compliance, and we are using what
panies, domestic or foreign, who don’t play by the we have learned about compliance to make it easier
rules. to comply than to violate. We call it Next Genera-
While we are justifiably proud of the significant tion Compliance, or Next Gen.
progress we have made as a nation on the visible
violations that fueled public outrage in the 1960s, Rules With Compliance Built in
big challenges remain. Today’s problems are pollu-
tion not apparent to the naked eye that still poses For years, we have assumed that federal and state
real threats to health, the large number of smaller agencies would help ensure that we were achieving
sources that collectively make a big difference, and the benefits contemplated in environmental regu-
pollution that isn’t always easily identifiable as what lations by taking action against violators. Research
comes from the top of a stack or the end of a pipe. shows that enforcement cases do more than just
These compliance problems require new tools and improve compliance by the entity sued; they also
new thinking. Environmental compliance today deter potential violators and thus improve compli-
requires a change just as dramatic as the one Bill ance generally — much as seeing a speeder getting
Ruckelshaus led over 40 years ago. ticketed tends to slow traffic. However, a small
22 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2013, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted
by permission from The Environmental Forum®, September-October 2013number of federal and state enforcers cannot effec- comment on a proposal to make initial compliance
tively police millions of regulated facilities. While much easier. The idea was to allow the small num-
enforcement is an essential part of EPA’s compli- ber of air pollution control equipment manufactur-
ance program, it is not realistic to think that en- ers to have their equipment certified by EPA and
forcement alone will get us to the levels of compli- then tell energy extraction companies that if they
ance envisioned by our rules. buy one of the certified compliance-ready models,
We can get a bigger bang for the buck by work- they can just report that fact, eliminating the need
ing hard to make sure we design rules that will work for separate field testing. The manufacturer builds
in the real world — rules with compliance built in. the compliance-ready equipment and reports who
We know a lot about what drives compliance; we purchased the approved models. Compliance
need to use that knowledge to structure programs checks are easy: government need only electroni-
that will work better and be more self implement- cally compare the user’s purchase and installation
ing. For example, take reducing emissions from au- reports with the manufacturer’s sales reports. The
tomobiles. There are millions of cars and trucks in more resource-intensive interaction is limited to a
the United States, each of which is a small source of small number of manufacturers. Approaches like
harmful emissions that collectively pack a wallop for this have the potential to make compliance easier
air quality. One could imagine the nightmare of re- and less costly, while improving results and increas-
quiring each owner to independently purchase and ing certainty for the regulated community.
install air emissions control equipment, depending More effective and more efficient ways to get the
on government to find and ticket violators. Instead, necessary pollution controls installed are not the
we require auto manufacturers to install pollution whole story. Other compliance challenges remain
controls when the car is made, and to certify cars — most obviously the need to ensure that sourc-
as meeting the standard. For equipment installa- es are properly operating their pollution control
tion requirements, government monitors the small equipment. Advanced monitoring and informa-
number of manufacturers, not the millions of car tion technologies, discussed below, can be part of
owners, and can focus enforcement on those who the answer to this second-order problem. Efficient
deliberately circumvent the installation standards. mechanisms for ensuring installation of the re-
EPA is using this thinking today. In an April quired pollution controls will help to free up scarce
2013 proposed rule requiring emissions controls for resources to focus on downstream challenges.
thousands of oil and gas producers, the agency took Next Gen is about writing rules that work well
Copyright © 2013, Environmental Law Institute®, Washington, D.C. www.eli.org. S E P T E M B E R / O C T O B E R 2 0 1 3 | 23
Reprinted by permission from The Environmental Forum®, September-October 2013and that achieve the desired result without requir- you can’t see or smell, which is often the case, par-
ing court action. For starters, we should focus on ticularly for toxic pollutants.
greater simplicity and clarity. One of the principles Advanced monitoring technologies can help
we have learned over years of hard experience is make these problems obsolete. Monitoring devices
that compliance is better when the rules are simple are becoming more accurate, more mobile, and
and clear. When you consider what will actually cheaper, all of which are contributing to a revolu-
happen in the real world, the net environmental tion in how we find and fix pollution problems.
benefit of a simpler, clearer rule may trump a more Through the use of these technologies, some com-
detailed and in theory more protective standard. panies have discovered that they greatly underes-
We need to think more carefully about balancing timated their pollution, sometimes by an order of
flexibility and simplicity when we write rules and magnitude. Actual measurements, as opposed to
permits. estimates, often show far higher emissions than we,
There are many other strategies that we should or the company, thought. Real time monitoring is
explore in writing rules. Independent third-party possible now — not just for air, but also water. For
validation can work in some cases. Requiring mon- example, in one much-used river, EPA has installed
itoring is also surprisingly effective at improving solar powered continuous monitoring devices that
performance; a facility probably won’t take steps upload via cell phone technology to agency com-
to improve compliance if it doesn’t even know it puters.
is violating. Requiring certifications of compliance As we use advanced monitoring equipment in
can also transform compliance rates for some pro- our enforcement work, we are finding serious pol-
grams; certifications require someone to check, and lution issues that require attention. Many com-
increase the chances that problems are caught and panies are themselves adopting this technology to
fixed, creating good jobs and improving protection. manage their operations and to help them quickly
Public disclosure is another underutilized tool; identify and fix problems, saving money, reducing
there is powerful evidence that publishing informa- pollution, and avoiding compliance problems. In
tion about company performance drives better be- our enforcement cases we are getting agreements
havior, as pressure is applied by customers, neigh- to install these monitoring technologies at fence
bors, investors, and insurers. And market strategies lines so that companies and communities can know
that set standards but allow companies to decide about pollution, and prompt action can be taken
how best to get there can be simple and effective to fix problems before they become serious health
in the right circumstances, reducing costs and pro- concerns.
viding flexibility for industry while achieving better One of the more powerful uses of these technol-
results. We saw that approach work in the acid rain ogies is to make previously invisible pollution vis-
program, where an integrated system of pollution ible. Infrared cameras, for example, allow the user
allowances, continuous monitoring, electronic re- to actually see dark plumes that look like smoke
porting, and market trading got fast and efficient when volatile organic compounds such as benzene
results and very high levels of compliance. Rules are released to the air, even though these emissions
with compliance built in can improve protection of are invisible to the naked eye. By using equipment
health and the environment without depending on that looks like a video camera, and is nearly as easy
enforcement cases. to operate, we can locate pollution leaks and re-
leases. These videos can be powerfully persuasive
Advanced Pollution Monitoring in conversations with companies that didn’t believe
they had a pollution problem.
It used to be hard to figure out how much pollution As the price of monitoring devices drops, we are
was coming from a stack or a pipe. Expensive tests not far from the day when the public will have ac-
done once a year or less often created huge uncer- cess to pollution monitoring tools. Communities
tainty about how much pollution there really was, with monitoring data will encourage better perfor-
and whether that amount varied much from day mance by industries they host. As pollution data
to day. Grab samples taken at wide intervals cre- become more available, companies may find that
ated opportunities to sample at times when pollu- doing their own monitoring will better ensure that
tion might be lower, further obscuring the accuracy accurate and relevant information is available to the
of reporting. The proliferation of smaller sources, public. These changes, driven by new technologies,
which can be individually modest but collectively will encourage more direct industry and commu-
significant, made these challenges even greater. nity engagement, and reduce the need for govern-
These uncertainties are compounded for pollution ment action.
24 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2013, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted
by permission from The Environmental Forum®, September-October 2013Electronic Reporting set up between government and facilities, govern-
ment can provide specific, relevant information and
Today just about every aspect of our lives can be compliance assistance to industry. For example, if
managed electronically. We can bank from home, a company reports that it’s discharging high levels
send pictures from phones, and track packages of nitrogen, the computer can direct them to help
across the country from our desks. And yet, much specifically about reducing nitrogen loading.
of the information reported to EPA and states by
facilities is still submitted on paper, and waits for Increased Transparency
a government employee to manually enter the data
into computer systems. Or, in a time of declining You know those reports that come once a year with
budgets, the paper sits in a corner unopened, until your drinking water bill that tell you about the
someone has time to examine the data and see if quality of water you get from your drinking water
any violations appear likely. This means that im- supplier? Do these reports just tell you how clean
portant pollution and violation information can your drinking water is or do they help to actually
go unnoticed. Errors can be introduced through improve water quality? A 2008 study in Massa-
manual data entry, requiring aggravating and time- chusetts found that larger drinking water systems
consuming correction processes. And far too much required to mail the reports directly to customers
time ends up being spent on minor issues while reduced their total violations by 30–44 percent as a
major ones go unaddressed. This is particularly a result of this new reporting, and reduced the more
problem for states, which bear the largest share of severe health violations by 40–57 percent. A rule
the burden of dealing with mountains of paper. E- that originated with the desire to inform people
reporting is a solution that saves time and money turned out to accomplish a lot more.
while improving results. Using transparency as a way to improve perfor-
Widespread electronic reporting opens the door mance is one of the most important things we have
for private sector development of e-reporting tools, learned about strategies to increase compliance.
with the potential to be both cheaper and more user Probably the best known environmental example
friendly than what government can provide. Soft- is the Toxics Release Inventory, where the require-
ware developers can take advantage of the market ment to report and publish information is credited
created by electronic reporting to develop e-report- with a significant drop in emissions. EPA’s efforts
ing tools that work better for the user, with no ad- to make our data more available are only starting
ditional cost to the taxpayer. Private tax preparation to scratch the surface of the ways transparency can
and reporting tools are an example of a private sec- improve results.
tor innovation that is both easy to use and nimble A sophisticated understanding of how transpar-
in responding to customer needs. ency works as a regulatory tool has helped us to
E-reporting also allows for electronic data checks design transparency programs that work. Some re-
that can help avoid problems and reduce transac- search suggests that transparency serves a reminder
tion costs. For example, software reporting tools function; publishing data on facility performance
that allow self correction, by flagging inconsistent draws attention to problems and brings senior-level
or mathematically impossible entries, as is done by focus to bear on fixing them. The reminder func-
EPA’s electronic Greenhouse Gas Reporting Tool, tion also works within peer groups; companies can
helps to prevent mistakes before they happen, sav- see how their peers perform, and this can both con-
ing everyone time and money. firm that better performance is possible — others
Electronic reporting also creates greater transpar- are doing it — and provide competitive incentive
ency. If you want to view paper records, you need to improve. Some companies are using transpar-
to travel to a government office and sit there with ency as part of their business model, believing that
your pad and pencil taking notes. How much easier sharing more information with the public about
would it be if the same data could be reviewed on- strong performance provides a competitive edge.
line, creating government that is more open and Public disclosure and transparency also improve
gives people information about facilities and pol- results by putting pressure on lower performing
lution that affects them? Greater accessibility could companies. Public information acknowledges the
also drive better compliance performance as facili- many strong performers that work hard to be good
ties learn from each other about what performance neighbors, and motivates others to devote effort
is possible. up front to avoid problems that invite bad press,
Electronic reporting is not a one-way street. or scrutiny from neighbors and government. Pub-
Once an electronic mode of communication is licly known violations may also alert investors and
Copyright © 2013, Environmental Law Institute®, Washington, D.C. www.eli.org. S E P T E M B E R / O C T O B E R 2 0 1 3 | 25
Reprinted by permission from The Environmental Forum®, September-October 2013insurers to poor management, providing financial all serious violators would either return to compli-
motivation to avoid violations. If we can create in- ance in six months or face enforcement. Six months
centives that push companies to just do the right later, there was a big upturn in enforcement ac-
thing the first time so much the better. tions, as states and EPA followed through on this
When information on compliance and pollution promise. As a result of this focused state and federal
is publicly available, citizens can see how good a attention over the last three years, we have seen a
job their government is doing at protecting them 65 percent drop in reported public water suppliers
from health threats. The same theories that sup- with serious violations, now that operators know
port use of greater transparency to improve facility that we are serious about the importance of compli-
performance also work for government; states and ance with drinking water standards. The increased
EPA regions can see that others are getting better attention has also inspired drinking water systems
results, which can motivate a push to find out if and government to correct inaccurate data, helping
what others are doing can help. This is part of the us to focus our attention on the big problems. With
thinking behind our recently published state dash- only a modest investment of resources, this new ap-
boards (www.epa-echo.gov/echo/). The public can proach has made a big difference.
go online and easily see how federal and state gov- Even in a time of declining budgets, we are de-
ernments are doing inspecting major sources, find- veloping more innovative approaches like these to
ing violators, and taking action. help us get better protection. The Next Gen ideas
Of course, transparency only works if the infor- that can work in regulations can also work in en-
mation is important and correct. Publicizing data forcement cases. Advanced monitoring is helping
that are incomplete or wrong undermines the goal. us to identify violators and target enforcement ef-
Transparency has to be coupled with a program to forts, so we are less dependent today on self-iden-
collect the right information. And where govern- tified violations, tips, and complaints to direct and
ment relies on self reporting for compliance data, focus our enforcement work. Electronic reporting
we also need ways to check for accuracy. That’s why is also being incorporated into enforcement settle-
Next Gen principles for advanced monitoring and ments, saving time and money for both the defen-
electronic reporting go hand in hand with transpar- dant and government. Third-party verification of
ency: providing accurate information on real pollu- the defendant’s compliance status is part of both
tion issues. civil and criminal cases, improving compliance and
Releasing an avalanche of data is not the answer. saving taxpayer dollars.
For the public, the key is relevant, user-friendly Many states are already moving in the directions
information, such as easy-to-understand miles per discussed here, recognizing that shifting quickly
gallon ratings for vehicles. For more expert us- into the electronic age has the potential to improve
ers, larger sets of more comprehensive data can be effectiveness and save money. These strategies will
valuable, especially if they can be quickly and eas- also help support states that want greater flexibility
ily viewed and sorted. Two recent examples: first, to focus on the most important problems, because
the Facility Level Information on Greenhouse Gas better, more accurate information will encourage
Tool allows users to explore greenhouse gas data evidence-based experimentation to find out which
for individual facilities using mapping and graph- strategies work to improve compliance and which
ing features (ghgdata.epa.gov) and, second, there is do not. EPA is working closely with our state part-
an online tool that allows easy identification of the ners to design and implement the electronic agen-
biggest contributors to water pollution problems cies of the future.
(go.usa.gov/TGxA). Even in an era of very tight Vigorous enforcement of the law will always be
budgets, thoughtful transparency strategies can im- the backbone of environmental protection. It was
prove results, and open the door for private sector true when Bill Ruckelshaus launched EPA, and
development of apps that will make a difference. it remains true today. If we are to do our job to
protect the public and assure a level playing field
Innovative Enforcement Strategies for complying businesses, states and EPA need to
work together to make sure there are consequences
In 2010, EPA and the states embarked on a new for violations. But everyone is better off when we
approach to protect people’s health by improving prevent violations. As we continue to learn about
compliance with drinking water standards, one of ways to strengthen compliance, and take advantage
EPA’s top priorities. We implemented a new scor- of advances in technology, Next Gen can transform
ing system to identify drinking water suppliers with our protection work even in a time of declining
the most serious violations, and announced that budgets. •
26 | T H E E N V I R O N M E N T A L F O R U M Copyright © 2013, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted
by permission from The Environmental Forum®, September-October 2013You can also read
