|
Compliance and Enforcement Annual Report for 2008 Printer-friendly version: PDF 1.9 MB
 In 2008 the Massachusetts Department of Environmental Protection continued to implement a strong enforcement program, at the same time raising the bar and increasing compliance by recognizing and encouraging best business practices. MassDEP has worked to combine our robust enforcement presence with increased education, outreach and technical assistance for the regulated community.
Our efforts in 2008 included expanding the use of both traditional and new methods of reporting and measuring, thereby enabling us to better gauge and assess both enforcement results and increased compliance activity. To that end, the 2008 report focuses on three different measures:
1. Return to Compliance Results;
2. Alternative Measures of Compliance and Enforcement; and
3. Traditional Enforcement Measures.
1. RETURN TO COMPLIANCE RESULTS:
In an effort to track "return to compliance results," one of MassDEP's Regional Offices launched a pilot study to review a significant portion of higher level enforcement actions (Administrative Consent Order or "ACO" and Administrative Consent Order with Penalty or "ACOP"). These enforcement documents had been issued from 2005 to 2008, and many had multi-year compliance schedules. The results of this review confirmed that most violators who choose to settle a case successfully returned to compliance. The small percentages of these cases that are in noncompliance face stipulated penalties and further enforcement.
2. ALTERNATIVE COMPLIANCE AND ENFORCEMENT MEASUREMENTS:
MassDEP also continues to work to quantify the non-traditional measures of success that result directly from enforcement actions. These measures, combined with traditional measures such as penalty dollars and compliance rates, provide a three-dimensional view of MassDEP's work. In 2008, our enforcement actions yielded important environmental benefits, including reduced ozone emissions, reduced asbestos particles released to the air, proper cleanup of contaminated soils, and protected drinking water for Massachusetts citizens.
Over the past several years, MassDEP has undertaken an effort to develop objective measures to help evaluate compliance and to better inform our targeted and strategic enforcement. To that end the Bureau of Waste Prevention has developed a process which started with "lessons learned" from evaluating the agency's Environmental Result Program ("ERP") and expanded efforts over the past few years to strategically plan inspections to target the highest environmental risks.
This strategy, "Beyond ERP Compliance Targeting," combines: periodic inspection of large sources of emission and discharges; single or multi-year studies of targeted groups; and assessment surveys of large numbers of smaller sources. The regular inspection of large sources of emissions or discharges satisfies our federal funding obligations and ensures that MassDEP has an active presence at facilities where a violation could result in the greatest release to the environment.
This strategy relies on Targeted Group Studies and Assessment Surveys which utilize a different approach to determining compliance at large numbers of sources.
Targeted Groups Studies: Targeted groups are specific types of facilities where experience suggests we might expect to find violations. Since 2005, 132 "targeted groups" have been visited for a total of 1,129 inspections. From these inspections 316 Notice of Noncompliance or "NONs" were issued for "minor" violations, mostly recordkeeping and housekeeping practices. The inspections also resulted in 115 higher level enforcement actions including penalties, orders and referrals to the Attorney General's Office. Twenty-six of these cases, 22% of the higher level enforcement cases, involved excess emissions or discharges to the environment.
Statistical Assessment Surveys: MassDEP has evaluated large classes of facilities using a random selection of facilities to inspect. During the 2005 to 2008 period several large groups of regulated facilities were the subject of this random inspection program to determine an unbiased overall compliance rate. In total, 1,760 inspections were conducted and only 5 cases resulted in higher level enforcement actions, 4 of which were linked to excess emissions and discharges.
These groups included:
- Dischargers of industrial waste water in unsewered areas - 99% substantial compliance
- Hazardous Waste Small Quantity Generators - 98% substantial compliance
- Air Major Sources - 98% substantial compliance
- ERP Dry Cleaners - 94% substantial compliance
The "Beyond ERP" approach provided important results regarding compliance status of specific regulated sectors, results which have been utilized to design appropriate regulatory oversight strategies based on compliance rates and potential impact to the environment. Importantly, the analysis demonstrated that in many sectors, the regulated community is in substantial compliance with the regulations. MassDEP will continue its efforts to expand upon this approach, to develop a systematic method for planning, deploying agency resources, assessing performance and reporting results.
3. TRADITIONAL ENFORCEMENT MEASURES:
The traditional enforcement measures for fiscal year 2008 reflect two trends: deterrence and targeted use of lower level enforcement tools.
In preceding years MassDEP had a marked increase in higher level enforcement actions taken and penalties assessed, with a peak in 2006. As expected, a consistent and robust enforcement presence in the field has an effective deterrent effect on noncompliance. Our strategic and visible enforcement efforts are designed to ensure that the regulated community remains aware of our presence and is encouraged to perform at their highest level, employing best management practices ("BMPs") that exceed regulatory requirements. In fact, many are doing exactly that, as demonstrated by the impressive audit results of the Beyond ERP Compliance Targeting Project described above.
Second, in 2008, the Department directed significant resources to increase lower level enforcement or the use of Notices of Noncompliance ("NONs") within select programs. In the right situations, NONs give violators a chance to cure and return to compliance allowing for immediate compliance upon discovery of a violation. MassDEP issued 2,791 NONs in 2008, 458 more than were issued in 2007. The practical effect of this effort is that more violators get a chance to come into compliance before facing higher level enforcement including order, penalty and referral to the Attorney General's Office. Of course, violators who received NONs in 2008 and failed to return to compliance are now facing higher level enforcement that includes penalties and referral to the Attorney General's Office.
MassDEP assessed penalties totalling $3.1 million in 2008. In addition, the cases MassDEP referred to the Attorney General's Office resulted in $2.2 million in penalties and fines. MassDEP, working through its Environmental Strike Force ("ESF"), continues to refer significant violations for civil or criminal enforcement through the Attorney General's Office. Effective enforcement utilizes all the available resources whether pursued administratively by MassDEP, or civilly or criminally with the assistance of the Attorney General's Office or other enforcement agency. A few higher level enforcement cases from 2008 are highlighted below.
Administrative Enforcement - BATG Environmental, landfill closure and capping
BATG Environmental was the operator hired by Millville to close and cap an inactive unlined landfill. In settling the enforcement action for failure to complete cap and closure, BATG Environmental entered into a schedule and agreed to paid $102,070 penalty. The MassDEP suspend payment of $18,000 of that penalty provided that BATG remains in compliance.
Criminal Enforcement - Commonwealth v. Pan Am Railroad and Subsidiaries
Pan Am Rail Road was indicted in April 2008, for failure to report a release of oil or hazardous material under Chapter 21E, the state Superfund law. The investigation, conducted by MassDEP Emergency Response staff and ESF investigators, revealed that an idling locomotive at Pan Am's rail yard in Ayer had a spilled hundreds of gallons of diesel fuel onto the ground. MassDEP alleged that Pan Am failed to report this release and instead tried to cover it up. (The case went to jury trial in 2009 and resulted in a guilty verdict on all 8 felony counts and a $400,000 penalty against the company.)
Civil Enforcement: Commonwealth v. Brandywine Corporation
MassDEP Environmental Strike Force investigated and developed this case for referral to the Attorney General's Office. The case concerned the alleged unpermitted alteration of five acres of freshwater wetlands on a parcel now used for automobile auctions. The settlement that was entered by the court required the owner to restore a portion of the altered wetlands, pay $200,000 towards wetlands enhancement in the Concord River Watershed and pay a $50,000 civil administrative penalty, plus $50,000 more upon failure to complete the agreed upon restoration.
GOING FORWARD
MassDEP's efforts will continue to provide technical outreach and assistance with a goal toward ensuring that the regulated community knows the rules and has an opportunity to "work out the bugs" of new requirements before MassDEP engages in inspections and enforcement. The environment is best served by a combination of efforts; working to ensure that all parties have the needed information on how to comply, followed by inspections and audits and enforcement for those who do not comply.
|
laws and rules
