The ability to enforce is a fundamental component to IC compliance. While some states lack specific authority, other states, including Arizona, Colorado, Connecticut, Indiana, Kansas, Massachusetts, New Jersey, North Carolina and Utah, among others, have at least some authority for enforcement. Administrative authority is frequently preferred over judicial authority because of the reduced cost and timeliness of resolving a violation directly with an authorized agency in comparison to the relatively high cost and delay that comes with resolution through court action (Asimow 2015). Government institutions use statutes, regulations, and ordinances to enforce ICs, while affected private parties may use common law or citizen suit provisions in existing laws (for example, Resource Conservation and Recovery Act, Clean Air Act, and the Comprehensive Environmental Response, Compensation and Liability Act). Common law suits may follow traditional legal principles of trespass, nuisance, and other claims.

Although some state environmental programs may lack specific authority for enforcement, they may exercise reopener clauses or rescind closure reports, no further action letters, covenants not to sue, and certificates of completion for sites where ICs are not implemented or maintained. For example, in ITRC’s survey of 27 states concerning IC programs, 22 respondents reported that they have injunctive authority to require an RP to cease activities and five reported that they have rescission authority.

This guidance assumes that a local or state agency retains administrative authority for the enforcement of ICs, and that such authority may be administered independent of costlier and lengthy judicial action.

A range of informal (voluntary compliance) and formal (involuntary compliance) enforcement tools are available and can be used to evaluate the most appropriate enforcement plan for a specific IC. These tools, along with careful site-specific IC planning, allow resolution of a violation with the least amount of adversarial attention. Effective IC enforcement planning also provides notice to an OP of the potential interested parties and consequences of a violation, thereby promoting compliance. IC enforcement should meet the following goals, which are consistent with the goals identified in air, waste and water enforcement programs:

• Encourage compliance with IC requirements while precluding continuing or repeat violations.
• Require remediation or other corrective action resulting from the impact of violations.
• Recover civil penalties, where appropriate, including amounts sufficient to remove any economic benefit of noncompliance with an IC.
• Deter violations and encouraging environmental stewardship.

Adequate notice of potential enforcement action should be given in the event of an IC violation. Standard form language is often employed to provide an effective method of notice. For example, “Failure of an owner or occupant to comply with any of the restrictions set forth herein shall be grounds to require that the owner or occupant modify or remove, or cause to be modified or removed, any improvements constructed in violation of that paragraph. Violation of this covenant shall also be grounds to file civil actions against the owner or occupant as provided by law.”

The UECA model also states that it “does not limit the regulatory authority of an agency under other [state or local] authorities”, (Commissioners 2003) thereby acknowledging the authority of government agencies to regulate the IC field. Subsection (b) of Section 11 recognizes that in many situations the statutes authorizing an environmental response project will provide authority for enforcement of an environmental covenant in addition to rights specified in the environmental covenant. The absence of model enforcement provisions in UECA leaves a void in a comprehensive strategy to promote compliance and deter violation of ICs in the context of a state or local regulatory framework.

Contributing further to enforcement difficulties, many states cannot adequately manage and monitor ICs. ITRC’s survey illustrates weaknesses in state monitoring and compliance efforts. Further, the data also amplifies the necessary relationship between adequate IC management tools and the foundation they provide to a meaningful IC enforcement program:

Absence of a Common Legal Framework

There is currently no model framework to guide a compliance and enforcement strategy for ICs. Federal environmental laws (for example, Resource Conservation and Recovery Act, Clean Water Act, and Clean Air Act) commonly include provisions concerning local and state delegation of authority, minimum program standards applicable to all delegated localities, and states, and enforcement authority (RCRA; CWA; and CAA). These laws provide an important legal foundation, guiding local and state programs in a collective effort to protect human health and the environment. These environmental laws also establish a baseline for national consistency.

In comparison, ICs have no common legal framework, federally established standards, enforcement authority or collective guidance on an enforcement process. ICs are most commonly tied to laws independently administered by state and local jurisdictions. Various government agencies or private parties capable of exercising authority over ICs create uncertainty and inconsistency in the IC legal framework. Some ICs may also be subject to multiple jurisdictions and multiple sets of legal principles where geographical site boundaries cross local or state jurisdictional boundaries.

Complex and Complicated Identification of Proper Parties

ICs are generally divided into four categories. Different IC categories may require different legal methods for enforcement. Identification of the types of ICs that will be used can determine what enforcement authority is most appropriate and who is responsible for enforcing the IC. IC identification also assists in determining who has the greatest legal interest and who may be in the best position to enforce the IC.

Who administers enforcement depends on the type of IC being enforced. For example, proprietary controls are considered private because they tend to affect a single parcel of property and are established by private agreement between the property owner and a second party who, in turn, can enforce the controls. Governmental controls impose restrictions on land and resource use pursuant to the authority of a government agency. Enforcement is administered by the government entity in these cases. For example, some federal landholding agencies, such as the Department of Defense, possess the authority to enforce ICs on their property. Enforcement and permit tools with IC components are legal tools, such as administrative orders, permits, Federal Facility Agreements (FFAs) and consent decrees that limit or require the performance of specific activities. These legal tools may be issued unilaterally or negotiated by regulatory and other authorized government agencies. Informational devices often provide notification of residual contamination in the form of a recorded notice to local communities, tourists, recreational users or other interested persons. Informational devices generally are not designed to serve as enforceable restrictions. (USEPA 2012a) an effort to identify the parties who can potentially enforce, IC instruments should identify all available enforcement authority and all parties able to exercise such authority. An identification of all parties, as a practical matter, lists all local, state, and tribal jurisdictions, as well as all known interested, and private parties. Although parties may change over time, full party identification at the time of IC development assists in understanding the various enforcement roles in the event of an IC violation. Understanding individual enforcement roles, in turn, helps to determine who is in the best position to enforce violations based on interests and authority, especially where there may be overlapping, similar or competing interests. Finally, the information also places the IC holder on notice of individual and collective enforcement interests, potentially providing a disincentive to an IC violation.

Although various jurisdictions (state, local, and private) may have legal authority to enforce a violation in some fashion, enforcement is commonly administered by a local or state environmental agency with administrative authority over an IC violation in a geographic or jurisdictional area. However, an assessment of each of these interests and their respective enforcement authorities should be completed to determine which interest holder has the most effective and appropriate enforcement tools. Further, the interest holder with the most effective enforcement authority may be able to satisfy the interests of all interested parties. This most effective approach can be determined by a simple exercise of communication and coordination with other potentially interested parties. Asserting an enforcement action under one primary government agency can achieve corrective action, promote enforcement efficiency, reduce legal confusion, and improve the enforcement process for all interested parties.

In many cases, the OP will be the IC holder. However, depending on the IC and circumstances of violation, the OP may be different than the IC holder. Other than the IC holder, OP may also include subsequent landowners, tenants, adjacent landowners, licensees, grantees or any other third party using the property with an IC or conducting activities that affect the IC.

Voluntary Compliance

Informal methods emphasize enforcement avoidance, as well as intervention to educate an OP on how to comply with IC requirements. Informal, voluntary compliance may require a range of options to achieve corrective action, including phones calls, site visits, dialogue with the OP and warning letters. Less adversarial, informal methods are generally appropriate for violations with little impact to the environment and when the OP does not have a significant history of noncompliance. Requesting voluntary compliance from an OP through early problem identification and informal communication is often an effective method to resolve IC violations quickly. Note that correspondence with an OP during the informal enforcement phase establishes an important evidentiary record for formal enforcement action when an OP continues to fail to comply with IC requirements.

Voluntary compliance typically works well if corrective action of the IC violation can be achieved in a short period of time (for instance 30 days) and does not present a significant risk to human health and the environment. Schedules or predetermined deadlines to achieve corrective action with verification of completion should be considered. Follow-up site visits and records of communication support potential transition to more formal, involuntary compliance should the OP resist corrective action of a violation.

Voluntary compliance action may take many forms, and can vary from state to state; examples include an Informal Correction Letter (ICL), a Request for Corrective (or Compliance) Action (RCA), a Deficiency Letter (DL), or an Inspection Report that identifies one or more issues concerning IC requirements. Voluntary compliance instruments serve a common purpose by notifying the OP of a violation. At a minimum, an OP needs: 1) a description of the facts and observations underlying each violation; 2) relevant IC requirements; 3) legal references where appropriate; 4) proposed corrective action; and 5) an opportunity to respond.

Materials that support an informal enforcement action can be provided to further support the action and to assist the OP in fully understanding the IC violation. These materials can include inspection reports, photographs, maps, and copies of relevant regulations or laws. After issuing an informal enforcement action, close tracking and follow-up of each corrective action requirement is considered to ensure an OP returns to compliance. Confirmation of an OP’s return to compliance may also include obtaining written or electronic confirmation from an OP, conducting a follow-up site visit or both. If an OP successfully completes a durable return to compliance, an acknowledgement letter (i.e. No Further Action) may be used to close the enforcement action.

In the event an OP fails to respond to voluntary compliance measures or fails in any requirement for corrective action within the specified schedule, escalation of the violation may be considered, including issuance of a Notice of Violation (NOV) and referral for formal enforcement.

Involuntary Compliance

Requiring involuntary compliance from an OP through formal enforcement is generally considered a final administrative measure to resolve IC violations. Formal enforcement is usually procedurally burdensome, legally intensive, and not as cost effective as informal compliance.

An NOV or similar formal notice is typically issued to an OP to inform them that the violation is ready to be referred for formal enforcement action. Formal action employs a system of escalating enforcement tools, including NOVs and administrative orders that may impose penalties and injunctive measures. NOVs notify an OP of an alleged IC violation and signify that the alleged noncompliance is ongoing, persistent, severe or of such significance that the violation is appropriate for further enforcement action. NOVs generally mark the transition from voluntary to involuntary compliance. If a violation is confirmed, the matter may be resolved by Consent Order or similar formal enforcement tools.

OPs failing to respond to informal enforcement measures, violations with significant environmental impact or OPs with a history of noncompliance may generally be considered for an NOV without the benefit of voluntary compliance measures. Formal administrative enforcement measures may include administrative orders, civil judicial action and, in the most serious cases, criminal action (California 2016) NOVs typically have high legal significance among local and state agencies, requiring specific statutory authority to be issued.

The most common elements of an NOV include:

• a description of the facts and observations underlying each violation
• relevant IC requirements
• legal references where appropriate
• proposed corrective action
• an opportunity to respond

Some states may require that a hearing be offered to the OP as part of an NOV to fully determine the factual basis of any IC violation.

As a general reference point, NOVs are appropriate for alleged violations that either impact or present an imminent and substantial threat to human health or the environment, present a violation of an essential element of an IC program, involve violations where corrective action cannot be achieved in a short period of time (for instance 30 days) or involve OPs with a significant record of noncompliance. Materials that support an NOV provide further support for the action and assists the OP in fully understanding the IC violation. These materials can include inspection reports, photographs, maps, and copies of relevant regulations or laws.

Managing Failure

When IC compliance failure occurs, enforcement can be strategically applied toward the RP’s return to compliance, deterrence of any further violation, and the protection of receptors from threat of release or exposure.

Assessing civil penalties in administrative actions requires specific statutory authority. Assessing appropriate civil penalties should be carefully evaluated and calculated on the basis of the gravity of the IC violation (the “gravity component”). The penalty may also reflect the removal of any economic benefit of noncompliance. Gravity based penalty analysis typically includes: 1) the severity of the violation(s); 2) the extent of any potential or actual environmental harm; 3) compliance history; 4) economic benefit of noncompliance; and 5) the ability to pay the penalty. An appropriately applied penalty should take away an RP’s incentive to violate and maintains an economic playing field for the regulated community that maintains compliance. Stated in different terms, in an effort to promote IC compliance, the cost of noncompliance should exceed the cost of compliance.

When evaluating the use of a penalty, a foundation of facts can inform the gravity-based method described above. As part of the investigation of an IC violation, some basic areas to assess include whether the IC violation: 1) caused actual or potential environmental harm; 2) is especially egregious or severe; 3) placed another person in imminent harm; 4) is contrary to the specific terms of an administrative order or judicial decree; 5) is part of a pattern of violations; 6) severely impacts an environmental media or resource; and 7) is the result of a pattern or practice that demonstrates the willful avoidance of regulatory requirements. (Virginia Department of Environmental Quality)

Penalty calculations should observe the interests of equity, deterrence, and fairness. As a result, a civil penalty is not appropriate in all cases. State enforcement programs commonly grant immunity from civil penalties for voluntarily disclosed environmental violations. Consistent with federal policy, many states exercise enforcement discretion to mitigate the gravity portion of a penalty for violations that are discovered pursuant to a voluntary assessment and that are voluntarily and promptly self-reported and corrected.(USEPA 2002) Finally, some states allow the amount of a civil penalty to be partially mitigated by a Supplemental Environmental Project (SEP). (Virginia Department of Environmental Quality)

Most state and federal environmental statutes include injunctive relief as a potential enforcement tool. While some statutes give guidance to the manner in which courts issue injunctions, some environmental statutes only mention injunctive relief without specific guidance on its employment.(Zwart 2006) Predating most core federal environmental statutes, injunctive relief was pursued under common law doctrines of nuisance and/or trespass for many years as a substitute to specific statutory authority. These common law doctrines provided authority for courts to issue orders requiring OPs to terminate the activity underlying the nuisance or trespass. A failure to terminate can result in contempt of the court’s order. Generally, courts determine whether an injunction is appropriate based on: 1) the likelihood of irreparable harm in the absence of the injunction; 2) whether the likelihood of harm is outweighed by the likelihood of harm to the OP if the injunction is granted; and 3) protection of the public’s interest in cessation of the OP’s actions.

Alternatively, corrective action is generally viewed as an administrative tool used by agency-level enforcement programs. Corrective action requires an OP to take specific action within a specific timeframe or refrain from taking certain actions. It is typically reserved for violations when no other adequate legal remedy exists. Corrective action may be useful in addressing an IC violation. For example, corrective action may require an OP to: a) obtain an IC permit; b) properly notify the public or a potential purchaser of an IC or to properly transfer an IC; c) remove or modify any improvement or construction in violation of a covenant or one that impairs or potentially impairs the performance of a remedy; or d) prohibit or further control an unanticipated use or activity on the property.

Appropriate use of corrective action as an enforcement tool necessitates that the action maximizes a benefit to the environment, is achievable by the OP and bears a reasonable relationship to the IC violation it is intended to remedy. (United States Court of Appeals 1987) The underlying goal of corrective action should be to restore and maintain the integrity of the IC or modify the IC if it is not protective.