Addressing Industrial Air Pollution in Kazakhstan

Chapter 3. Moving to a broader and more effective range of non-compliance responses

Abstract

In case of discharges by industrial operators above their emission limit value as set in the permit and project documentation, Kazakhstan’s primary response is to impose administrative penalties. This chapter examines the system for non-compliance and how it diverges from the experience of OECD member countries. It considers the full range of responses of an enforcement pyramid. It offers recommendations to transition from these highly discriminatory, contested and opaque non-compliance responses to a more modern, proportionate (risk-based) and collaborative system. It concludes with specific guidelines on how to adjust the legislative acts, the principles of regulations and the tools for enforcement in Kazakhstan.

3.1. Introduction

Environmental non-compliance response comprises any actions by the competent government authority alone or in co‑operation with other institutions to correct or halt behaviour that fails to comply with environmental regulatory requirements. Such responses may be designed to perform one or more functions: i) return the violator to compliance; ii) correct internal company management problems that may result (or have resulted) in negative environmental impacts; iii) impose a sanction to punish the violator while also deterring others; iv) remove the economic benefit of non-compliance; or v) correct environmental damages.

Non-compliance responses are commonly classified based on the different branches of law authorising each measure (i.e. the type of liability): administrative, civil, and criminal. A government agency applies administrative measures (“administrative enforcement”); the general aim is to restore compliance. Civil and criminal courts impose civil and criminal measures, respectively, and are sometimes referred to as judicial response. Civil enforcement generally addresses damage caused to persons or property. For example, civil judicial enforcement in the United States is intended to punish and deter and does not seek compensation for private parties. Criminal enforcement seeks penalties (that may include prison time for individuals) for egregious unlawful behaviour (OECD, 2009[1]).

3.2. Comparative analysis

3.2.1. Enforcement pyramid and the choice of response

In Kazakhstan

Kazakhstan almost exclusively applies administrative penalties to deal with violations and does not appear to consider use of any other measures. This contrasts with OECD member countries, which use an enforcement pyramid approach.

OECD member countries and the non-compliance enforcement pyramid

In most EU/OECD member countries (OECD, 2009[1]), the response to non-compliance is based on a so-called enforcement pyramid. This includes administrative and criminal measures, complemented by civil measures. The hierarchy of non-compliance responses offers a good way of achieving an optimum mix of deterrence, persuasion and coercion. Once an offence is detected, the following order of response may be used: informal warnings and directions for corrective actions; administrative notices and penalties; or criminal enforcement with prosecution and fines determined by courts. Annex B gives a comprehensive overview for OECD member countries of direct and indirect means of interventions and enabling approaches for compliance.

Effective application of the enforcement pyramid depends on two assumptions. First, it presumes that enforcement authorities are prepared to escalate sanctions where soft restorative action fails to achieve compliance. Second, it presumes that penalties at the top of the pyramid are sufficiently serious and effective to deter the possible offender.

Administrative enforcement is almost always an environmental authority’s first choice response.

In addition, enforcement competent authorities consider the following when choosing the type of enforcement instrument:

• Cost: administrative proceedings are generally less taxing on enforcement resources in terms of time, money and personnel.

• Resistance: criminal cases evoke much stronger resistance from the regulated community than administrative ones.

• Control: enforcement authorities have much more control over administrative proceedings than over criminal ones.

Making enforcement more proportionate to non-compliance is thus the pragmatic foundation of the enforcement system in the OECD. More emphasis on administrative versus criminal response to non-compliance in several countries (e.g. in the United Kingdom and France) allows the decriminalisation of less severe violations and makes enforcement more expedient and efficient. Another aspect of modern enforcement by OECD members consists of taking more account of an offender’s economic benefit from non-compliance. Economic methods to calculate and extract this benefit via monetary penalties are used in the United States and, increasingly, in the United Kingdom and the Netherlands.

Competent authorities have enforcement policies or guidelines describing how to treat offences/violations and what actions to take. Examples include the Environment Agency in England’s Enforcement and Sanctions Policy and Guidelines, and the US Environmental Protection Agency’s Enforcement Response Policies. These provide generic principles for the approach to enforcement and specific guidelines for applying sanctions, according to legislative requirements. In addition, the Environment Agency in England uses a compliance-enforcement model to support decision making, based on the level of observed compliance (see Figure 3.1).

Figure 3.1. Environment Agency (England) compliance enforcement model

Source: (Foreman, J. (ed.), 2018[2]).

More than 70% of violations in England and Wales are addressed through persuasion. Less than 20% are addressed by administrative enforcement notice (the remaining cases are referred for prosecution) (OECD, 2009[1]).

About 80% of all violations in the Netherlands are corrected without use of any formal actions by the competent authority; fines are imposed only in a small fraction of cases. This is the case as well in most countries with a well-developed environmental regime, especially where most regulated organisations are generally in compliance (OECD, 2009[1]).

3.2.2. Administrative enforcement

In Kazakhstan

Monetary penalties (fines) are the most widespread administrative environmental enforcement instrument used, in common with most countries in Easter Europe, Caucasus and Central Asia (EECCA). Current practice is to default to monetary penalties (i.e. fines) for all non-compliances, regardless of cause and effect.

Kazakhstan does not appear to use any non-repressive measures such as informal or formal warnings, cautions and notices. All identified violations are treated with sanctions, normally financial penalties. The CERC has even set targets for revenue collection through penalties.

The authorities do not apply rules-based principles and methods commonly used in OECD member countries. As a result, they are not seen to operate in a fair, consistent or transparent way.

OECD member countries

Administrative measures are generally the preferred tool to enforce environmental legislation for a number of reasons (OECD, 2009[1]). Administrative enforcement is faster and cheaper than going through the courts. In many countries, administrative enforcement offers the government a wider range of instruments to deal with violations. Administrative enforcement measures (i.e. responses) can be classed as either non-repressive or repressive (i.e. with sanctions).

In Japan, administrative actions are designed to guide or order operators to comply with the requirements, but not to impose penalties. Competent local governments promote regulatory compliance by businesses mainly through inspections and by issuing administrative guidance based on inspection results. Most businesses take steps to comply with the guidance: the intervention of the authorities is already considered as a sanction. The potential loss of reputation for Japanese companies is likely a more important deterrent than it would be for companies in other countries. Stricter enforcement measures are imposed only if the emission/effluent limits are exceeded significantly or repeatedly.

Upon detection of a violation in the Netherlands, the competent authority would most often issue an informal verbal warning. This can be followed by more informal contacts between the offender and the competent authority. A formal warning, if needed, is then issued that prescribes corrective actions and setting a time limit to correct the violation. Sanctions are issued in only about 7% of cases. They are not imposed if the violation has been corrected in a timely manner. Similarly, they are not imposed if the act was not deliberate, an isolated incident, of limited extent and impact, or has been committed by an operator with an otherwise good compliance record.

In Finland, if a violation is discovered, the operator is allowed, sometimes during the inspection itself, to plan corrective actions to return to compliance. If the operator fails to present a compliance plan or the competent authority judges its actions are inadequate, then the latter issues a compliance notice.

In the United States, most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. These almost always involve payment of a penalty. About 75% of administrative cases and 90% of civil judicial cases are settled.

In the United Kingdom, enforcement undertakings are promises by the violator to the regulator to take specific compliance actions as an alternative to prosecution. A period of negotiation would take place where the competent authority either accepts or rejects the proposed actions. If the proposal is rejected, the authority may choose any sanction available for the original violation. If the proposal is accepted, the enforcement undertakings are formally agreed and monitored by a regulator. The company would be immune from any sanction for that particular offence, unless it fails to comply with the undertakings.

3.2.3. Penalty assessment

In Kazakhstan

In the Administrative Offence Code, environmental penalties are based on a volume of over-limit emissions multiplied by a rate. For large enterprises, the multiplier is the rate in the Tax Code for the relevant pollutant and form of pollution. In the case of small and medium-sized enterprises (SMEs), the multiplier is the monthly calculation index (MCI) published by the government from time to time.

There are two kinds of environmental penalty discrimination. First, large enterprises pay higher penalties per unit pollution since most of their Tax Code rates are higher than the MCI for SMEs. This already-higher payment amount is increased a further ten times for all cases of over-limit emissions by large enterprises. Second, oil and gas companies pay far higher penalties per unit of emissions than other large enterprises. The Tax Code rates for gas flaring are much higher than those for the same volume of emissions of a given pollutant from other stationary sources (e.g. power, steel, mining, coal).

Kazakhstan recognises it must end discrimination in environmental penalties if it wishes to move towards an OECD paradigm. In 2018, the Concept on Accompanying Legislation (and Concept for the revised Environmental Code) acknowledged the discrimination and called for its elimination. It explicitly recognised that, for the same amount of pollutants, punishment can vary from thousands of tenge to millions of US dollars, depending on the business entity. Such a wide gap in punishment for the same violation is not consistent with the rule of law, and the principle of fair and equal punishment for the same damage or public danger.

OECD member countries

The penalty system in the OECD entails some degree of discretion from the competent authorities. However, this discretion is not unlimited. And what OECD members have in common are the principles and components of designing on applying environmental penalties/fines. Authorities can impose a range of minimum and maximum amounts for each violation. These are typically charged per day, although sometimes per incident. For example, Dutch competent authorities usually have guidance documents defining the types of violation, penalty rates per day and a maximum fine per violation (e.g. EUR 50 000 in the province of Groningen). In Texas and other US states, failure to comply with notification and permitting provisions entails maximum daily fines in the range of USD 10 000 per day.

1. To be an effective enforcement instrument, administrative penalties/fines are designed with the following main principles:

• Deter future non-compliance.

• Eliminate any financial gain or benefit from non-compliance.

• Stay proportionate to the nature of the offence and the harm caused.

• Be responsive and consider what is appropriate for the particular offender and regulatory issue.

The first goal of a penalty is to deter people from violating the law. Specifically, the penalty should persuade the violator to take precautions against falling into non-compliance again (specific deterrence). It should also dissuade others from violating the law (general deterrence). Successful deterrence is important because it provides the best protection for the environment. In addition, it reduces the resources necessary to administer the laws by addressing non-compliance before it occurs. In some countries, such as Norway, the threat of so-called “coercive fines” may be used. In these cases, the fine is imposed even before a violation is identified. This is designed as a preventive instrument to achieve compliance with the requirements (OECD, 2012[3]).

Measuring environmental harm is inherently difficult. In practice, different measurement techniques can produce different results. This is one of the reasons why most environmental enforcement agencies do not make economic efficiency the goal of their activities. Instead, they try to base the fines on gain to the violator rather than on the harm from the offence (OECD, 2012[3]).

Consistency, fairness and flexibility are guiding principles in OECD jurisdictions when implementing penalties and fines. Otherwise, regulated entities may perceive the fines as arbitrary. Appeals against those penalties would consume agency resources and slow down the resolution of environmental problems caused by the violations. A fair system for calculating penalties must also have enough flexibility to adjust for legitimate differences between similar violations. Flexibility should account for at least five relevant differences between enforcement cases. First, it should consider the degree of wilfulness and/or negligence of the offender. Second, it should consider the history of non-compliance. Third, it should consider the ability to pay. This, in turn, includes whether a penalty could result in plant closure, bankruptcy or other extreme financial burden, and adjustments/alternatives to the originally chosen penalty. Fourth, it should consider whether there is an important public interest in allowing the firm to continue in business, such as local employment. Fifth, it should consider the degree of co‑operation/non-cooperation with the enforcement agency. Other factors specific to the violator or the case may also inform a decision.

As good practices, OECD member countries establish and disseminate the defined and transparent process to make penalty decisions. They then document how penalties have been developed and applied. These are the following steps:

• Calculate the benefit component using a model or a simple discount rate method. Penalties should remove any economic benefit resulting from a failure to comply with the law. This should include both costs avoided and any competitive advantage gained from non-compliance. This issue is well-covered in sections 3.2, 3.3 of the OECD report (2009[4]).

• Calculate the seriousness (gravity) component (e.g. using regulation-specific tables or matrices). A proportion of the penalty should reflect the seriousness or gravity of the violation. This will include a reflection of the harm to the environment (if caused), potential risk to the environment and the importance of legal requirements. This is amply covered in Chapter 4 of the OECD guidance on fines (OECD, 2009[4]).

• Apply appropriate adjustment factors to the gravity component. The competent authority should describe the facts and reasons, which support such adjustments (e.g. multipliers). These will depend on pertinence of various factors (e.g. the public interest and other factors such as seriousness of the offence, repetition or failure to comply with a notice).

• Add up the benefit and gravity components, and apply “the ability to pay” factor, if appropriate. The following options consider the ability to pay:

  • Delayed payment schedule: such a schedule might even be contingent upon an increase in sales or some other indicator of improved business.

  • Non-monetary alternatives: company officials may be compelled, for example, to participate in environmental awareness campaigns in the media.

  • Penalty reduction as a last recourse: if this approach is necessary, the enforcement agency’s conclusion as to the size of the necessary reduction should be justified and communicated.

• Record and measure outcomes (evaluate effectiveness). The competent authority should maintain records on its use of administrative fines. The records should be used for reporting, performance assessment and public disclosure. Public disclosure of enforcement actions accomplishes two goals. First, it informs the public that the enforcement agency is responding to non-compliance. Second, it demonstrates to the regulated community the agency’s commitment to enforcing compliance.

In addition, to ensure the effectiveness of penalties, policy makers should consider the likelihood that an offender will be caught and punished as a result of other compliance assurance and enforcement activities. A penalty or other sanction cannot be applied unless the offence is first detected, for example, as a result of monitoring, checking and reporting.

3.2.4. Civil judicial enforcement

In Kazakhstan

Kazakhstan citizens have the right to bring lawsuits for individual or collective private damages for harm to their health or property under the Civil Code.

OECD member countries

Traditional civil liability is aimed at the compensation of a private party for the damages or injuries caused to persons or property. Civil suits brought by private parties are an important enforcement tool in OECD-reviewed countries (OECD, 2009[1]).

In OECD member countries, citizens can bring lawsuits to seek damages compensation for harm to their property or health. However, as custodians of the public good with an authority to protect public natural resources, they typically cannot file a lawsuit on behalf of the public (see section 3.2.6 on citizen enforcement).

3.2.5. Criminal enforcement

In Kazakhstan

Kazakhstan law provides for criminal liability for environmental violations. Through amendments to the Criminal Code1 in 2014, material damage measured by civil monetary damages above a certain threshold became an element for establishing the crimes of pollution to the air, water or land. This created anxiety among investors, given Kazakhstan’s history of bringing criminal actions against senior personnel of investment projects for tax, customs and other regulatory violations. Investors consider these to be administrative or civil concerns in OECD member countries. In view of the well-known formalistic approach of Kazakhstan’s law enforcement officers, investors feared that cases in which the amount of monetary damages simply exceeded a relatively low threshold would qualify as crimes or potential crimes (American Chamber of Commerce in Kazakhstan, 2018[5]).

Foreign investors often cite the criminalisation of civil and administrative law matters in Kazakhstan as detrimental to the country’s investment climate. They argue it creates a risk factor that dissuades new foreign investment. First President Nazarbayev, in addition to requiring adoption of OECD standards, called for the decriminalisation of “economic crimes of low societal danger” in his address to the people of Kazakhstan on 31 January 2017 (Nazarbayev, 2017[6]).

Kazakhstan law also requires criminal intent for liability. However, in practice, defence attorneys have observed that prosecutors make little effort to prove criminal intent in criminal cases involving actions brought against employees of foreign-owned companies for regulatory violations. Instead, they typically treat establishment of the fault element as an assumption based on the fact of the violation. The courts often accept this tendency and do not demand evidence of the defendant’s criminal intent (American Chamber of Commerce in Kazakhstan, 2018[5]).

OECD member countries

Criminal enforcement is usually the action of last resort, taken only in response to serious cases of wilful or negligent unlawful behaviour. It may also be used where administrative law has not been sufficient to ensure compliance. Criminal offences are generally related to serious damage to, or endangerment of, human health or the environment. They can also be “technical”, such as operation without a permit.

Criminal sanctions represent both a punishment and a deterrence, as they have a major reputational impact on the convicted party. Consequently, and understandably, the burden of proof (i.e. the level of evidence) for such criminal cases is much heavier than for any with other enforcement approaches.

In the United States, for environmental criminal actions to be enforced under the Clean Air Act (CAA) or the Clean Water Act (CWA), the defendant would need to have violated legislation intentionally. The potential for criminal liability would exist if there is an indication that a person released air pollutants, for instance, not for safety reasons, but rather for illegal or pecuniary motivations. To establish a criminal liability under the US CWA and CAA, a “knowing” violation is required.2 Criminal liability arises from the defendant’s state of mind in causing the violation. The establishment of “knowing,” or criminal intent, would require evidence of egregious, self-serving conduct, or operations without a permit. Typically, these operations are for personal or corporate gain or to avoid expenses, and accompanied by falsification of information or other fraudulent acts.

Box 3.1 provides typical criteria and scenarios for criminal investigations of environmental violations. Initiation of a criminal investigation would be unlikely if the polluter immediately notified authorities about the violation. Environmental criminal law enforcement authorities, in the absence of an indication or lead suggesting wrongdoing, will not typically investigate merely to search for intentional or criminally negligent malfeasance. They may do so, however, if there is a high level of harm (e.g. an oil spill, a death at a chemical plant). For example, criminal investigations are rare or non-existent for emergency gas flaring either by the federal authorities under the CAA or by state authorities under state laws. There might have been some cases of civil enforcement, however.

Box 3.1. Environmental criminal investigation in the United States: Common violation types

Typical violations that result in investigations may involve, but are not limited to:

• illegal disposal of hazardous waste

• export of hazardous waste without the permission of the receiving country

• illegal discharge of pollutants to a water of the United States

• removal and disposal of regulated asbestos containing materials in a manner inconsistent with the law and regulations

• illegal importation of certain restricted or regulated chemicals into the United States

• tampering with a drinking water supply

• mail fraud/wire fraud

• conspiracy

• money laundering relating to environmental criminal activities.

Source: (UN EPA, 2018[7]).

In OECD member countries, a competent authority, or the police, will usually initiate criminal environmental enforcement by referring the case to a public prosecutor. In England and Wales (but not in Scotland and Northern Ireland), the Environment Agency or a local authority can prosecute criminal cases directly. Criminal prosecution is often launched in parallel with administrative actions. Some environmental authorities (e.g. certain regional departments for industry, research and environment in France) have policies to issue statements of criminal offence in every case of non-compliance with a compliance notice. Others refer only the most important cases to the prosecutor’s office.

In England, the Environment Agency’s Enforcement and Sanctions Policy sets out grounds for taking criminal enforcement action. In the United Kingdom, there is a clear separation of responsibility for criminal enforcement/prosecution and the resultant criminal sanctions (e.g. fines and sentences), which are imposed by law courts. The environmental authorities contribute to Sentencing Guidance for judges on how to approach sentencing for environmental offences. This Guidance is not prescriptive, but rather indicates the factors to be considered. They include the following:

• liability related criteria (culpability of the offender)

• the potential risk brought about by an offence

• the offender’s ability to pay (facility closure should be avoided where possible)

• the overall deterrence effect of the sentence (fines on companies should be large enough to make an impact also on shareholders)

• the offender’s co‑operativeness

• the prosecution costs.

In the Netherlands, France and Finland, criminal and administrative and enforcement go in parallel. The environmental authorities refer potential criminal cases to the police or a public prosecutor and continue administrative proceedings. They therefore have little control over the prosecutor’s decision on whether to pursue a case and bring it to a criminal court.

3.2.6. Citizen enforcement

In Kazakhstan

The public has the right to participate in decision-making processes and be informed of their consequences. To that end, they have access to permit applications, permits and the results of the monitoring of releases. This is in line with the United Nations Economic Commission for Europe Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, to which Kazakhstan is a signatory.

More recently, the Committee on Environmental Regulation and Control has said it may include in the new Environmental Code a right of citizens to bring lawsuits against companies for environmental damage in the public interest.

OECD member countries

Citizen enforcement usually means the pressure exerted by citizens on government agencies, through complaints or in court, to enforce regulatory requirements. It does not cover civil liability cases when individuals or groups of citizens are direct victims of pollution (OECD, 2009[1]).

There are numerous benefits to enabling the public to participate in environmental enforcement. First, local citizens directly affected by a violation are often better positioned to detect and evaluate the impact of the violation on the environment and their community. Second, citizen enforcement saves resources for enforcement authorities and reinforces the government’s position against the sometimes-powerful political influence of offenders. Citizens/groups/non-governmental organisations (NGOs) can lobby for enforcement actions, or use civil courts to appeal decisions to grant permission to operate, to not enforce laws, or not to prosecute.

• In the United States, statutes give citizens the right to bring actions to compel the state to enforce its own environmental damages laws. Other laws empower citizens to bring damages actions for harm to their property and health. However, the environmental damages laws do not typically empower citizens’ groups to stand in the shoes of the state and bring a natural resources damages claim against polluters to protect the country’s environment.

• The Environmental Agency in England has been successful in turning around adverse publicity for high risk/profile sites. It has put in place a recognised process that brings industry and local communities/citizens together, encouraging companies to take the lead role rather than the Agency. There is also potential to encourage citizen “monitoring” where regulatory resources are limited. Citizens, for example, can use a hotline to report pollution incidents. Mobile telephone apps are also being developed for reporting environmental problems such as incidences of invasive species. Box 3.2 provides more details.

Some countries have given opportunities for citizens to intervene in environmental enforcement. For example, in the Netherlands, NGOs on behalf of the public, as well as citizens, can take actions if competent authorities do not adequately enforce environmental requirements. They can petition the authority and, if that is not enough, can file a case against the authority in an administrative court. In the past, the Dutch environment ministry covered the costs of legal environmental advisors to citizens and local NGOs employed by “social law firms”. This is no longer the case. A competent authority’s “non-enforcement” decisions can also be appealed in an administrative court, and in some countries through “judicial review”. Dutch NGOs such as Natuur en Milieu also put pressure on competent authorities through direct mailings encouraging them to do a better enforcement job. For criminal enforcement, citizens can contact the police, or an NGO can go directly to a public prosecutor. If a prosecutor does not pursue the case, a suit against the violator can be filed in a criminal court. In some cases, NGOs pursue administrative and criminal routes at the same time.

Box 3.2. Examples of public consultation programmes and tools

Environment Agency (England) good practice – Statement on Public Participation

Public participation helps the Agency make better decisions. It can make use of the expertise of others and make sure the Agency has considered all the environmental risks.

Consultation is built into the environmental permitting process including on:

• development of standard rules, including risk assessments

• applications for all bespoke permits and standard permits for installations

• applications for substantial change of bespoke permits and mining waste facilities

• applications to vary permits, including for “sites of high public interest”.

Consultations are publicised on line, while emails are sent to organisations with a known interest.

There is enhanced consultation on “Sites with High Public Interest”. This includes direct engagement with local communities – individuals and groups – on draft permits and decision documents.

Decision documents provide a transparent means to communicate the rationale behind decisions to interested parties. In high-profile cases, they allow input to the decision-making process.

Environment Agency (England) good practice – Building Trust with Communities Programme

The Environment Agency works with the public, community groups and other organisations to help solve environmental problems and build trust in the services it provides using a six-step approach:

• Step 1 Understanding the community – how it works.

• Step 2 Why work with the community?

• Step 3 Understanding the community – its people.

• Step 4 Agreeing the best way of working.

• Step 5 Starting work and checking progress.

• Step 6 Reviewing work – lessons learned and sharing experiences.

Source: Author’s elaboration based on interviews and desk research.

3.3. Proposed recommendations

3.3.1. Fully use compliance assurance and approaches of an enforcement pyramid

Kazakhstan should change from an enforcement-led system, with overreliance on administrative penalties and fault-based damages to one that delivers effective, risk-based, environmental protection. This approach should include all elements of compliance assurance including:

• compliance promotion – educating and enabling good practice for effective management of compliance, including provision of clear and accessible guidance on complying with legal requirements

• compliance monitoring and assessment, including risk appraisal and a range of compliance checking tools and approaches such as state monitoring and inspection, audits, assurance schemes, recognition of management systems and independent monitoring and verification of performance

• citizen participation in monitoring and reporting of environmental performance

• use of an enforcement pyramid to help choose appropriate responses and interventions as set out in the OECD guidance report (OECD, 2009[1]).

Ensuring a verifiable approach to state monitoring and inspection is a prerequisite for more effective enforcement. This point is further developed in the ways forward, particularly the role of data availability, quality, monitoring and evaluation.

To better balance the mix of “traditional” compliance and enforcement measures with new interventions, the Ministry of Energy should build on the work of international networks that promote implementation and enforcement of environmental laws.

• The European Union Network for the Implementation and Enforcement of Environmental Law, for example, has developed comprehensive toolkits and methodologies. These include choosing Appropriate Interventions Guidance (e.g. Logic Modelling3) (IMPEL, 2008[8]). This methodology has two helpful features: a list or typology of the different types of intervention and common practice; and a step-by-step method for evaluating and choosing the right mix of interventions. It has also developed the Easytools/IRAM (risk assessment methodology);4 Doing the Right Thing (inspection planning);5 and Recommended Minimum Criteria for Environmental Inspections.6

3.3.2. Reform the system for penalties/fines following a min-max amount per day, non-discriminatory model with a gravity component

Kazakhstan should put in place a new system that would include several new characteristics in line with a modern OECD paradigm.

Non-discrimination. The same rules and penalty levels should apply to all forms of emissions of pollutants, regardless of industry, the size of enterprise or the ownership. On this basis, Kazakhstan should reform its highly punitive system of Associated Petroleum Gas flaring payments (penalties and damages). Since administrative penalties are based on the tax rates, administrative penalties for gas flaring are higher than those for emissions of the same pollutants from other stationary sources.

Distinct and separate methodology for determining penalties/fines following a min-max amount per day model. The penalties calculation should not be linked to rates in the Tax Code or an index. It should not be based on a volume times rate system, but rather limited to a maximum penalty per day, or per incident, as in OECD member countries. The maximum per-day penalty for breach of emissions limits should not exceed the maximum per-day or per incident penalty levels for analogous emissions in OECD member countries. Authorities should not have discretion to impose penalties higher than the maximum per-day limits set forth in the pre-established range.

Gravity component within the range of the maximum amount per day. Introduction of a gravity component and use of analytical tools to estimate the financial gains from non-compliance could also be considered. Since 1984, the BEN model developed by the US EPA calculates economic benefits enjoyed by a facility during its time of non-compliance. The model can estimate savings from deferred capital investments in pollution control equipment, deferred one-time expenditures (such as establishing self-monitoring systems), and reduced operation and maintenance costs of environmental equipment (US EPA, 2019[9]).

Consensus with key stakeholders. Stakeholders should help develop the approach to set penalties. Relevant parties include key government ministries (justice, finance, energy/environment), regulatory/enforcement agencies, business associations, companies and other interested parties, including citizens and NGOs.

National-level enforcement policies. Competent authorities in the oblast should not have the discretion to impose penalties higher than the maximum per-day limit. This will ensure nationwide consistency and transparency of enforcement decisions.

Adequate flexibility. Policies should allow competent enforcement authorities to account for unique circumstances of each enforcement case. Administrative fines for environmental offences can be adjusted for the violator’s intent, degree of co‑operation with the enforcement agency, compliance record and ability to pay. However, this adjustment should not exceed half of the fine’s gravity component (which, unlike the economic benefit component, is the “pure” penalty). Any such adjustment should be properly documented. At the same time, options may be available for partial replacement of monetary payments of fines with alternative environmentally beneficial expenditures (OECD, 2009[1]).

Options for alternative environmentally beneficial expenditures. Alternatives for partial replacement of monetary payments of fines should be envisaged. The enforcement agency may have administrative discretion to replace part of an assessed monetary penalty with an environmentally beneficial expenditure by the offender. In several OECD member countries, such as the United States, the regulated community has been receptive to this practice. They believe it helps an offender repair its public image tarnished by the violation. This instrument is different from non-monetary alternatives or penalty reductions based on inability to pay (OECD, 2009[4]). Under the US EPA’s Supplemental Environmental Projects (SEP) Policy (1998), an offender may volunteer to undertake an environmentally beneficial project related to the violation. In return, the offender will receive a reduced penalty (a ratio may be USD 3.00 in SEP spending to USD 1.00 in penalty reduction). For example, a SEP might include provision of training or technical support to other members of the regulated community to achieve, or go beyond, compliance with applicable environmental requirements.

3.3.3. Delink criminal liability from civil monetary damages

Kazakhstan should delink criminal liability from civil monetary damages to improve the investment climate and align Kazakhstan environmental criminal law with OECD standards. A criminal investigation should only be initiated where there is an indication that a person intentionally and deceitfully violated a criminal statute, exposing the population and environment to harm.

Criminal enforcement should therefore be covered by an enforcement policy. This policy sets out the grounds for criminal offences and a transparent process for state authorities to determine whether to pursue criminal proceedings. Such a policy (and process) can be used to determine whether to take administrative, civil or criminal sanctions. These decisions would be based on recognised criteria such as the degree of environmental damage, seriousness of violations, and the intent and attitude of the offender.

A clear enforcement policy and robust process to determine criminal liability and sanctions should help ensure that certain practices are not possible. These include setting fault-based damages and automatic criminal sanctions – for example, when exceeding emission limits alone with no other factors considered such as environmental harm, negligence and deliberate illegal actions.

The issue of proving criminal intent and whether prosecutors and judges take this into account in criminal proceedings (court cases) is a judicial rather than environmental matter. Specifically, it is for the judicial system and process, including relevant legal codes. However, environmental authorities can provide guidance/criteria for courts/judges to help with sentencing. This guidance would be based on the environmental and regulatory seriousness and consequences of offences (as the Environment Agency does in the United Kingdom).

In practical terms, the Prosecutor General and the Minister of Energy should develop a joint order. This would set forth detailed criteria on what types of evidence suggest the presence of intent and what types of events clearly exclude intent. See section 3.2.5 for additional examples. The enforcement policy should clarify the applications of sanctions and whether administrative, civil or criminal responses are appropriate. Having a separate system to classify incidents based on the significance of the damage to the environment would also be essential. In the United Kingdom, there are four levels of incident. Criminal proceedings would only be taken where incidents are level 1 or 2 involving significant risk/harm.

Specific guidance for the main industries should subsequently be developed. A BAT document for oil and gas production could provide more guidelines to set out the circumstances in which gas flaring is a legitimate technique. For example, it could be used because of the functioning of automatic pressure safety valves or based on the operator’s decision to prevent increased pressure for greater safety. Such guidance would help in two ways. First, it would allow appropriate permit conditions (for gas flaring) to be set. Second, it would set out the circumstances in which flaring is justified. This would help prevent unnecessary “technical” violations and enforcement sanctions.

Importantly, however, notification should not eliminate environmental liability. If the environment has been polluted and harmed, an offender’s notification can be a mitigating factor indicating good intent and attitude. However, if an incident has caused major and/or irreversible damage to natural resources or endangers loss of human life, the relevant operator should still be liable for criminal sanctions, as well as civil and administrative corrective actions. It should also be liable for the costs of restoration and compensation for the actual damage caused. The situation might differ if actions have also been taken to prevent or mitigate harm. Such actions could include good management systems to prevent, contain or mitigate an accident or incident.

Further to this, the environmental enforcement policy document should also reflect the evidence required in support of criminal investigations and proceedings. For example, such evidence could include a generally applied threshold and process, which are in most cases not specific to environmental crimes. Clear sentencing guidelines for environmental damages (e.g. provided by the Prosecutor General or the Ministry of Energy) could also improve court decisions and interpretations of all the above cases. An appeals process could address issues of Kazakhstani officers not following guidance on the application of penalties and sanctions. This would be part of an enforcement policy.

3.3.4. Improve the effectiveness of penalties

Information can help policy makers and implementing authorities determine the effectiveness and efficiency of using fines. For example, data and information on fines can be used to identify repeated non-compliance by already sanctioned offenders. This, in turn, can help policy makers consider the different factors causing/contributing to non-compliance and, hence, determine appropriate penalties.

In practice, Kazakhstan would thus need to do the following:

• Improve the collection of administrative fines for environmental offences and make the fines a more credible deterrent against non-compliance.

• Upgrade the system of management, reporting and public disclosure of data and information on offences and the application of penalties to analyse the effectiveness of the enforcement response. The section on data management in the conclusions and ways forward in this report substantiate this further.

• Disseminate information about significant penalties to the regulated community and the general public to reinforce deterrence against future non-compliance.

3.3.5. Adjust legislative acts, principles and tools for enforcement

Principles of good regulation

Competent environmental authorities in Kazakhstan should ensure that all the legislative acts, principles, structures, processes and tools underpinning the Environment Code, apply methodological and management guidance. This guidance was set forth by the OECD in its report on Determination and Application of Administrative Fines for Environmental Offences: Guidance for Environmental Enforcement Authorities in EECCA Countries (OECD, 2009[4]). Box 3.3 provides a summary.

Box 3.3. OECD guidance for determining and applying environmental penalties (fines)

• Ensure that administrative fines are applied to legal entities such as companies and their legal owners/operators (juridical persons).

• Identify and obtain the consensus of key stakeholders. These include relevant government ministries (justice, finance, energy/environment), regulatory/enforcement agencies, business associations, companies and other interested parties such as citizens and non-governmental organisations.

• Ensure that legal requirements and methodologies for determining and applying environmental penalties account for economic benefits of non-compliance and the seriousness of an offence in the calculation of administrative fines.

• Dissociate the part of a fine reflecting the seriousness of the offence from the assessment of civil liability for environmental damage and the calculation of pollution charges.

• Extend the time limits for the imposition of the fines by competent authorities to allow for adequate evaluation of the economic and gravity components of a fine.

• Establish national-level enforcement policies to ensure nationwide consistency and transparency of enforcement decisions, including the imposition of administrative fines.

• Allow adequate flexibility for competent enforcement authorities to account for unique circumstances of each enforcement case, taking into account the factors set out in OECD guidance (or reference section of report).

• Provide options for partial replacement of monetary payments of fines with alternative environmentally beneficial expenditures.

• Take measures to improve the collection of administrative fines for environmental offences. Competent authorities (environmental enforcement agencies or other bodies) should use more actively the payment enforcement means at their disposal and the recourse to courts to increase the collection rates beyond 90% and make the fines a more credible deterrent against non-compliance.

• Upgrade the system of management, reporting and public disclosure of information on the application of non-criminal monetary penalties. Competent authorities should improve the management of data on offences and respective administrative fines to make it possible to analyse the effectiveness of the enforcement response.

• Disseminate information about significant penalties to the regulated community and the general public to amplify the deterrence against future non-compliance.

Source: (OECD, 2009[4]).

In line with the Recommendation of the Council on Regulatory Policy and Governance (OECD, 2012[10]), Kazakhstan should continue to implement principles of good environmental regulation (e.g. led by results and evidence, proportionate, consistent, transparent and accountable). The United Kingdom provides useful guidelines (UK Better Regulation Task Force, 1997[11]). In addition, the Netherlands has produced the “Table of Eleven”. This aims at aiding the formulation of policies with a high compliance factor (see Box 3.4), which can serve as a checklist for all stages of policy design, implementation and evaluation.

Box 3.4. The Netherlands Table of Eleven: Definition of key factors of compliance

Factors of voluntary compliance and the influence of compliance promotion

1. Knowledge of rules – familiarity of the regulated community with the regulation and the clarity of requirements.

2. Cost-benefit considerations – advantages and disadvantages of compliance in terms of time, money and effort.

3. Level of acceptance – the extent to which policy and regulations are (generally) accepted by regulated entities.

4. Loyalty and obedience – innate willingness of regulated entities to comply with laws and regulations.

5. Informal monitoring – possibility of detection and disapproval of non-compliance by non-government actors.

Monitoring dimensions – the influence of compliance monitoring

6. Informal report probability – possibility that an offence is reported by non-government actors (whistle blowing).

7. Monitoring probability – likelihood of being subject to inspection by competent authorities.

8. Detection probability – possibility of detection of an offence by competent authorities.

9. Selectivity – chance of inspection as a result of risk-based targeting of firms, persons or areas.

Sanctions dimensions – the influence of enforcement

10. Sanction probability – possibility of a sanction being imposed if an offence has been detected.

11. Sanction severity – stringency and type of a sanction and adverse effects associated with it.

Source: (van der Schraaf and Roessen, 2004[12]).

Risk management and compliance assurance

Kazakhstan should also recognise and learn from OECD and EU good practice in areas related to sector strategies for risk assessment, integrated and simplified permitting, and enforcement policy.

With respect to sector strategies, the Environment Agency in England initially established strategies for sectors subject to environmental permitting, but now includes all the players within a sector. The plans focus on the most significant risks and impacts of the sector to the environment. They set out performance targets agreed with the industry to improve compliance and meet additional, voluntary goals that go beyond legal and regulatory requirements (Foreman, J. (ed.), 2018[2]).

The move from command and control to risk management and compliance assurance is clearly visible in all OECD member countries. This is occurring because compliance promotion is an efficient approach to achieving compliance for both businesses receiving assistance and incentives, and for regulators that can save resources on enforcement. As part of this initiative, the Environment Agency (England) has also developed standard rules (conditions) for permits based on generic risk assessments for certain sectors. This enables a simplified permitting process for sectors, which are either low risk or homogenous in nature. Permit applications can be made on line and, subject to local checks, can be determined and issued electronically. This process is managed by a National Permitting Centre.

Risk-based targeting of compliance monitoring allows competent authorities to increase the efficiency of compliance assurance and reduce the unnecessary administrative burden on other regulated businesses. Examples include targeting inspections on facilities engaged in activities with a potentially higher impact on the environment or with poor compliance records. This trend is present in almost all OECD member countries, although targeting approaches vary. The United States, Finland and France, for example, define risk-based categories of installations and respective minimum inspection frequencies. The United Kingdom and the Netherlands, conversely, use formal scoring systems. Through sophisticated inspection targeting, British and Dutch competent authorities have actually reduced the overall number of site visits, while increasing the number of in-depth compliance audits at high-risk installations. There is increasing evidence that better targeted inspections result in a higher rate of detection of non-compliance. Therefore, they have more effective and efficient compliance assurance programmes.

Box 3.5. Examples of risk-based approaches

The Environment Agency in England uses two key risk-based approaches. It uses a Risk Assessment Methodology (H1, short for Horizontal Guidance Document 1) to determine the level of environmental risk posed by applicants for environmental permits. The applicant provides information on the risks associated with its activities, location, emissions and management competence, among other factors. Agency staff use the same process to develop a risk rating and to determine the appropriate level of permit, including any improvements needed prior to issuing a permit.

Once a permit has been issued, the Operational Risk Appraisal (OPRA) assesses the management of operational risk on an ongoing basis using similar criteria to those in the H1 Guidance. An annual OPRA “score” is produced which, as well as rating the level of “residual risk”, also informs the annual charges paid to the Agency. The OPRA rating includes an additional factor: the compliance history of the permit holder. A better overall risk rating (i.e. a permit holder with lower risk) lowers the charges as a result of reduced compliance and enforcement (e.g. inspection and monitoring).

Source: (Environment Agency, 2014[13]).

Self-monitoring and use of third-party assurance

Kazakhstan should assess the role of self-monitoring and use of third-party assurance by the regulated community. Responsibility for monitoring of industry’s environmental impacts is shifting from regulatory agencies to operators themselves. This gives businesses more ownership of compliance and increases the efficiency of compliance monitoring. These elements of “self-regulation” can be balanced (and rewarded) by streamlining the state’s requirements for businesses. For example, the state could reduce routine inspections, introduce electronic reporting and encourage independent verification of self-monitoring reports.

A number of environment agencies in the OECD and European Union have compliance approaches that make use of organisations’ management systems. The Environment Agency (England) requires all Integrated Environmental Permit holders to implement a management system to ensure compliance with requirements. There are good reasons for moving in this direction:

• Many large and complex organisations already use management systems and a significant proportion (around 30%) employ independent (accredited, certified) auditors to verify their performance.

• Environmental regulators lack resources to maintain historic levels of inspection; there are diminishing returns for inspection-based regulation and enforcement for organisations with effective management systems in place.

• A management system approach offers a structured, standardised method for managing compliance and for monitoring, evaluating and improving overall environmental performance.

• Proportionality – a fit for purpose management system – can reflect the type, complexity and potential risks of activities.

The government should encourage adoption of formal environmental management systems and independent verification, such as ISO 14001 and the Eco-Management and Audit System (EMAS). While EMAS is available worldwide to help reduce the environmental impact of (industrial) operations, no resource user has applied it to Kazakhstan to date. The increase in the number of ISO 14001 certifications has been modest in Kazakhstan. The introduction of other important certificates, such as ISO 26000 and SA 8000 social responsibility standards and ISO 5001 energy management standard, is rare.

Environmental auditing

Kazakhstan should consider how it can reform the use of environmental audits, environmental management systems and independent verification, in line with most OECD members’ good practice for self-monitoring.

Environmental auditing is covered by the Environmental Code (as amended). If an enterprise reorganises or goes bankrupt, or an inspection discovers significant damage to the environment, it may be requested to do a mandatory audit. Environmental audit can also be undertaken voluntarily and, in such cases, its outcomes are confidential. There are no data on how many voluntary audits take place. It is estimated that fewer than 100 mandatory audits were undertaken in 2017 across the entire country.

The Committee on Environmental Regulation and Control issues licences for environmental audits, which are of unlimited duration. Both legal entities and individuals can be licensed. The Committee receives mandatory environmental audit reports, but it rarely comments on the reports received. According to the Code, environmental auditors (both legal entities and individual entrepreneurs) shall be part of a chamber of environmental auditors. Several such chambers exist.

Environmental auditing does not seem to prevent environmental violations and damage or give incentives for an enterprise to undertake a voluntary audit. A mandatory environmental audit takes place when the prescription to remediate the violation is already in place and the damage has already occurred. This audit practice does not motivate the enterprise to implement environmental protection measures. There is no formal system to check whether an enterprise has implemented measures prescribed by an imposed audit, and auditing is not used to plan environmental protection measures.

The European Union and OECD member countries use environmental auditing in two principle ways:

• Environmental authorities use regulatory audits to carry out in-depth investigation into poor performance and non-compliance. They also use them to determine the “root cause” of problems as opposed to looking at symptoms. In this way, they aim to help entities improve systems and management practice. This type of auditing could be equated with Kazakhstan’s mandatory audits.

• Regulated companies use audits as part of business management. This can be as a result of implementing an environmental management system, or wider (e.g. integrated) management practice. Companies may employ third parties to independently verify their performance. In the case of an EMS, they use certification bodies to assess conformity with standards such as ISO 14001. Companies do audits to improve management performance, or as a result of supply chain, to respond to contractual requirements.

Many countries have a system to accredit certification bodies to international standards for auditing (conformity assessment). The United Kingdom Accreditation Service is one example. In EU countries such as the United Kingdom and the Netherlands, environment agencies have evaluated the potential for company environmental management and audits to assure legal compliance, alongside reduced state inspection.

Better use of new technology and information, including digitalisation, artificial intelligence and remote sensing

Information technology (IT) is increasingly employed in permitting, compliance assistance, monitoring and reporting. Uses range from electronic submissions of permit applications and self-monitoring reports to databases of various complexity to interactive web-based tools. IT is both a key means of improving the efficiency of environmental enforcement authorities and an essential element of initiatives to reduce the administrative burden on the regulated community.

Information and data being generated and used by EU and OECD environmental agencies, and by the regulated community, include:

• state of the environment reports, focusing on the condition and pressures on the environment

• sector reports, focusing on the risks and impacts of the sector and its companies’ performance in managing these risk and impacts, including compliance with permit and other requirements

• incident reports providing information on the types and severity of pollution incidents

• use of fines and penalties, looking at the effectiveness of enforcement

• information generated by environmental management systems such as audit findings and actions

• corporate and social responsibility reports

• environmental and compliance information in company annual accounts and reports.

The dissemination of compliance assistance information to the regulated community is getting more sophisticated. There is increasing emphasis on web-based tools such as Compliance Assistance Centres in the United States and NetRegs and Gov.uk in the United Kingdom. The expanding disclosure of compliance-related and general environmental information is thus making public pressure an important compliance incentive for businesses.

In a key trend, business organisations report on their environmental performance and get reports independently verified. This is being “mainstreamed” as governments and professional bodies such as the Institute of Chartered Accountants are requiring company accounts to cover environmental costs and liabilities. Two examples of good practice are set out in Box 3.6. They focus on bespoke environmental data management software products developed for commercial companies such as Viridor and Statoil.

Box 3.6. Examples of good practices in information technologies for compliance

OpenSpace web portal

OpenSpace is an interactive web page developed by Viridor (a resource and waste management company) with the Environment Agency. It enables users such as regulatory officers to view environmental compliance data via structured queries on any computer linked to the Internet. OpenSpace is the product of a four-year change programme within Viridor that has examined and changed every aspect of the way it schedules, obtains and processes environmental data. Viridor and its partner organisations have developed automated and standardised scheduling of environmental work across the UK waste and environmental industries. This has included the first database-scheduling link to a laboratory, as well as the use of personal digital assistant technology to obtain field data in a consistent and quality assured manner. All information visible within OpenSpace is underpinned by multiple layers of quality assurance. This aims to ensure the key data and associated management actions can be communicated in a timely and contemporary manner to the Environment Agency.

Emisoft and Statoil Management and Reporting System

In 1993, Emisoft was tasked by Statoil and Hydro, the two largest oil and gas companies in Norway, to design a system to keep track of their environmental performance. Statoil has focused on compliance, improving sustainability performance and continuously enhancing the efficiency of environmental accounting and reporting. For its part, Emisoft focused on developing a system that provides traceability and transparency, and ensures compliance.

In 2001, environmental authorities introduced zero discharge requirements for chemicals along the Norwegian continental shelf, a goal to be fulfilled by 2005. Statoil, Hydro and ConocoPhillips challenged Emisoft to develop a system to support a zero discharge strategy for chemical use. The zero discharge goal was met in 2005 and chemical discharges have been consistently lowered in subsequent years.

The EU Emissions Trading System includes requirements for submission of reports for all CO₂ emissions, third-party verification of the emission data and payment of CO₂ quotas. Statoil uses Emisoft’s system to produce all the required reports and ensure they contain complete, accurate and valid data. The Emisoft system is used to manage Statoil’s environmental performance throughout the organisation. Environmental data are managed in one common system. Data are accessed, updated and reviewed at site level and aggregated, monitored and reported on corporate level. Having access to quality data is fundamental for how Statoil conducts its business; carbon intensity is included in the company CEO’s score card as a key performance indicator. Statoil uses information produced by the Emisoft management and reporting system to communicate its sustainability performance to stakeholders.

Source: (Foreman, J. (ed.), 2018[2]).

References

[5] American Chamber of Commerce in Kazakhstan (2018), Analysis of Deviations of Kazakhstan’s Environmental Payments Systems from OECD-Country Standards, and Recommendations for Reforms, 9 April 2018, American Chamber of Commerce in Kazakhstan.

[13] Environment Agency (2014), Horizontal Guidance: Environmental Permitting, Environment Agency, Rotherham, United Kingdom, https://www.gov.uk/government/collections/horizontal-guidance-environmental-permitting.

[2] Foreman, J. (ed.) (2018), Developments in Environmental Regulations, Palgrave Studies in Environmental Policy and Regulation, Palgrave Macmillan, https://www.palgrave.com/gb/book/9783319619361.

[14] IMPEL (2014), Decision Aid for Choosing Effective Regulatory Interventions, European Union Network for Enforcement of Environmental Law, Brussels, http://www.gios.gov.pl/images/dokumenty/wspolpraca/impel/Choosing-Appriopriate-Interventions-phase-3_Guidance.pdf.

[8] IMPEL (2008), Doing the Right Things III Final Report on the Implementation of the Step-by-Step Guidance Book on Planning of Environmental Inspections, https://www.impel.eu/wp-content/uploads/2016/06/DTRT-III-Final.pdf.

[15] IMPEL (1999), Planning and Reporting of Inspections, European Union Network for Enforcement of Environmental Law, Brussels, https://www.impel.eu/wp-content/uploads/2016/09/RMCEI-plan-and-report-1999.pdf.

[6] Nazarbayev, N. (2017), Address to the Nation of Kazakhstan, 31 January 2017, http://www.akorda.kz/en/addresses/addresses_of_president/the-president-of-kazakhstan-nursultan-nazarbayevs-address-to-the-nation-of-kazakhstan-january-31-2017.

[3] OECD (2012), Liability for Environmental Damage in Eastern Europe, Caucasus and Central Asia (EECCA): Implementation of Good International Practices, OECD Publishing, Paris, http://www.oecd.org/env/outreach/50244626.pdf.

[10] OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, OECD, Paris, http://www.oecd.org/regreform/regulatory-policy/2012-recommendation.htm.

[4] OECD (2009), Determination and Application of Administrative Fines for Environmental Offences: Guidance for Environmental Enforcement Authorities in EECCA Countries, OECD Publishing, Paris, https://www.oecd.org/env/outreach/42356640.pdf.

[1] OECD (2009), Ensuring Environmental Compliance, Trends and Good Practices, OECD Publishing, Paris, https://doi.org/10.1787/9789264059597-en.

[11] UK Better Regulation Task Force (1997), Principles of Good Regulation, https://webarchive.nationalarchives.gov.uk/20100407173247/http://archive.cabinetoffice.gov.uk/brc/upload/assets/www.brc.gov.uk/principlesleaflet.pdf.

[7] UN EPA (2018), Criminal Investigations - Violation Types and Examples, United States Environmental Protection Agency, Washington, DC, https://www.epa.gov/enforcement/criminal-investigations-violation-types-and-examples.

[9] US EPA (2019), Penalty and Financial Models, United States Environmental Protection Agency, Washington, DC, https://www.epa.gov/enforcement/penalty-and-financial-models.

[12] van der Schraaf, A. and A. Roessen (2004), “Incentive framework to comply with regulations”, presentation at economic aspects of environmental compliance assurance, Paris, 2-3 December 2004, https://www.oecd.org/env/outreach/33962815.pdf.

Notes

← 1.  See Chapter 13 of the Criminal Code, Articles 324 – 343, https://online.zakon.kz/Document/?doc_id=31575252#pos=4357;-75.

← 2.  Criminal Actions can occur when EPA or a state enforce against a company or person through a criminal action. Criminal actions are usually reserved for the most serious violations, those that are wilful, or ‘knowingly’ committed. A court conviction can result in fines or imprisonment. See https://www.epa.gov/enforcement/basic-information-enforcement.

← 3.  Logic modelling provides a representation of how an intervention is expected to work. It can be used to capture and describe assumptions and evidence used by those designing, applying and evaluating policies, goals or interventions. See (IMPEL, 2014[14]).

← 4.  See https://www.impel.eu/tools/risk-criteria-database-iram/.

← 5.  See (IMPEL, 2008[8]).

← 6.  See (IMPEL, 1999[15]).