ERCB Persistent Noncompliance Framework

As part of the ERCB compliance strategy, ERCB groups will monitor industry compliance performance to identify licensees (or the responsible duty holder, as defined in legislation) that have an unacceptable rate, ratio, percentage, or number of noncompliances in either the same or different compliance categories. Licensees identified as persistently noncompliant will be required to develop strategies to improve their compliance performance.

Failure to improve compliance performance can result in additional enforcement actions.

The Persistent Noncompliance Framework provides guidance to ERCB groups to ensure a fair, transparent, and level playing field. Within the framework, ERCB groups will be required to clearly indicate the criteria for initiating early intervention activities and determining persistence.

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ERCB Persistent Noncompliance Framework (in accordance with Directive 019: ERCB Compliance Assurance Enforcement)

Introduction

• Each ERCB group will use the following framework to determine whether a licensee is persistently noncompliant.
• Each group will track surveillance activities by compliance category. Items to be captured will include the total number of inspections/audits/investigations conducted and their results.
• If after management review, a licensee defined as persistent is not subject to persistent consequences, the decision and rationale must be recorded and maintained on file by the ERCB group.

Definitions

• Persistent noncompliance an unacceptable rate, ratio, percentage or number of noncompliances by a licensee, either in the same or in different compliance categories.
   Licensee noncompliance rate the total number of noncompliances divided by the total number of conducted ERCB inspections/audits/investigations on that licensee within a compliance category.
• Licensee status for the purposes of determining High Risk persistence, "low" means the number of noncompliances or a threshold at which the ERCB may intervene, "monitor" means the level at which the ERCB will intervene, and "persistent" is the level at which the ERCB will intervene and take High Risk Enforcement Action 2.
• Noncompliance threshold for the purpose of High Risk persistence Option 2, the percentage of noncompliances found during an inspection/audit/investigation above which a licensee will be determined to be at low, monitor, or persistent status.
• Industry average rate the total number of industry noncompliances divided by the total number of conducted ERCB inspections/audits/investigations on industry within a compliance category.

Low Risk

• Within each compliance category, surveillance activity results must provide the ability to compare individual licensee noncompliance rates with industry average rates to assist in the determination of Low Risk persistent noncompliance.
• At the conclusion of each calendar year, or at a predetermined period as determined by the ERCB group, the ERCB group will generate a report that identifies licensees whose noncompliance rate exceeds the industry average rate.
• The five to ten licensees with the greatest exceedance of the industry average rate are defined as persistently noncompliant for Low Risk and are subject to the requirements of Directive 019, Section 4.1: Low Risk Review. The number of licensees identified is determined by the ERCB group.

High Risk

By December 1 of each year, ERCB groups will publish on the ERCB Web site the Persistent Noncompliance Criteria by Compliance Category (hyperlink). This will include the licensee status criteria for Persistence, Monitor, and Low.

Option 1: Number of Noncompliances

• Review period will be a 90-day rolling window (ongoing) or a period predetermined by the ERCB group.
• For the review period, each ERCB group will generate a report outlining the number of High Risk noncompliances in each compliance category experienced by each licensee. The number of noncompliances during the review period will determine the ERCB response in relation to the Number of Noncompliances column below.
• Upon being designated as persistent, a licensee must operate in compliance for 60 days or a predetermined period of time from the date of the ERCB accepting the High Risk Enforcement Action 2 action plan (see Directive 019) to return to a satisfactory compliance rating. If a licensee fails to operate in compliance during this time frame, High Risk Action 2 (Persistence Noncompliance) will be repeated and a licensee may be subject to additional enforcement consequences, as outlined in Directive 019.

The example below is for representative purposes only; exact noncompliance numbers are to be determined for each compliance category by the respective ERCB group.

		Determined by ERCB Group
Licensee Status	ERCB Action	Noncompliance Threshold	Review Period	Operate in Compliance
Persistent	High Risk Noncompliance Action 2 and must intervene and educate	≥10%	Annual or predetermined review point	60 days or predetermined period
Monitor	Must intervene and educate intervene and educate	8 to 9.99%
Low	May intervene and educate intervene and educate	7 to 8.99%