ABSTRACT
This chapter examines documentation practices and strategies that provide the shield and the sword, often concurrently using the same instrumentality, to minimize liability and manage outcomes. Documentation is not only a shield against liability, but also a sword that allows better management of events and better control of outcomes. Typically, these data are to be provided on preprinted forms such as the Daily Monitoring Reports that are the National Pollution Discharge Elimination System reporting mechanisms. For all instances of noncompliance, in addition to the monitoring report, a written noncompliance report must be submitted. Any inaccuracy in the blank preprinted report forms also presents liability exposure for the regulatee, even though these forms are provided by the regulator who mandates their use. Defenses exist in environmental law, under certain circumstances, as a result of upsets, bypasses, and spills. Creative and tactical correspondence is an extremely effective mechanism to wield documentation as a shield and a sword.
