PRO C E E DIN G S
VOLUME 2
November 16-20, 1998
Monterey, California, USA
^vbi c,G
*L PRCfi*
Ministry of Housing,
Spatial Planning,
and the Environment
(VROM) The Netherlands
ENVIRONMENTAL
LAW-INSTITUTE
Environment/
Envirohnement
Canada
ENVIRONMENT
AGENCY
WORLD BANK
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FIFTH INTERNATIONAL CONFERENCE ON
ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT
CONFERENCE PROCEEDINGS
VOLUME 2
November 16-20,1998
Monterey, California, United States
Editors:
Mr. Jo Gerardu, VROM, The Netherlands
Ms. Cheryl Wasserman, USEPA, USA
Executive Planning Committee:
Dr. Adegoke Adegoroye, Nigeria
Mrs. Costanza Adinolfi, European Commission
Mrs. Jacqueline Alois! de Larderel, UNEP, IE
Dr. Michael Axline, E-Law Worldwide
Mtro. Antonio Azuela, Mexico
Mr. Sirithan Pairoj Boriboon, Thailand
Mr. Marlito Cardenas, Philippines
Ms. Helena Clzkova, Czech Republic
Mr. Christopher Currie, Canada
Mr. Rodrigo Egana Baraona, Chile
Dr. Ossama EI-Kholy, Egypt
Mr. J. William Futrell, Environmental Law Institute
Mr. Marco Antonio Gonzalez Salazar, Costa Rica
Dr. Francois Hanekom, South Africa
Mr. Steven A. Herman, (Co-Chair), USEPA
Mr. Zbigniew Kamienski, Poland
Ms. Svitlana Kravchenko, Ukraine
Dr. Paul Leinster, United Kingdom
Mr. Nabiel Makarim, Indonesia
Ms. Michele de Nevers, The World Bank
Dr. Aziz Abdul Rasol, Malaysia
Dr. Babu Sengupta, India
Mr. Armando Shalders Neto, Brazil
Dr. Pal Varga, Hungary
Mr. Pieter J. Verkerk, (Co-Chair), VROM, Tl
Mr. Hongjun Zhang, People's Republic of C
Sponsors:
U.S. Environmental Protection Agency, United States
Ministry of Housing, Spatial Planning and the Environment, The Netherlands
United Nations Environment Programme, IE
European Commission
Environmental Law Institute, United States
Environment Canada
The Environment Agency, England and Wales (United Kingdom)
The World Bank
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These Proceedings, Volume 2, include opening and closing remarks,
keynote speeches, additional papers, summaries of plenary theme,
workshop and regional meeting discussions, results of the participant
evaluations and a list of participants at the Fifth International
Conference on Environmental Compliance and Enforcement,
November 16-20, 1998, in Monterey, California, USA.
Copyright © 1999 by the Conference sponsors: United States
Environmental Protection Agency; Ministry of Housing, Spatial Planning
and the Environment, The Netherlands; United Nations Environment
Program, IE; The World Bank; European Commission; Environmental
Law Institute; Environment Canada; and The Environment Agency,
England and Wales. No part of this book may be reproduced in any
form or by any means without the prior permission of the authors and
attribution to the Fifth International Conference on Environmental
Compliance and Enforcement, November 16-20, 1998, held in
Monterey, California, USA. Use of these materials is strongly
encouraged for training and further dissemination.
Opinions expressed are those of the authors and do not necessarily
represent the views of them organizations.
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TABLE OF CONTENT
CONTENTS
PREFACE.
CONFERENCE PURPOSE AND GOALS .
CONFERENCE PROGRAM
1. Welcome to Monterey, Nitze, William
2. Welcome and Introduction to the Conference, Verkerk, PieterJ.
3. Overviewand Vision: Environmental Compliance and Enforcement
and International Networking, Herman, Steven A
4. Keynote Address: Environmental Enforcement as a Cornerstone to a New
Generation of Environmental Protection, Browner, Carol
Theme #1:
Making it Happen: Applying the Principles of Environmental Compliance and
Enforcement
15. Summary of Theme #1 Panel Discussion, Moderator: P. Leinster;
Rapporteur. J.A. Semones,
16. Launching Enforcement Programs Through Compliance Action Plans Sherif
Yasser
17. Institutional Reform through Judicial Activism, Saldanha, Michael
18. Making it Happen: The Evolution of Pulp and Paper Mill Compliance in British
Columbia, Bircher, Nancy
19. Public Participation and Environmental Compliance and Enforcement in
Cambodia, Sophy, MakandDararath, Yem
20. TheU.S. Experience with the Toxics Release Inventory: An Important Tool to
Identify Potential Risks to the Public and to Protect Environmental Health
Walker, Michael and Marvin, Thomas '.
21. Environmental Enforcement in the Czech Republic: The ED Pre-Accession
Phase, Miko, Ladislov; Cfekova, Helena andKruzikova, Eva....
22. Enforcement of Environmental Laws in Mongolia, Damdin, Tserandash and
Batsukh, Bolormaa
23. The General Environmental Law of the Republic of Panama,
Hernandez Virviescas, Marco Tulio '
24. See also Criminal law and the Protection of the Environment in Brazil,
Benjamin, Antonio Herman V.
25. See also Cooperation between Levy-Inspectors and Enforcement Inspectors:
A More Effective Way of Enforcement, Steinmetz, Alex
Theme #2:
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IV
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Workshop 2A
Communications and Enforcement .................... .
3. Summary of Workshop Discussion, Facilitators: R. Bakx, C. Currie,
J. van Dijk, C. Musgrove; Rapporteurs: J. Buntsma, B. Goinga
Workshop 2B
Encouraging Public Role in Compliance Monitoring and Impact of
Public Access to Environmental Information/ Community Right to Know
Laws on Compliance and Enforcement Programs ........................................ 145
8 Summary of Workshop Discussion, Facilitators: J. Bonine, P. van Erkelens,
A. Oposa Jr., L. Paddock, E. Stanley, A. Steinmetz; Rapporteurs: M. Alushin,
D. Mowday.J. Rothman ....................................... • ............................................... 147
9 South Africa: Case Study on Citizen Participation in Setting and Monitoring
Environmental Standards. (Capricorn Park/A Science Park in Cape Town),
"l T^
Andrews, Angela [[[ •
Workshop 2C
Compliance Monitoring ... ............................................. •
4. Summary of Workshop Discussion, Facilitators: H. ten Hoopen, H. Laing,
M. Mulkey, G. van Tongeren; Rapporteur: J. Aden, J.A. Semones ...................... 165
5. Multi-Sectoral Approach to Compliance Monitoring, Amador, Julian .................... 169
Workshop 2D
Multi-media (Integrated) Inspections and Permitting .................................... T*>
1 . Summary of Workshop Discussion, Facilitators: C. Booth, R. Cheatham,
K. Macken, T. Mas/any; Rapporteurs: G. Ginsberg, M. Fenders .......... ................ 177
Workshop 2E
Source Self-Compliance Monitoring Requirements ........... . ............... •
3. Summary of Workshop Discussion, Facilitators: C. Boekel, R. Kreizenbeck;
Rapporteur M. Com/no ............................................ • ...................... • .................... 185
Workshop 2F '.
Detecting Hidden Operations Outside of Legal Frameworks
2. Summary of Workshop Discussion, Facilitators: L Spahr, T. Spel;
Rapporteur: A. Lauterback ............ ...................... - ....................... .......................... 191
Theme #3
"Carrots and Sticks"
1 . Summary of Theme #3 Panel Discussion, Moderator: H. C/zkova;
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TABLE OF CONTEN
Workshop 3A
Structuring Incentives for Private Sector Compliance
3. Summary of Workshop Discussion, Facilitators: K. Boekel, M. Dooley,
H. Laing, M. de Nevers; Rapporteurs: N. Peaple, R. Cheatham
4. Structuring Incentives for Private Sector Compliance: Pilot Projects on Audit'
and Links Between ISO 14000 Series and EMAS, Boehm-Amtmann, Audrey
Workshop 3B
Environmental Crimes and Criminal Enforcement
10. Summary of Workshop Discussion, Facilitators: E. Devaney, A. Gallas,
L Spahr, T. Spel; Rapporteurs: S. Hay, M. Fenders ' '
11. Criminal law and the Protection of the Environment in Brazil,
Benjamin, Antonio Herman V.
12. Using Coordinated Enforcement to Protect Forests from Illegal Logging in the
Philippines, Oposa Jr., Antonio A
Workshop 3C
Citizen Enforcement
6. Summary of Workshop Discussion, Facilitators: J. Bonine, S. Kravchenko
M. Mehta; Rapporteurs: M. Axline, S. Casey-Lefkowitz
7. Broadening "Standing to Sue" for Citizen Enforcement, Bonine, John E.
8. Legal and Institutional Constraints to Public Interest Litigation as a
Mechanism for the Enforcement of Environmental Rights and Duties in Kenya
Odhiambo, Michael Ochieng '
Workshop 3D
Structuring Financial Consequences in Enforcement: Penalty
Policies, Recovery of Damages, Recovery of Economic Benefit of
Non-Compliance
3. Summary of Workshop Discussion, Facilitator: N. Marvel;
Rapporteur C. Musgrove; Expert Economic Benefit Modeling: J. Libber
Workshop 3E
Role of Negotiation in Enforcement
1. Summary of Workshop Discussion, Facilitators: S. Bromm, J.W. Wabeke-
Rapporteur: J.Rothman
Workshop 3F
Administrative Enforcement Mechanisms: Getting Authority and
Making it Work
2. Summary of Workshop Discussion, Facilitators: A. Parker, M. Mulkey;
Rannnrtesiir (Z fZinchom
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FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Workshop 3G
Compliance Schedules and Action Plans: Content, Enforceability and
Use in Compliance and Enforcement • 289
3. Summary of Workshop Discussion, Facilitators: J. Buntsma, T. Mas/any;
Rapporteur: C. Hooks , 291
4. Compliance Plans: Creative Negotiations for Corrections and Penalty,
Dabrowski.Boguslaw 295
Theme #4 ?99
Capacity Building... ^
1. Summary of Theme #4 Panel Discussion, Moderator: M. de Nevers;
Rapporteurs: D. Mowday, J.A. Semones 301
Workshop4A ".,_..«.
Managing Centralized and Decentralized Programs; Achieving the
Right Balance of Roles and Relationships for Key Functions;
Accountability Measures, Compliance Indicators, and Reporting 305
4. Summary of Workshop Discussion, Facilitators: T. Mas/any, J. Peters;
Rapporteurs: C. Booth, D. Mowday 307
5. Keynote: Relationship Between the Legal Arm of Government and the Line
Environnmental Agency or Ministry, Schiffer, Lois J 311
6 US Environmental Protection Agency National Performance Measures
Strategy for Environmental Compliance and Enforcement, Stahi, Michael M. 319
Workshop4B
Budgeting and Financing Environmental Compliance and
Enforcement Programs: How Much Enforcement Is Enough 337
1. Summary of Workshop Discussion, Facilitators: H. Laing; K. Macken;
Rapporteur: R. Kreizenbeck 339
Workshop4C
Training Programs for Compliance Inspector, Investigator and Legal
Personnel • •
3 Summary of Workshop Discussion, Facilitators: S. Bromm, C. Currie,
E. Devaney, A. Steinmetz; Rapporteurs: R. Cheatham, A. Lauterback 345
4. EnvironmentCanada's National EnforcementTraining Program - Building
Capacity, Currie, Christopher 351
Workshop4D
Setting up and Managing Compliance Assistance Programs and
Information Outreach on Regulatory Requirements 357
4. Summary of Workshop Discussion, Facilitators: M. Gonzales, E. Stanley;
Rapporteur: D.Paige 35
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TABLE OF CONTEND
Workshop 4E
The Science in Enforcement: Setting Up and Financing Laboratories-
Ensuring the Integrity of Sampling and Data Analysis: Scientific
Support for Enforcement
1. Summary of Workshop Discussion, Facilitators: N. Marvel J Rothman •
Rapporteur: M. Fenders
Workshops 4F-4J
Tailored Strategies for Environmental Compliance and Enforcement...
4. Summary of Workshop Discussion (Government/Municipal/Military)
Facilitators: P. van Erkelens, C. Hooks; Rapporteur: C. Boekel
5. Summary of Workshop Discussion (Small and Medium Enterprises)
Facilitators: C. Lamers, C. Musgrove; Rapporteur: L Spahr
6. Summary of Workshop Discussion (Non-Point Sources of Water Pollution)
Facilitators: J. Buntsma, S. Casey-Lefkowitz; Rapporteurs. Casey-Lefkowitz
7. Summary of Workshop Discussion (Geographic or Resource Based)
Facilitators: N. Bircher, G. Ginsberg; Rapporteurs: M. Alushin, N. Bircher
8. Environmental Rehabilitation of Sumgait, UNDP Project, tslamzade, Arifl.
9. Forest Policy in El Salvador, Canas, Carlos and Carballo Broen, Alma
10. Cooperation between Levy-Inspectors and Enforcement Inspectors-A More
Effective Way of Enforcement, Steinmetz, AlexH. 2.
11. See also South Africa: Case Study on Citizen Participation in Setting and
Monitoring Environmental Standards. (Capricorn Park/A Science Park in Cape
Town), Andrews, Angela
Theme #5
International Cooperation/Transboundary Compliance and
Enforcement Issues
1. Summary of Theme #5 Panel D'scussion, Moderator: A. Gallas-
RapporteurJ. Gerardu
Workshop 5A
Illegal Transboundary Shipment of (Hazardous) Waste
6. Summary of Workshop Discussion, Facilitators: C. Boekel, A. Gallas
A. Lauterback; Rapporteurs: M. Fenders, J. Rothman .' '..
7. Compliance With and Enforcement of the Basel Convention on Control
Transboundary Movements of Hazardous Wastes and Their Disposal
Rummel-Bulska, Iwona
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VIII
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Compliance with International Environmental Agreements: Focusing
on Montreal Protocol and CITES: Illegal Shipments of CFC and Other
Ozone Depleting Substances and Illegal Trade in Endangered Species ....433
2. Summary of Workshop Discussion, Facilitators: M, Alushin, D. Zaelke;
Rapporteurs: G. Ginsberg, C. Jorge ...................................... ....... • ......................
3 Mongolia's Experience in Implementation of the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, Batsukh, Bolormaa ....... 433
4. The Implementation of Biodiversity Convention in China, U, Xiaohua ................... 449
5 Compliance with the Montreal Protocol in China: An Investigation in
Two Industrial Sectors, Zhao, Jimin andOrtolano, Leonard ................................. *<»
°f Illegal Shipments of Dangerous Chemicals Including Pesticides ................ 479
2. Summary of Workshop Discussion, Facilitators: J. Amador, M. Mulkey;
Rapporteur: L.Spahr ..................................
Enforcement Cooperation to Protect Shared Resources
and Prevent Transboundary Pollution [[[
3 Summary of Workshop Discussion, Facilitators: H. C/zkova, R. Kreizenbeck,
J. Peters, G. van Tongeren; Rapporteurs: H. Laing, D. Mowday
4 International Police Cooperation: Presentation of the ICPO-lnterpol and I its
activities in preventing and combating environmental crime, Ekdahl, Jytte
Workshop 5E «*-.!«
Collaborative Targeting of Enforcement on an International Scale
3. Summary of Workshop Discussion, Facilitator. P. Leinster;
Rapporteurs: N. Marvel, J.A. Semones ................ ...
Theme#6
Building Regional and Global Networks
4. Summary of Theme #6 Panel Discussion, Moderator: J. van den Heuvel;
Rapporteur: C. Wasserman ............. , ................ ...... • ................ '•'• ...........................
5. Summary of Regional Meeting: Europe, Facilitator: S. Hay, L Miko, W. Petek;
Rapporteur: B.Goinga [[[
6. Summary of Regional Meeting: Americas, Facilitators: A. Azuela, A. Shalders
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TABLE OF CONTEN'
8. Summary of Regional Meeting: Asia and Pacific, Facilitator: A. Rasol-
Rapporteurs: J. Aden, R. Kreizenbeck
9. Summary of Regional Meeting: Africa and West Asia/Middle East,
Facilitators: A. Adegoroye, Y. Sherif; Rapporteur: L Spahr '..
10. Building Regional and Global Networks, Regner.Kia
CLOSING REMARKS, Herman, Steven A. and Verkerk, PieterJ....
CONFERENCE EVALUATION
PARTICIPANT LIST
PARTICIPANT LIST BY COUNTRY
MEMBERS OF THE INECE EXECUTIVE PLANNING COMMITTEE.
PROJECT MANAGEMENT AND CONFERENCE SUPPORT
ACKNOWLEDGMENTS
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FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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PREF
PREFACE
The Fifth International Conference on Environmental Compliance and Enforcement
in Monterey, California, November 16-20, 1998. This Volume 2 of the Proceedinc
welcome, opening and closing remarks, additional papers and keynote speeche
includes summary reports on Conference plenary sessions, workshops and
meetings and the results of the participant evaluation of the Conference The tot
in Volume 2 continue the practice of cross referencing relevant materials fi
proceedings and reports issued by the INECE partnership. The Proceedings will I
disseminated to all conference participants, other country environmental officials
governmental organizations (NGO's) throughout the world. It is accessible th'r
Internet site of the International Network for Environmental Compliance and Enfc
(INECE): www.INECE.org where papers are also indexed by topic along with the
papers from the Proceedings of the first four international conferences.
The advances and continuing challenges of the evolving network of government
NGOs, and international organizations — in designing and developing effective r
achieving compliance with and enforcing domestic environmental law and inter
environmental agreements — speaks to us from these pages. We are all enriched v
colleagues take the time out of their busy schedules to share their experience
frustrations, and their accomplishments so that we might be inspired by their e
encouraged to try new approaches, and/or bolstered by evidence of the benefits
difficult task can make the promise of implementation and compliance with enviro
law a reality.
The Fifth International Conference was another important stepping stone and cat
making it happen". These papers demonstrate the increasing commitment to and
sophistication of programs and new initiatives around the world to achieve the prote
public health and environment we seek. Volume 2 provides a vision of where the
partnership sees environmental compliance and enforcement heading in the next mill!
tt contains compelling accounts of ecosystem improvements through enforcement ir
Colombia in Canada; of heroic efforts to prosecute and convict, on site illegal
operations in the Philippines; of experiments with reconciling new market incen
develop environmental management systems which may deliver improved complian
the need to maintain a strong enforcement presence in Germany; of the differential
of market influences in the People's Republic of China to achieve reductions in
depleting substances; of public access to justice issues in Kenya and Tanzania- of inn
use of compliance schedules and action plans in Egypt and the Czech Republic
environmental improvements and make compliance happen in the face of serious eo
and institutional impediments to compliance; and of efforts by Mongolia to protect
array of endangered flora and fauna. These are but a few examples of the many stone-
these volumes.
The Fifth International Conference was the first to be held underthe bannerof the Intern
Network for Environmental Compliance and Enforcement (INECE) The INECE Exe
Planning Committee devoted much time and effort to design a Conference to offerthe gi
opportunity for useful exchange and practical information for individuals both with
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2 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
can be obtained by contacting the Staff or members of the Executive Planning Committee.
The INECE partnership will continue to foster national, regional and global networking^
caoacitv building and cooperation beyond the exchanges at the Conferences. On behalf of
the Executive Planning Committee, we look forward to your continued and products use
of these Conference materials.
w?^Gerardu Ms. Cheryl Wasserman
Head Department of Strategy, Associate Director for Policy Analysis
Pianino and Control Office of Federal Activities
,^S^ ftXLl^^ment Office of Enforcement and Comp.^nce Assurance
VROM, The Netherlands U.S. Environmental Protection Agency
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CONFERENCE PURPOSE AND GOALS
CONFERENCE PURPOSE AND GOALS
The purpose and goals of the Fifth Conference reflected the progress already made anc
directions undertaken to meet needs of participants to improve environmental complianci
enforcement.
Help to Make Compliance and Enforcement Happen
The Fifth Conference focused on action: making enforcement and compliance happen.
conferences focused on the building blocks for understanding environmental compliance
enforcement, developing a common framework, defining common principles
understanding driving forces and barriers. Benefiting from these past discussions, the
Conference used the common frameworks to focus on how to put these principles
practice, how to harness the driving forces and how to evaluate and move beyond prog
already achieved. Conference plenary presentations highlighted some of the best exarr
of how different nations from different regions of the world, economic and social settings I
taken steps to "make it happen." In addition, the conference organizers introducec
opportunity for participants to seek assistance on particular problems in "clinics" struct
around specific requests.
Draw Together Those Influencing the Design of Environmental Complianc
and Enforcement Programs in Effective Partnerships
The target audience for the Conferences remained enforcement officials and environme
policy makers in government and NGOs active in environmental compliance and enforcerr
those who are in a position to influence the design or enhancement of environme
enforcement programs. Within government the Conference sought representation f
national, regional, and local governmental units responsible for both the legal and techr
aspects of environmental enforcement at the mid- to senior-management levels. It i
continued to involve selected non-governmental organizations (NGOs) and representati
of selected international industry organizations. The Fifth International Conference a<
drew attention to identify contacts within government from both environment ministries i
or sectoral ministries involved in environmental enforcement as well as traditional
enforcement personnel in order to foster new relationships to make enforcement work rr
smoothly within country and to facilitate cooperation among nations both on a global
regional basis to address transboundary compliance issues.
Offer Something for Everyone
The Conference program included topics and workshops to meet the needs of all participa
Participants came from countries with various approaches to compliance and enforcem
as well as with enforcement programs at various stages of development within varii
economic settings including those from developing, rapidly industrializing, transitional i
industrialized economies. In addition, participants themselves had many years of experiei
in enforcement or only a few. Some participants attended past conferences, while for oth
this was their first experience in this international forum. Workshops were structured to t;
these differences into account while promoting exchanges among participants with a w
ranqe of exoeriences. The Conference* hfinan with a review/ nf hnu/ |pccr\nc
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4 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
providing all participants with common ground. An overview of the Principles of Environmental
Compliance and Enforcement was targeted to those new to the conference or who wanted
a refresher, followed by group exercises and open exchange on neutral case studies using
the Principles of Environmental Enforcement workshops. This encouraged ail participants
to be open to new ideas and varying approaches of colleagues during the ensuing days of
the conference.
The scope of the conference offered a wide range of perspectives, from global to regional to
specific country or locality programs. It brought together the full range of disciplines and
organizations needed to bring about compliance with environmental requirements, both within
and outside of government. It encompassed both compliance and enforcement approaches,
programs and the working relationships needed to support them, both incentives and
disincentives. Finally, it extended from achieving compliance with domestic environmental
requirements to domestic programs implementing international environmental agreements.
Articulate and Support Country, Regional and Global Capacity Building
Agendas
The United Nations Conference on Environment and Development (UNCED) held in Rio de
Janeiro in June, 1992, produced an international agenda, Agenda 21, which firmly stated that
effective environmental compliance and enforcement programs are a key element of
environmental management and recognized the need to build institutional capacity for effective
enforcement in each nation's environmental program. If the INECE partnership and the
participants in the international network are to succeed in building capacity they must direct
limited resources on areas with the most important and pressing needs. The Conference
program provided the potential and opportunity for nations to establish their own priorities
for capacity building and an aggregated view within and across regions of the world to facilitate
access to international support. To articulate needs in a manner which can be supported and
understood sufficiently well to garner commitment and support, the Executive Planning
Committee initiated development of a country progress self assessment tool. Among other
goals it was designed to help participants focus on what they want to get out of their
participation both at the conference and from follow up activities to meet perceived capacity
building needs for their own countries, region, and across the globe.
Encourage Ongoing International and Regional Networking
Past conferences have shown the importance of ongoing international and regional
networking beyond the conference itself that encourages and facilitates program
improvements and cooperation. The conferences have seen the evolution of a global network-
INECE- as well as several regional networks - both nascent and mature. The program
highlighted international networking resources designed to address global issues and to
facilitate cooperation among regions. In addition, participants had an opportunity to meet
within their regions to discuss common challenges and priorities and to develop ongoing or
build upon existing mechanisms; for regional collaboration and strategies for strengthening
environmental compliance and enforcement.
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CONFERENCE PURPOSE AND GOAL
Foster Exchange of Expertise and Learning through Active Particij
The Conference was structured to provide ample opportunity for participants •
professional networks and to learn through active participation. In addition to open dis<
during plenary sessions and workshops of 15 to 25 participants on every day
Conference there were informal opportunities for exchange around exhibits and
Conference events.
The Conference relied heavily on interactive workgroup sessions. Participants were ex
and encouraged to participate actively in discussions and working sessions. Individuals
come to the Conference prepared to share experiences in environmental complian.
enforcement that will benefit others involved in similar activities. The Conference providi
for participants to reflect on their current enforcement activities and to identil
approaches that can be implemented in their respective countries.
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FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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CONFERENCE PROGRAM
CONFERENCE PROGRAM
November 14, 1998
09:00 - 17:00 Training of facilitators for workshops on the Principles of Environmental
Compliance and Enforcement
November 15, 1998
09:00 - 12:00 Preparation and training of facilitators for special topic workshops
13:00 - 14:30 Meeting of speakers and moderators to prepare for plenary sessions
15:00-16:00 Executive Planning Committee meeting
15:00 - 18:00 Registration (continued November 16, 1998 8:00-8:30)
17:00 - 18:00 Conference Welcome Reception
November 1 6- 20, 1 998
Exhibits
Exhibits were on viewthroughoutthe Conference
• AboutlNECE: International NetworkforEnvironmentalComplianceand Enforcement.
' and™fn'°"sal^^
' ProS'wghShte1 in°IUded Networks' lnstituti°n Building Projects and Programs, Country
• NGO corner Citizen Role in Enforcement
' SZSSSSS^ Support for Environmental Compliance and
• ModelsforCalculatingRecoveryofEconomicBenefitorAssessingDamages.
• Inspector/Police Training Mateiialsand Monitoring Equipment.
• VideoDisPlays:VideosforComPlianceandEnforcementCommunicationsandTraining.
• MaterialsSupportingSpecialTopicWorkshopSessions.
November 18, 1998
14:00 - 17:00 Clinics/Exhibits
Allotted open time to view exhibits and demonstrations in the exhibit area during Wednesday
ofS!^"!26^
requested assistance where at their option, participants
lems and
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8 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
*
Day One Day Chair - Mr. Pieter Verkerk, InspectorGeneral, VROM
November 16,1998
8-30 - 8:40 Welcome to Monterey: Mr. William Nitze, Assistant Administrator, Office of
International Activities, U.S. Environmental Protection Agency
8:40 - 9:15 Opening Plenary: Overview and Vision
Collaborative Session with Co-Chairs Mr. Steven Herman, Assistant Administrator for
Enforcement and Compliance Assurance, USEPA and Mr. Pieter Verkerk, Inspector
General VROM and selected members of the INECE Executive Planning Committee
IT HAPPEN:'APPLYING^THE PRINCIPLES OF
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT „»* ^ >,1
9:15-11:15 Plenary Session - Panel Discussion:
Moderator Dr. Paul Leinster, Director, Environmental Protection Directorate,
Environment Agency, United Kingdom
Speaker#1: Mr. YasserSherif, Director, EgyptianEnvironmentalAffairsAgency,
Egypt
• Launching EnforcementProgramsThroughComplianceAction
Plans and Environmental Management Systems
Speaker#2: Justice Michael F. Saldanha, Kamataka High Court, India
• Citizen and Judicial Activism for Institutional Reform
Speaker* 3: Mr. Armando Shalders Neto, Director of Environmental Pollution
O3ntrol,CornpanhiadeTecnologiadeSaneamentoArnbiental, Brazil
• The Evolutionof'Complianceand Enforcements Brazil
Speaker #4: Ms. Nancy Bircher, Director, Ministry of Environment, Lands and
Parks, BC Canada
• The Evolution of Pulp and Paper Mill Compliance in Bntish
Columbia
11-15-12-00 Principles of Environmental Enforcement- Overview for New Participants & others
Speaker* 5: Ms. Cheryl Wasserman, Associate Director for Policy Analysis,
Office of Enforcement and Compliance Assurance, USEPA
12:00-13:30 Lunch
13:30-18:00 Theme # 1 Workshops
In small groups, workshop participants used case studies to explore the principles of
environmentalcomplianceandenforcement. Participantschosetheirpreferredcasestudy
subjectmatter.
1A Coal Burning/Sulfur Dioxide problems
1B Mining
1C Petrochemical/Refining
1D Deforestation
1E Residential and Industrial Waste disposal
1F Tourism
1G Transboundary Illegal shipments of Hazardous Waste, Toxic
chemicals (Pesticides), contraband CFC
18:30-19:15 Keynote: Environmental Enforcement as a Cornerstone to a New Generation
of Environmental Protection
Ms. Carol M. Browner, Administrator, U.S. Environmental Protection Agency
19:30 Dinner hosted by Conference Sponsors
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CONFERENCE PROGRAM
Da/Two DayChair -Mr. Steven Herman, Assistant Administratorfor Enforcementand
Compliance Assurance, USEPA
November 17, 1998
THEME *#2 ^COMMUNICATIONS, PUBLIC ROLE, AND COMPLIANCE MJDNITORINcT
8:30-9:30 Plenary Session - Panel Discussion:
Moderator: Dr. Adegoke Adegoroye, Director General, FEPA
Speaker* 6: Mr. Margana Koesoemadinata, Deputy Minister, BAPEDAL,
Environmental Impact Management Agency, Indonesia
• Compliance Status As Public Information
Speaker* 7: Ms. Svitlana Kravchenko, President, Ecopravo Ukraine
• EffectiveCitizen Enforcement
Speaker* 8: Mr. Nguyen Khac Kinh, Deputy General Director, National Environmental
Agency, Vietnam
• LsunchingaNewProgramthroughaNationallnspectionlnitiative
Speaker* 9: Ms. Elaine Stanley, Director, Office of Compliance, U.S. Environmental
ProtectionAgency, USA
• Using Self ComplianceMonitoringandPerformanceData
9:30 - 12:30 Theme # 2 Workshops
In small groups, workshop participants explored special topics dealing with Theme # 2-
PaSf "hnS andfComPliance Monitoring with experts and among themselves.'
Participantschose preferred workshoptopic.
2 A Communications and Enforcement.
2B
12:30 - 14:00 Lunch
.
Encouraging Public Role in Compliance Monitoring and Impact of
Public Access to Environmental Information/Community Right to
Know Laws on Compliance and Enforcement Programs
2 C Compliance Monitoring.
2 D Multi-Media (Integrated) Inspections and Permitting.
2 E Source Self-Compliance Monitoring Requirements.
2 F Detecting Hidden Operations Outside of Legal Frameworks.
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10 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
14:00 -15:00 Plenary Session • Panel Discussion:
Moderator Ms. Helena Cizkova, International Project Coordinator, Ministry of the
Environment of the Czech Republic, Czech Repyblic
Speaker* 10: Mtro. Antonio Azuela, Federal Attorney for the Environment Protection,
Mexico
• CompliancelncentiveSchemes:HarnessingEnvironmental
Auditing, Environmental Management Systems (e.g., ISO14001
certification), and Their Relationship to Enforcement
Speaker#11: Mr. BoguslawDabrowksi.Head, Voivodeshiplnspectoratefor
Environmental Protection, Poland
• Compliance Plans: Creative Negotiations for Correction and
Penalty
Speaker* 12: Ms. Connie Musgrove, Deputy Director, Office of Regulatory
Enforcement, U.S. Environmental Protection Agency, USA
• Policies to Resolve Enforcement Cases to Maximize
Environmental Benefit, Pollution Prevention, and Recover
Economic Benefit of Non-Compliance
Speaker* 13: Mr. Antonio Oposa, Jr., former public prosecutor, The Philippines
• Using Coordinated Enforcementto Protect Forests From Illegal
Logging in the Philippines
15:00 -18:00 Theme # 3 Workshops
In small groups, workshop participants explored special topics dealing with Theme # 3:
"Carrots and Sticks" with experts and among themselves. Participants chose their preferred
workshop topic.
3 A Structuring Incentives for Private Sector Compliance.
3B Environmental Crimes and Criminal Enforcement.
3 C Citizen Enforcement.
3D Structuring Financial Consequences in Enforcement: Penalty
Policies, Recovery of Damages, Recovery of Economic Benefit of
Non-Compliance.
3 E Role of Negotiation in Enforcement.
3F Administrative Enforcement Mechanisms: Getting Authority and
Making It Work.
3 G Compliance Schedules and Action Plans: Content, Enforceability
and Use in Compliance and Enforcement.
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CONFERENCE PROGRAM 11
Day Three Day Chair-Mr. PieterVerkerk, InspectorGeneral, VROM
November 18,1998
8:30 - 9:30 Plenary Session - Panel Discussion:
Moderator: Ms. Michele de Nevers, Sector Leader, Europe and Central Asia
The World Bank
Speaker#14: Mr. Antonio Gonzalez Pastora, Director, Central American Commission
on Sustainable Development (CCAD)
• OrganizinglntemationalCooperation:Example
Speaker* 15: Mr. Ken Macken, Acting Manager, Environmental Protection Agency
Ireland
• Creative Financing/Multi-MediaPermitting& Enforcement
Speaker* 16: Dr. George Asiamah, Senior Program Officer, EPA, Ghana
• DecentralizedManagementSystems
Speaker#17: Mr. Christopher Currie, Chief, Enforcement Management Division,
EnviranmentCanada, Canada
* Training Programs
9:30 -12:30 Theme # 4 Workshops
In small groups, workshop participants explored special topics dealing with Theme # 4-
Capacity Building with experts and among themselves. Participantschose theirpreferred
workshoptopic.
4 A Managing Centralized and Decentralized Programs; Achieving
the Right Balance of Roles and Relationships for Key Functions;
Accountability Measures, Compliance Indicators and Reporting.
4 B Budgeting and Financing Environmental Compliance and
Enforcement Programs: How Much Enforcement is Enough.
4 C Training Programs for Compliance Inspectors, Investigators and
Legal Personnel.
4 D Setting Up and Managing Compliance Assistance Programs and
Information Outreach on Regulatory Requirements.
4 E The Science of Enforcement: Setting Up and Financing
Laboratories; Ensuring the Integrity of Sampling and Data
Analysis; Scientific Support for Enforcement.
4 F Government/Municipal/Military: Compliance and Enforcement
Strategies.
4 G Small and Medium Enterprises Compliance and Enforcement
Strategies.
4 H/l Mobile Source Compliance Strategies and Enforcement.
Non-PointSource Compliance and EnforcementStrategies.
4 J Geographic or Resource-Based Compliance and Enforcement
Strategies.
12:30-14:00 Lunch
13:00 -13:30 Keynote: Relationship Between the Legal Arm of Government and the Line
Environmental Agency or Ministry
Ms. Lois Schiffer, Assistant Attorney General for Lands and Natural Resources, USA
14:00 - 17:00 Clinics/Exhibits
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12 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Day Four Day Chair - Mr. Steven Herman, Assistant Administratorfor Enforcement and
Compliance Assurance, USEPA
November 19,1998
8:30 - 9:30 Plenary Session - Panel Discussion:
Moderator Mr. Andreas Gallas, DirectorGeneral, Federal Ministry of the
Environment, Nature Conservation and Nuclear Safety, Germany
. Speaker#18: Mr. Hongjun Zhang, Deputy Director, Legislative Office of Environmental
Protection & Natural Resources, Conservation Committee, People's
Republic of China
• Illegal Shipments: Country Example of Problem and Response
Speaker* 19: Mr. Lai Kurukulasuriya, Chief, Regional Environmental Law, Regional
Oflteefor Asia and the Pacific, UNEP
• Trends in IntemationalEnvironmentalLawandits Enforcement
Speaker* 20: Dr. Kees Boekel, Deputy Regional Inspector, Inspectorate for the
Environment- East, Ministry of Housing, Spatial Planning and the
Environment, The Netherlands
• Enforcement International Environmental Agreements, e.g.,
Hazardous Waste and Ozone Depleting Substances
Speaker* 21: Mr. Earl Devaney, Director, Office of Criminal Enforcement Forensics
and Training, U.S. Environmental Protection Agency, USA
• Environmental Crimes/INTERPOL
9:30 - 12:30 Theme #5 Workshops
In small groups, workshop participants explored special topics dealing with theme # 5:
International Cooperation/ Transboundary with experts and among themselves.
Participantschosetheirpreferredworkshoptopic.
5 A Illegal Transboundary Shipment of (Hazardous) Waste.
5 B Compliance with International Environmental Agreements: Focusing
on Montreal Protocol and CITES: Illegal Shipments of CFC and
Other Ozone Depleting Substances and Illegal Trade in Endangered
Species.
5C Illegal Shipments of Dangerous Chemicals Including Pesticides.
5 D International Enforcement Cooperation to Protect Shared Re-
sources and Prevent Transboundary Pollution.
5 E Collaborative Targeting of Enforcement on an International Scale.
12:30 -14:00 Lunch
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CONFERENCE PROGRAM
•t/i-nn Yc 7c PII•""•*•>*»=«»*•'-•^•i':ws3Tj^te>s5a.«sssa«giH«;j»f:ia
14.00 -15:45 Plenary Session - Panel Discussion:
Moderator:
Europe Panel:
Speaker* 22:
Speaker* 23:
Speaker* 24:
Americas Panel:
Speaker* 25:
Speaker* 26:
Speaker* 27:
Speaker* 28:
Asia Panel:
Speaker* 29:
Speaker* 30:
Speaker* 31:
ire in various stages of development. Plenary sessions
sand accomplishments.
Mr. Jan van den Heuvel, Director, General Policy Affairs, Ministry of
Housing, Spatial Planning and the Environment, The Netherlands
Ms.WattraudPetek
• IMPEL
Ms. Ruta Baskyte
• ECA-INECE
Dr.LadislavMiko
• AC-IMPEL
Ms. Unda Duncan
• North American Working Group/Commission on
Environmental Cooperation
Dr. Marco Antonio Gonzales Pastora
• CCAD
Mr. VincentSweeney
• Carribean Network
Mr. EricDannenmeir
• OAS: Americas Hemispheric Network
Mr. Lai Kurukulasuriya
• ASPA-INECE
Dr.,Aziz Abdul Rasol
• ASEAN
Dr.AnandaRajJoshi
Speaker* 34:
Speaker* 35:
15:45-18:00 Regional Meetings
Speaker* 32: Dr.AdegokeAdegoroye
• Africa Regional Networking Status Report
Speaker* 33: Mr.AmeDalfelt
• Africa - World Bank perspective
Mr. Eugene Shannon
• Africa - Africa Development Bank perspective
Mr. Yasser Sherif
• North Africa and West Asia/Middle East
19:00
iimuftaneousbreakoutsessions. These sessionscontinued in the
6 A Europe (Western Europe, Central and Eastern Europe, and NIS)
6 B Americas (North America, Central America, Caribbean, and South
America)
6C Asia (Asia Pacific and South Asia)
6D Africa and West Asia/MiddleEast
Informal Networking: Strolling Dinner at the Monterey Aquarium
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14 FIFTH' INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Day Five Day Chairs - Mr. Steven Herman, AssistantAdministratorfor Enforcementand
Compliance Assurance, USEPA and Mr. PieterVerkerk, InspectorGeneral,
VROM
November 20,1998
THEME #6 BUILDING kEGlONAl! AND "GLOBAL NETWORKS^Continued)
; ^ " I* ^ < „** " - - -
8:30-12:30 Regional Meetings (Continued)
Facilitated Discussion / simultaneous breakout sessions continued from afternoon of
Day 4.
6 A Europe (Western Europe, Central and Eastern Europe and NIS)
6 B Americas (North America, Central America, Caribbean and South
America)
6 C Asia (Asia Pacific and South Asia)
6 D Africa and West Asia/Middle East
12:30-14:00 Lunch ...
14:00 - 16:00 Plenary Session: Regional Meeting Reports
Presentation of future directions for global and regional networks
Moderator: Mr. Jan van den Heuvel, Director, General Policy Affairs, Ministry of
Housing, Spatial Planning and the Environment, The Netherlands
Speakers selected from the regional meetings presented reports of meeting outcomes.
Speaker* 36: Ms. Susan Hay
• Europe
Speaker* 37: Dr. Marco Antonio Gonzales Pastora
• Americas
Speaker* 38: Mr. Yasser Sherif
• Africa and Middle East
Speaker* 39: Mr. Lai Kurukulasuriya
• Asia
16:00- 17:00 Closing Plenary: CLOSING REMARKS
Mr. Steven Herman, Assistant Administrator, US EPA
Mr. PieterVerkerk, Inspector General, VROM
Adjourn - Conference Evaluations Due
17:00 - 18:00 Closing Reception
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CONFERENCE PROGRAM 15
November 21,1998
Optional site visits arranged by US Environmental Protection Agency:
A Astate-of-theartregionalsewagetreatmentplantandstate-of-the-art
solid waste management landfill and related compliance inspections.
B FortOrd, a former military installation that underwent environmental
remediation and is now used as a junior college.
C A US EPA regional laboratory that analyzes compliance samples.
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16 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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NITZE, WILLIAM 17
WELCOME TO MONTEREY
NITZE, WILLIAM
Assistant Administrator, Office of International Activities, U.S. Environmental Protection
Agency
Thank you very much, Pieter. It is a great pleasure and an honor for me to make
some welcoming remarks at the Fifth International Conference on Environmental
Enforcement and Compliance. I am told, although I did not have the pleasure of attending
your prior meetings, that each meeting has been better than the one that went before I sense
just from being among you here for dinner and breakfast this morning that there is a growing
brother and sisterhood, if you will, of environmental enforcement officials and NGOs and other
experts around the world, which is really building a network of cooperation that is unparalleled
in the history of our work together. It is really a pleasure to welcome you here to this beautiful
place in this state of California, which is one of the environmental leaders if not the
environmental leader, among all of the states in the United States.
We all face a tremendous challenge as environmental officials and as people
interested in furthering the cause of environmental protection. And no where is that challenge
greater than in the area of enforcement.
On my way out to this conference, I happened to buy the latest issue of TIME
magazine. In that issue is an article about subsidies that companies in the United States
have been receiving to locate highly polluting activities in different states of the union solely
for the purpose of job creation. I will just show you, you can go out and get it at your local
news stand, the article. It's entitled "Paying a Price for Polluters." What this article
demonstrates is that even here in the United States where we have achieved a fairly high
standard of living and a relatively advanced industrial structure, there is still this tremendous
pressure for job creation through industrial development. That pressure in many cases
threatens to overwhelm efforts by federal or state or local officials or environmental NGOs
to clean up the environment and prevent pollution.
So, the challenge that we're all here to discuss of effective enforcement is not going
to go away. It is going to continue. It is very much a challenge that Steve Herman and his
colleagues face everyday and that their counterparts at the state and local level face every
day. It is one we're just going to have to continue to address year after year after year
Now I thought I would just say a few words this morning about some of the lessons
if you will, that we have learned and are learning in our work in the office of international
activities to share experience, provide some technical assistance, and generally to cooperate
with all of you and your counterparts in raising standards of environmental protection and
actual environmental performance around the world.
The first challenge that we have found in many, many countries, and this includes
parts of the United States, is to build an enforcement culture. Most countries with which
we deal, including I am sure most of the countries that you come from, have at least in some
cases strong laws and regulations which if they were actually complied with would produce
virtuous environmental results. The problem obviously is that in many cases they are not
enforced and they are not complied with. In some countries, Russia I am going to cite as
a fairly extreme case, you have an overlapping network of environmental standards some
of which are considerably stricter than standards we attempt to enforce in the United States
However just visiting any major city - other perhaps than Moscow or St. Petersburg which
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18 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
are better today - any industrial site, any agricultural site in Russia you understand that these
laws are simply not being enforced. Part of the reason for that is that some of them almost
cannot be enforced because they are inoperable.
Which brings me to the second lesson. That is, you have to design laws from the
beginning in a realistic way so that they are actually enforceable in the particular
circumstances of the country in question. We are indeed working with the Russian
Federation and some of the states and localities there to help them redesign their
environmental laws by in many cases simplifying them, making them less stringent but
making them at least potentially enforceable. One example is in the city of Bolgegrad we
are training local officials in measuring opacity of the smoke coming out of industrial facilities.
Basically the blacker it is, the dirtier it is. Now this sounds very crude but actually it turns
out to be a pretty good benchmark of particulates and other types of air pollution and is
something that they are able to enforce and able to make operable.
Which leads to a third lesson which is in many cases we have found simpler is
better If you can get not only local officials but the enterprises they are attempting to regulate
and the local populace to understand some basic rules and some basic techniques for
enforcing those rules, which leads to actual compliance, that is much better than having a
very complicated and sophisticated set of rules which simply are not being applied at all.
A fourth lesson is the power of information. As I think many of you have heard in
past conferences, we in the United States were totally amazed at the effectiveness of our
community 'Right to Know' law which was passed back in the 1980s. First we were amazed
at the amount of pollution which companies reported as being discharged into the
environment. Then we were amazed at the force that disclosure and the accompanying
embarrassment and in many cases shame had in terms of getting them to reduce that
pollution With respect to toxic chemicals, I do not know the exact statistics, but I would
guess that today of the major categories of toxic chemicals emitted into the environment
that law is responsible for at least a 50% reduction. In many cases the reduction is more
in the neighborhood of 70-80% in emissions. This is a result we simply could not have
achieved through conventional enforcement techniques without public information. We are
working with many countries around the world. We have an active program with Mexico. We
are working with Canada. We are working with many countries further away to help them
strengthen their pollutant release and transfer registry systems so that the public can be
empowered with the kind of information which will allow them to directly or indirectly put
pressure on polluters to reduce their emissions. I think that it is a very important complement
to any enforcement program.
Finally, and this I know is a central theme of this conference and past conferences,
is international enforcement cooperation. I know that we in the United States simply cannot
achieve the results intended by our domestic laws without international cooperation
(particularly laws designed to implement multi-lateral environmental agreements like the
Montreal Protocol on ozone depleting substances or CITES or hopefully when we do pass
implementing legislation of the BASEL Convention on transboundary shipments of hazardous
wastes or our air quality agreement with Canada or the many air quality agreements we've
entered into within the Economic Commission for Europe, and many, many other
agreements). I am very pleased that international cooperation has been advancing at a rapid
pace and has become a high priority for governments in many different parts of the world.
I will give you just one example of our work. We are currently, along with other donor
countries with the GEF (the Global Environmental Facility) and with the World Bank financing
the phase out of CFC, ozone depleting substance production in Russia. It is a very
-------
NITZE, WILLIAM 19
complicated task. There are many different players. It has taken years to put together But
I think finally we will succeed. This will make a major difference in drying up the black market
for illegal freon and other substances in the United States and around the world.
So, we are here engaged in a very, very important enterprise. Really the success
of any program of environmental protection depends on it. Without enforcement you simply
cannot, in the end, achieve the improvement in environmental conditions that you are aiming
for. All of our future experiments, all of ourfuture efforts to make the process of environmental
protection less costly, more effective, more politically acceptable, have to have their foundation
in effective enforcement. This is a theme I know that Steve Herman and others will pick up
on In the United States, you know, we talk about all these reinvention activities and various
voluntary initiatives and partnerships and so forth. Well none of those would be possible or
effective unless they were built on the foundation of strong enforcement.
So welcome to Monterey. I am proud to be among you and I look forward to getting
to know many of you during the course of the conference. Thank you.
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20 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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VERKERK, PIETER 21
WELCOME AND INTRODUCTION TO THE CONFERENCE
VERKERK, PIETER
Inspector General, Inspectorate for the Environment, Ministry of Housing, Spatial
Planning and the Environment, The Netherlands
First of all I will refresh your memory a little bit. The first international meeting on
he enforcement of environmental legislation was held in Utrecht already 8 years ago Since
then we have come a long way fast. After Budapest, Oaxaca, and Chiang Mai, we now find
ourselves in Monterey, but once again in the company of a huge number of participants from
are newcomersCtodTeS ^ international orsanizations. Some already participated but 69%
I consider it a very great pleasure to be here with my colleague Steve Herman the
Assistant Administrator for Enforcement at the US EPA to raise the curtain on S'ffth
conference. I am convinced that this will be another successful conference but leave things
involvement of the Or9anizations
intPrnat *£ VN>.seeM^ to acnieve at this conference? Environmental problems are
Lnfo™nf of V- nottr^°9nize anv borders. This simple message means that
enforcement of environmental legislation should be an international and therefore a trans-
SSS^T 1 T V'°U! conferences we nave focused to a significant extent on putting
forward the knowledge and experience from all organizations forthe benefit of all participants
I ™ ?n, °H Conferf"ce is no different- ^ Chiang Mai we observed that we have reached
network fHhWe f K , pr°ceed.towards furtner development of international enforcement
elaborated ^ thfl H ' ^ n?mal '6VelS and the Executive Planning Committee has
elaborated on these designs since Chiang Mai.
'
.
' the aCtUal '""Plantation and enforcement of environmental
And I'mrk n f th re«9ch> • H°W6Ver' there ™ clear declara«°ns of intent in this field.
And | m thinking of the 6-8 Environment Ministers Summit in Miami in 1997, the enforcement
cp^ultat,on meeting of representatives of the G-8 countries in Washington in 1998 and the
G-8 Summit in Birmingham in 1998 as well. Greater attention needs to be devoted to
compliance and enforcement in political and administrative circles
m2oCeTentr?e?Vir?mental Ie9islation must c°™ to feature more explicitly on
lP f P°"^ a9enda S° 3S l° Create the ^cessary conditions for
n ?" , insPectlon structure in each country. There can be no disputing
/ f conventlons and Protocols on climate, ozone, hazardous waste
Mnnt,CeRS' or,tox'cDcnemical substances - on which agreement was reached in Kyoto
Montreal Basel and Rotterdam - all contribute to a better environment if they are enforced
t N.eth^rlands has a vested interest in the effective implementation and
.
nt1offnvironmental regulations Because the environmental pollution recognizes
f ' ehm1ntJrt'0n and enforcement co^ters distortion of competition and answerl
Une
h er
NnntMtl , SU!rneuS ?°mmunitv- The indicative model from The Netherlands'
Nataonal Institute of Public Health and Environment (the RIVM) also reveals that incomplete
compliance with environmental legislation can lead to shortfalls of more than 20-30% In
!f«LT f e"Tssions reductions in The Netherlands. In other countries this figure may be
B Sl^ntTf " hl9t]er- Ao he m°re reas°n forc°ncentrating ourfull attention on enforcing
environmental leg.slation. Sometimes I et t
o rcng
leg.slation. Sometimes I get the feeling that environmental inspectors are
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22 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
viewed or judged by politicians and the policy sector in general, to be a group of hardliners
only dealing with law and order. Too much is neglected in observing that enforcers play a
dominant role in implementing environmental policy and getting environmental results.
Perhaps we must present ourselves more in this direction by promoting and improving and
perhaps selling our results more effectively to the policy makers. Fortunately many countries
support the idea of working towards regional enforcement networks from the basis of the
international INECE enforcement network. The first new regional meetings have now been
held EGA INECE in Vilnius, Lithuania and ASPA INECE in Bangkok, Thailand, adding to
networks already in existence in North and Central America and Western Europe. They
proved very successful. The written reports of these meetings are available and you will hear
more about them in the course of this conference.
What then is our vision of the future? We will be moving away from international
conferences and enforcement of environmental legislation as we currently know them. We
will move towards regional enforcement networks where countries within a given region
determine the actual content of enforcement of environmental legislation. The existing
channels provided by international organizations will be used to the greatest possible extent.
The United Nations Environment Program (UNEP) has already been involved in the ASPA
INECE Thailand and could also be one of the players to benefit other regional networks. This
vision can be further explored as we work to develop these aspects in the course of this
conference. The members of the Executive Planning Committee are all prepared to assist.
These regional enforcement networks for environmental legislation require backing
in the form of a secretariat capable of providing assistance and support to participants. The
Netherlands is currently considering a request for support of such a secretariat for EGA INECE
in Lithuania. We are convinced that a financial solution in this matter will be forthcoming.
Similar solutions must also be found for other secretariats. This is my sincere hope that
other countries and organizations will wish to participate in setting up these INECE
secretariats and will not only lend their financial support but also their participation to such
projects. .
Apart from these INECE secretariats we are moving towards an Executive Planning
Committee which will stimulate these secretariats, maintain contacts and provide support
where requested but which will also promote development and progress within the networks.
We can then discuss progress with the Executive Planning Committee and key
representatives from the countries participating in these regional enforcement networks at
international enforcement conferences held every two years and on a smaller scale than the
current ones.
Over and above this we can still rely on support from our staff for the Executive
Planning Committee as well as our Internet homepage and the INECE newsletters as well,
as ongoing workgroups on selected topics. As you have heard this is a future vision dealing
with the further international development of enforcement of environmental legislation. Our
vision is a very positive one but it stands or falls by participation in its most active form. I
am convinced that together we can further shape our vision of the INECE future during the
next few days. We will speak again at the end of the conference, and I have the fullest
confidence that by then we'll have made significant progress in the international enforcement
of environmental legislation. The Dutch government has in any event pledged its commitment
to the success of this conference and of those to come.
Ladies and gentlemen, I wish you all a very fruitful conference and a very successful
conference as well. Thank you for your kind attention.
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HERMAN, STEVEN A. 23
OVERVIEW AND VISION: ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT AND INTERNATIONAL NETWORKING
HERMAN, STEVEN A.
Assistant Administrator for the Office of Enforcement and Compliance Assurance U S
Environmental Protection Agency
Thank you Pieter. This is now the third of the five international conferences on
environmental compliance and enforcement at which I have had the pleasure and privilege
of sharing the role of day-chair with my colleague Pieter Verkerk. I could have no better
partner. I also would like to recognize the members of the Executive Planning Committee
and Associates to INECE who have contributed immeasurably to bringing this Conference
about, and also to defining the ambitious program for the first two years of the International
Network for Environmental Compliance and Enforcement.
Let me start by adding my own warm welcome to the United States and to
California. In the past, I have been touched by the graciousness of our hosts at the
conferences m Oaxaca, Mexico and Chiang Mai, Thailand. They set a very high standard
which we in the U.S. are anxious to meet. I have very little doubt that we will succeed if for
no other reason than the quality of the people who are attending this conference You were
all hand picked by our Executive Planning Committee as individuals who can and will make
a positive difference in the lives of your countrymen and women, and also our natural world
You come from over 100 different nations and 30 international organizations; from countries
arge and small, developed and developing. You practice distinct disciplines and professions
We have learned however, that the differences not withstanding, we face similar challenges
and issues and can best achieve our individual and global objectives by collaborating teaching
and learning from each other.
The Steinbeck Forum in which we are seated is named for John Steinbeck a Nobel '
prize winning American author. He wrote a famous novel - Cannery Row- centered around
the sardine canneries which once thrived in Monterey. These waters, once teeming with
sardines, were decimated by the pollution and overfishing. The economy of the area was
wrecked. However, you look around today and you see a thriving community whose major
industry is tourism. Tourism is dependent on a clean and healthy environment This is a
community that learned a lesson. For those of you who will be joining us on the site visits
on Saturday, you can witness a community committed to state of the art control of both
sewage wastewater and solid waste. And the Monterey Aquarium — which you will all get
to see on Thursday evening —is associated with a major global effort to study and preserve
marine life.
Our Executive Planning Committee members specifically charged Pieter Verkerk
and me with the task of opening this Conference with an overview of where we have been and
a vision of where we are going in environmental compliance and enforcement and the role
an entity such as INECE plays in f:his effort.
First, of course, it is important to remind ourselves of why building national and
international enforcement and compliance capacity is so important to environmental
protection. As Bill Nitze said, virtually all of our nations have laws; some are very strong and
very protective of human health and the environment. However, without effective enforcement
the laws are worth little more than the pages they are written on. In fact, without enforcement
laws are an empty promise to our citizens who look to the law to protect them
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24 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Study after study has shown that the primary motivation for industry to comply with
anti-pollution laws is enforcement - fear of being fined, fear of being exposed to the public
as a polluter - as a dirty company, and in the case of individuals - fear of being put in prison.
With strong, aggressive and fair enforcement, other approaches such as voluntary programs
and economic incentives can also be employed. But, they are no substitute for effective
enforcement as the foundation upon which environmental protection can be realized.
A fair and effective enforcement program will serve several purposes:
1) It will punish those who do not comply with the law.
2) It will require cleanup of polluted resources and it will assure repair of the
damage caused by the pollution.
3) It will deter those who may be thinking of breaking the law - of cutting corners.
4) It will ensure that those industries and businesses who obey the law are not
put at a competitive disadvantage to those who violate the law; put another way,
effective enforcement assures that polluters do not profit by their non-
compliance.
5) It will prevent the creation of pollution havens.
6) Enforcement will ensure the protection of human health and the environment;
and
7) It will encourage healthy and sustainable national and international economies.
Enforcement assures us that individuals and companies will be held publicly
accountable for their behavior. They will pay the price of their actions. Polluting cannot be
permitted to be another cost of doing business.
1 NETWORKING AT ALL LEVELS
Environmental enforcement requires many different disciplines and types of
organizations. At the national levejl, we must include not just environmental agencies, but
also prosecutors, police and sector ministries, justice officials, customs officials and trained
judges to implement environmental policy issues. Collaboration is also needed among levels
of government. In many nations, enforcement is highly decentralized. Without effective
communication and cooperation between local institutions and a national program dedicated
to environmental compliance and enforcement, national laws are likely to be unevenly, and
thus ineffectively, enforced. This has ramifications locally, nationally, regionally and globally.
Many of you are constrained in your efforts to achieve compliance because
authorities and functions are spread out among so many ministries, departments, agencies,
and regions, that, in a sense, no one is in charge or responsible. Authority is so dispersed
that effective action is stymied. During this conference you will hear from colleagues about
how they have used in-country networks at all levels to make rational even the most difficult
organizational settings so that environmental compliance and enforcement happens.
Whether it is the United States, the Netherlands, Ghana, Poland or Vietnam, there are ways
to overcome these barriers. There are no perfect solutions, but there are ways to move
ahead.
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HERMAN, STEVEN A. 25
2 PUBLIC ACCOUNTABILITY AND PUBLIC PARTICIPATION IN
ENFORCEMENT
Another major aspect of the vision for successful environmental compliance is public
access to information and citizen participation in enforcement. We cannot underestimate
the power of public knowledge of non-compliance and of facility performance to influence
environmental performance in the business community. We will build on the principles
articulated by participants at the Fourth International Conference. We know from many
experiences and the papers contributed by our NGO colleagues from Ukraine to Nepal to
the Americas that we have much work to do to make new international agreements on public
access to information and to justice a reality. The new INECE document, Citizen
Enforcement: Tools for Effective Participation, is also designed to facilitate progress
Public information - and easy access to it — are needed for both effective citizen
enforcement and to motivate business to comply with the law in the first instance In the
united States we have taken unprecedented steps to make information about facility
compliance and toxics release to the environment available through the Internet And we
nave seen substantial performance improvement. But we need to continue to seek to improve
the form, content, reliability and availability of such reports to make them most effective.
3 NEED FOR FIRM, FAIR AND VISIBLE ENFORCEMENT
A third major aspect of the vision, as I have already noted, is the need to take firm
and visible legal enforcement actions against violators. This is an essential prerequisite that
never ceases, regardless of the state of a country's development. Enforcement must be
pursued and maintained, but the levels and focus will always be in a dynamic state of change
We see new evidence of this in the reports from Peter Krahn in Canada in the Proceedings
where he documents environmental gains resulting from using enforcement with promotion
of, rather than exclusive reliance on, voluntary measures alone. We also see this evidenced
m the numbers reported by Pieter Verkerk on the limitations of the voluntary industry
covenants the Dutch have tried.
4 FINDING THE RIGHT BALANCE OF "CARROTS AND STICKS"
A fourth and closely related part of the vision is a broad recognition of the need to
balance the carrots and the sticks - not choosing one approach over another We hear in
some quarters that we should adopt and rely upon the voluntary approach. To this I say
look around you. In most areas of the world we have concrete evidence of what voluntary
approaches without enforcement has given us. Used smartly, strong enforcement voluntary
programs, and incentives will strengthen and compliment each other. The challenge is to
find the right balance and sequence. The need for varying approaches is particularly apparent
as we struggle with how to gain compliance at numerous small and medium sized
enterprises. There are excellent examples for us in Sonoma County, California in the Proper
Program of Indonesia, and in the environmental audit program of Mexico.
Similarly, we have sometimes seen a reluctance to enforce because of fear of the
costs of compliance. First, we must be always mindful of the larger long-term cost of tolerating
non-compliance. We also know that inaction and delay leads to more inaction and delay
Countries like Poland and the Czech Republic and Egypt have taken great pains to construct
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26 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
new enforcement authorities and policies which respond to the need for creative solutions
which provide structured, affordable compliance schedules. The United States has developed
several enforcement policies which preserve the principle of the polluter paying and not gaining
an economic benefit, but which also advance opportunities to prevent pollution and correct
environmental damage.
5 HARNESSING NEW TECHNOLOGIES AND APPROACHESTO DETECT
VIOLATIONS AND MONITOR COMPLIANCE
As we look to the future of environmental compliance and enforcement, we cannot
overlook the possibilities opened to us by new technologies for getting more accurate, more
comprehensive and more real time monitoring information. We can be inspired by Australia's
creative use of satellite technology to monitor trucks transporting hazardous waste and by
some of the real time monitoring relays in Japan and elsewhere. Remote sensing is also
being used to help protect wilderness areas and sensitive ecosystems from illegal activities.
6 ACHIEVINGTHE POTENTIAL OF ENVIRONMENTAL MANAGEMENT
SYSTEMS
A sixth aspect of the vision is fostering and harnessing the promise of internal
environmental management systems, self-auditing and responsible care programs. We
see increasing international focus on environmental management systems for environmental
compliance and prevention of environmental problems. However, we must never forget that
having a system is not a substitute for actually complying with the law. It is the environmental
result that matters, not the "system."
7 ENVIRONMENTAL CRIME
Finally, a significant part of our vision for the future is creating a seamless web to
stop environmental crime and to work together to combat international crime which violates
national law and environmental agreements. Our national laws give us the ability to cooperate
directly with one another in investigations and prosecutions, and international treaties
mandate that we do so. Here we can build on existing law enforcement networks.
We have recently seen the fight against environmental crime taken, up by national
leaders and stressed as a priority in the conduct of foreign affairs. In the last year, the G-
8 Group of Nations' Leaders and Environmental Ministers have directed their enforcement
officials to collaborate more closely in detecting and prosecuting criminal violations of
environmental law and in establishing more effective ties to traditional law enforcement. This
last summer, the Council of Europe passed the Convention on the use of Criminal Law to
Protect the Environment and just last month, our colleague from Mexico, Antonio Azuela
hosted an Iberoamericano Congress on environmental crime. INTERPOL's organized crime
group is now interested in taking up this problem.
Now, it is time for us to go to work. Your mission is truly a critical one. I wish you
all well. Participate fully over the next five days and we will surely succeed in our efforts to
make our world a better, healthier, more prosperous and beautiful place to live. Thank you
very much.
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BROWNER, CAROL 27
KEYNOTE: ENVIRONMENTAL. ENFORCEMENT AS A CORNERSTONE TO
A NEW GENERATION OF ENVIRONMENTAL PROTECTION
BROWNER, CAROL M.
Administrator, Environmental Protection Agency, 401 M Street SW MC 11 01
Washington, DC 20460
Thank you Steve, i am delighted to be here. It is great to see so many of you from
so many different parts of the world.
.
I,™*, i?f COU"tries are quite different ~ different in ^ze, culture, language, and pace of
growth. But we share a common desire: To have a healthy environment, healthy people as
well as a healthy economy. '
These things are often seen at odds — environmental protection pitted against
econormc growth. In the U.S., this was certainly the case a few decades aga We needed
strong laws to protect our water, land, and air.
nrn * JWSnty five/f ars a9°- we actually had rivers catching fire in the U.S. That crisis
prompted passage of the Clean Water Act. We found barrels of toxic chemicals buried under
f * Y°,rK ~ ai? that SpUrred paSSage Of our nation>s toxic waste c'eanup
Under these laws, we have made great progress. By any measure, our rivers are
nonn'th ?f °, ancT't°Ur land freer °f toxic waste' But we a" know our work is not done
— not in the United States, not in any country in the world.
Today we face a new set of challenges.
!?rfWB-oontrol water P°\M\on from urban and agricultural runoff
S' ' am talking about air and water Portion that crosses the
,*aii Prefde,nt Clint°n and Vice Presiderrt G°re believe that we can meet all these
chaHenges if we keep a few principles in mind: building strong partnerships, finding common-
sense, cost-effective strategies, ensuring a healthy economy and a healthy environment -
and providing tough enforcement of our nation's environmental laws
Tnese are the tenets of a new generation of environmental and public health
protection, and they lie at the core of everything we do to safeguard the American people
and to meet our international commitments on the environment.
This Administration has drawn from a variety of tools to get the job done-
in *h *• F!rS!' WS T bU'lding PartnershiPs with industry to prevenf pollution before it happens
in the first place As just one example, we have an agreement with the auto industry for
cleaner cars — 70 percent cleaner cars, which will be in showrooms around the country by
end of next year. ' *
PartnersniPs with 5,000 U.S. organizations and businesses -
some of the biggest companies in the country -to use energy more efficiently.
? 'n i '„ le Partnersh'P Programs together prevented the release of nearly
" the same time- these measures saved
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28 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Second, we are encouraging companies to not just comply with the law, but to go
beyond compliance, by preventing pollution and reducing use of toxic chemicals — ways
that can also increase productivity and increase competitiveness.
Third, we are using market-based incentives—to spur industry to develop even better
pollution-reducing strategies. Emissions trading is a great example. This is where we place
a limit on overall toxic emissions arid then pollution reductions are traded on the open market.
We have had great success with emissions trading in our acid rain program — where
we are making significant reductions in the pollution that causes acid rain, and the costs
of compliance are far lower than anyone had predicted. And we have recommended a similar
program to 27 eastern and southern states and the District of Columbia as a way to reduce
emissions of smog-forming nitrogen oxides and meet the public health clean air standards.
Fourth, we are offering unprecedented compliance assistance to small businesses
— nine centers that help industries — transportation, painting and coatings, local
governments, printing, and others — to understand and comply with environmental
requirements as easily and cost-effectively as possible.
We have a new self-audit policy that says to companies — if you voluntarily identify,
disclose and correct violations we will reduce or waive penalties — a great way to provide
cost-effective incentives for companies to protect the air, water and land. Since 1996, more
than 1600 facilities have voluntarily disclosed and corrected violations.
Indeed, this Administration, every step of the way, is committed to flexible, cost-
effective, common-sense strategies that work for business, work for public health and work
for the environment.
But we cannot continue our progress without tough, comprehensive enforcement
of our nation's environmental laws. It is the foundation of all we do to protect our air, water,
and land. Strong enforcement is a red light for would-be polluters. It provides incentive for
companies to participate in our voluntary programs. It ensures that polluters are held
accountable for jeopardizing public health and the environment.
I suspect most of you would agree. A recent case sums up exactly why we need
strong enforcement hand in hand with flexibility and voluntary measures. Last month, we
announced one of the largest enforcement cases in history — a settlement with the seven
leading manufacturers of diesel engines. _ .
The companies used illegal devices that allow the engines to pass EPA s emissions
tests in the laboratory, but turn off pollution control equipment under normal driving conditions
— and all to cut a few corners on costs.
These devices not only bypassed emissions controls, they jeopardized public health
and the environment.
Our action addressed the entire industry together, rather than company by company
— so that we could level the playing field. No company should have a competitive advantage
over the others. We need strong, tough, comprehensive enforcement to ensure that every
business, every company, every industry plays by the same rules.
What applies locally, also applies globally. We must level the international playing
field No country should have a competitive advantage over another through violation of its
domestic and international commitments to environmental and public health protection.
Today, we can exchange information between countries with a simple click of a
computer mouse. We exchange billions of dollars every day over phone lines and through
. computers. Unfortunately, we also exchange pollution.
That is why it has become ever more important for us to work together. Pollution
doesn't stop at the border. Environmental crimes do not stop at the border. Neither should
our efforts to protect citizens at home and abroad.
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BROWNER, CAROL 29
chinmon^6 5^e ^ grea[ P"*"688 ^^^ Together, with Mexico, we've stopped illegal
shipments of hazardous waste over our borders. We have seized millions of pounds of
1SSSESS nT"?* '"I0 thS U'S- We are Sharin9 with our citizens information
about toxic releases and transfers of toxic materials between Mexico, Canada and the U S
SpdeinC°metH P Wlt? f3^6 S°'Uti0nS f°r °Ur Shared borders' As one exa<"P'e. we
S™ f^81™"1* of B" environmental violation a provision that the company pay for
environmental improvements in a company on the other side of the border
Together, we are making great progress, and all the while respecting each countries-
sovereignty, each countries' independence. countries
But we can do more. We must continue to share information about environmental
criminals, hazardous waste tracking, and companies that violate environmental laws We
TrlS °Uf expertise' °ur ski!la ~ so that we can do an even better job of protecting
rnnovS^ Sn.n?ret' fh H ^gi2g P°"UterS t0 jUStiC6' And We must work to3e^ to ™
mnovative solutions to the difficult environmental and public health challenges we all face
I congratulate you ail for coming together to share your experiences and find ways
and wValn^ ufof T * £"** ^ ^ WS a" breathe ih* "-^ we all drink and thl
rnmrn^fn ^ * ^^^ *V*T mOPe C'°Sely linked j" this WOr|d Of high-tech
S3SS?5? 3h 9-H Wln9 Pf Uti°n Pr°blemS'We mUSt m°Ve forward arm in arm- Boulder
to shoulder, side by side. Our families and our children depend on it
Thank you.
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30 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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THEME 1: MAKING IT HAPPEN 31
THEME #1:
MAKING IT HAPPEN: APPLYING THE PRINCIPLES OF
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Moving from principles to practice takes time and often some driving force. Programs evolve
at their own pace responding to both domestic and international commitments to environmental
protection, demands of fair and free trade, public pressure, market forces, crises and other
opportunities to garner support for building and implementing compliance and enforcement
programs. The Fourth International Conference opened with an exploration of driving forces
challenges and impediments to effective environmental compliance and enforcement This
Fifth International Conference focused on how different country officials and NGOs in diverse
situations have "made it happen".
Papers and plenary session speeches for Theme 1 addressed the following issues:
Genesis of the program, what precipitated its development; the driving forces
that gave rise to a decision to create or enhance an environmental compliance/
enforcement program or to respond to particular noncompliance problems.
Particular challenges including issues such as economic and political
uncertainty, level of support for environment, tradition or lack of tradition of
enforcement and compliance, limitations on availability of human resources with
necessary skills and experience in the field.
Evolution of the program: organization, functions, financing, training: issues that
arose in developing or enhancing a program, options considered/selected.
Organization of the program: hierarchy, levels of government, roles and
responsibilities including, as appropriate, information on the:
- overall status of laws, regulations and permits to establish enforceable
requirements;
- plans or programs to promote compliance;
- mechanisms to establish priorities and what they are;
- how the country monitors compliance:
Inspection program: multi-media and/or single program focus,
training and targeting of government inspection activity;
Use of source self-monitoring, record-keeping and reporting;
- enforcement response authorities and how they are used;
- public role in enforcement;
- accountability and measures of success;
- communications; and
- areas in which progress is needed.
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32 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
15. Summary of Theme #1 Panel Discussion, Moderator: P. Leinster,
Rapporteur. J.A. Semones •••' 33
16. Launching Enforcement Programs Through Compliance Action Plans, Sherif,
Yasser 37
17. Institutional Reform through Judicial Activism, Saldanha, MichaelF 67
18. Making it Happen: The Evolution of Pulp and Paper Mill Compliance in British
Columbia, Bircher, Nancy • 73
19. Public Participation and Environmental Compliance and Enforcement in
Cambodia, Sophy, Mak and Dararath.Yem 79
20. TheU.S. Experience with the Toxics Release Inventory: An Important Tool to
Identify Potential Risks to the Public and to Protect Environmental Health,
Walker, MichaelJ. and Marvin, Thomas C 83
21. Environmental Enforcement in the Czech Republic: The EU Pre-Accession
Phase, Miko, Ladislav; Cfzkova, Helena and Kruzikova, Eva 117
22. Enforcement of Environmental Laws, Damdin, Tserandash and
Batsukh, Bolormaa • 125
23. The General Environmental Law of the Republic of Panama,
Hernandez Virviescas, Marco Julio • 129
24. See also Criminal Law and the Protection of the Environment in Brazil,
Benjamin, Antonio H.V. 237
25. See also Cooperation between Levy-Inspectors and Enforcement Inspectors:
A More Effective Way of Enforcement, Steinmetz, Alex H. Z. 401
Papers 1-14 for Theme #1 and a list of related papers from other International workshop
and Conference Proceedings are in Volume 1
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THEME #1 PANEL DISCUSSION: MAKING IT HAPPEN 33
SUMMARY OF PLENARY SESSION #1: MAKING IT HAPPEN - APPLYING
THE PRINCIPLES OF ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT
Moderator: Paul Leinster
Rapporteur: Jo Ann Sernones
1 INTRODUCTION
Moving from principles to practice takes time and often some driving force
Programs evolve at their own pace responding to both domestic and international
commitments to environmental protection, demands of fair and free trade public
pressure, market forces, crises, and other opportunities to garner support for building
and implementing compliance and enforcement programs. The Fifth International
Conference opened with an exploration of driving forces, challenges, and impediments to
making effective environmental compliance and enforcement programs happen.
2 PRESENTATIONS
Mr. Yassar Sherif, Director, Egyptian Environmental Affairs Agency Egypt
discussed a new environmental management tool that was piloted in Egypt the '
Compliance Action Plan (CAP). The CAP was initiated as a cooperative effort to address
special industry needs at the end of a three year grace period for complying with Law 4
of 1994, Egypt's most recent environmental law. While the grace period had been
granted to allow existing companies to come into compliance, it became clear that the
majority of the regulated community would still be non-compliant by the end of that
period (February 1998). Companies that developed and submitted a CAP could be
granted a further two year extension by demonstrating three things: the actions taken
and progress achieved towards compliance and supported by documentation; the state
of compliance expected by February 1998; and the activities planned to achieve
compliance by February 2000. Commitments to specific actions were to be reflected in
a clear implementation schedule and progress reporting; the identification of sources of
financing for compliance actions; and the establishment of a company CAP
implementation task force with clear authorities and responsibilities. While the concept
of the CAP is a good one, its implementation was hampered by tight time constraints
scarce human and material resources, and weak political support. However the tool has
been successfully tested, proven its usefulness and versatility and is now a standard
component in environmental management courses for industry.
Justice Michael F. Saldanha, Karnataka High Court, Bangalore, India,
discussed the role of the judiciary in achieving environmental reform through judicial
activism. At the end of 1998 a critical audit in India indicated that environmental
enforcement levels are low because the Courts have been playing a minimal role The
subordinate Courts which deal with environmental transgressions have "failed miserably"
in achieving respect for the laws or in creating fear of any consequences for breaking it
Judges have been criticized for levying "flea-bite" sentences. While there has been some
deterrence in punishing environmental offenders, there are two other important means
namely the power to prohibit and the power to direct, are two of the quickest and most
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34 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
effective means and need to be used more frequently. Compliance will be forthcoming
only when the message goes out from the Courts that it is no longer safer or cheaper to
break the law than to obey it. Concrete steps toward ensuring judicial activism include:
a well defined program aimed at providing Judges with environmental compliance
literature; a sustained media campaign directed toward bringing home the message that
the Courts and Judges will intervene in environmental enforcement efforts; and an
immediate directive from the Chief Justice of India that a Green Bench be set up in the
Supreme Court and in every high Court to handle environmental cases expeditiously and
efficiently. , .
Mr Armando Shalders Neto, Director of Environmental Pollution Control,
Companhia deTecnologia de Saneamento Ambiental (CETESBE), Brazil discussed the
broad program goal in San Paulo State, Brazil -- which has about 40% of Brazil's
population's industrial base pursuing enforcement efforts but also promoting pollution
prevention For many years, CETESBE has implemented a strong traditional
enforcement program with inspections and fines. Now, pollution prevention is an
expectation as well.
Ms. Nancy Bircher, Director, Ministry of Environment, Lands and Parks, Province
of British Columbia, Canada, discussed how compliance with environmental law by British
Columbia pulp and paper mills has evolved through four distinct phases. Each phase has
been driven by growing public awareness of environmental issues and government response
to public demand. Phase 1 was characterized by low public awareness, almost no regulation,
and even less enforcement. The industry was free to grow and operate, unencumbered by
environmental concerns. This phase was characterized as one where the British Columbia
government spoke softly to the pulp and paper industry but carried no stick to speak of In
Phase 2 growing public awareness of the health hazards of pollution drove government to
set emission standards. Still, no significant enforcement was carried out and industry
complied with the law at its discretion. This phase was characterized as one where
government had a stick but didn't use it. In Phase 3, the public demanded and government
delivered tighter emission standards and tough enforcement. Industry at first resisted and
paid dearly in fines which finally led to improved compliance. The turning point in industry
compliance occurred during this phase when the government implemented an aggressive
enforcement program. This phase was characterized as one where speaking loudly and using
its big stick government finally got industry's attention. In Phase 4, the industry is
substantially in compliance with stringent emission standards, the public continues to press
for a cleaner environment and the government encourages industry to move' up the pipe to
a new environmental management regime. This phase was characterized as one where the
government is back to speaking softly to industry but is carrying a big stick in plain view.
Ms Cheryl Wasserman, Associate Director for Policy Analysis in U.S.
Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Office
of Federal Activities, presented an overview of the "Principles of Environmental Compliance
and Enforcement." Ms. Wasserman described in very clear and visual way what these
Principles are and how they apply to everyone. She provided some historical background
on the genesis of the Principles, defined key terms, and she described the basis and context
for the principles — particularly the range of motivations that must be tapped to change human
behavior Ms. Wasserman introduced the framework including, ensuring the enforceability
of requirements, promoting compliance, monitoring compliance, responding to violations,
defining clear roles and responsibilities for dedicated institutions for environmental compliance
and enforcement and establshing management accountability and evaluation of results. The
presentation included international examples of country strategies for addressing eacr
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THEME #1 PANEL DISCUSSION: MAKING IT HAPPEN 35
element in the framework and for strategically pulling together "carrots" and "sticks" in the
most effective way. She stressed that "The Principles" should not be seen as a model but
rather as a point of departure from which any nation or locality may develop or enhance their
own unique compliance and enforcement program or strategy in any legal, social or cultural
ssttincj,
3 DISCUSSION
In response to a question about the level of public participation regarding the
Compliance Action Plan (CAP) pilot, Mr. Sherif said that public participation in decision
making is not the norm in Egypt, even in issues less complex than industrial pollution
However, it was considered essential that industry inform the public of its efforts to
comply, and in retrospect, the proposed model should have been made a public
document. Mr. Sherif explained that the public was not involved in the compliance
action plan although these plans had to be accessible to the public. There are of the
moment 500 compliance action plans. Press was not amused by a grace period for
companies that have been polluting for ages.
When asked how judges can be re-educated toward environmental issues in
India, Justice Saldanha said that an environmental law institute has been started for this
purpose. He said that although the judiciary has shown a high degree of resistance to
date the institute is beginning to generate enthusiasm to give priority to environmental
matters. Also, the media is very sensitive to environmental issues and is highlighting
every instance where there has been significant and worthwhile Judicial intervention
M ou °ne questioner wanted to know if there were any voluntary programs in Brazil
Mr. Shalders Neto said that there are a few pilot voluntary projects which started with
the textile sector and now include the metals sector. These pilots are challenging
industry to identify ways to avoid, reduce, and eliminate pollution at source rather than
treating or containing it after it's been created. Through voluntary efforts, companies
incorporate pollution prevention in their business plans and develop stronger ties to the
communities in which they operate.
Another questioner asked how fines were developed in Canada. Ms Bircher
said that the government had to be convinced, and that strong public outcry helped
Awareness of public health hazards grew with the closures of commercial fisheries in
the vicinity of pulp mills, announcements of consumption advisories fora number of
coastal and inland waters, and the discovery of dioxins and furans in the marine
environment. Also, environmental non-governmental organizations were effective at
communicating public concern to government and back to the general public This
helped increase the maximum daily fine from $50,000 in 1982 to $1 million ($3 million for
intentional damage) in 1989.
4 CONCLUSION
Environmental pollution knows no borders. Despite many differences between
our countries, we all face tremendous challenges to build an enforcement presence and
to design laws in a realistic manner so that they are enforceable. Whether its striving to
establish a compliance culture in Egypt, reorienting the judiciary to environmental
enforcement in India, promoting pollution prevention in Brazil, or balancing the use of
carrots and sticks" in Canada, we agree that enforcement plays a critical role in
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36 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
achieving environmental results. And we agree that as we move down the path of
improving environmental compliance, it's the solutions, not the systems, that are
important.
• The presentations and the conclusions showed the different driving forces. It could
be best concluded as done by Ms. Nancy Bircher who cited Theodore Roosevelt, " Speak
softly but carry a big stick."
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SHERIF, YASSER 37
™* ENFORCEMENT PROGRAMS THROUGH COMPLIANCE
ACTION PLANS
SHERIF, YASSER
" En<"ronmental Mairs A9ency'3a Misr Heiwan
SUMMARY
inri,,.fn, nJ i ^ 2 "^ ded 4° ihe environmental management scene of Egyptian
industry, namely the Compliance Action Plan. The tool has been developed to address the
sPec,al needs of the end of the 3-year grace period of Law 4 of 1 994 Egypt's mwrt recent
environmental law. The grace period has been granted to allow existing9estabSents a
° S 'SSUanCe ° C°mply With itS recluirernents. However, it has become clear tha
community wl" sti" be non-compliant by the end
the line int Comp!iarice Action Plan has been to shift »e social focus from
o shSr ?.n? hi pepomP'yr'a a"d the non-complying groups of the regulated community
LtufpS it L9 °n a m°re dynami° and meanin9™. given the state of compliance,
feature which is the senousness of the establishment in moving towards compliance
hrtwoon if ComP"f ce Ac!ion Plan thus addressed the threat of an unproductive deadlock
Jfr± V regula*ors and the regulated. However, it is also a typical case of a threat
two Par5e°san °PP°rtUnity to establish a more "operative interaction pattern between the
and man^th^SC f nv!ro"men^1 Affairs A9encV has developed a system to introduce
fmniH ft /£ ' Unfortunate|y. major stumbling blocks have prevented the
mplementat.on of the system as designed. Nevertheless, the introduction of this tool had
major repercussions on the different aspects of environmental management of industry in
Egypt, some of which will still be unfolding for the next few years. '"uusiry in
1 THE CONTEXT
1.1 Law 4 of 1994
V™9 ^b^e °f the most recent E9yptlan environmental law in three
^SSS! sessions' ft.T finally issued in January 1 "4 and became known
, f environmental laws preceded this one whose original concept was
f n comP|ement tnem u"der ^e umbrella law. However, the approach was
watered down during the long debate to complementarity only rather than integration
the EavnS; ™ f^ Int'oduced a number of new features in environmental management in
and reauEnTpr Environmental 'mpact Assessment, hazardous waste management
a few 9u S?he V t p°m'?- mCf ntlV6S and regulated com™nity self-monitoring just to count
wlr^'real ^ h tW'8" T *°, TegUl*e *" emissi°ns and ambient Conditions, which
were regulated by other lower level regulations such as ministerial decrees. It is also the
first law to address marine pollution in an integrated manner from both sea-based and land-
based sources. It addresses a wide range of other issues from protection of species to
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38 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
vehicle emissions and contingency planning for environmental disasters. It is, however, only
a part of a wider arsenal of environmental laws, managed by a wide group of regulators, to
which establishments are subjected.
Law 4 of 1994, re-established the Egyptian Environmental Affairs Agency, created
by Presidential Decree in 1982, as the national authority responsible for environmental policy
and planning. However, the law did not give the Egyptian Environmental Affairs Agency full
executive authority for the implementation of its requirements, but established it as a core
agency to manage the environmental agenda in coordination with other "concerned
administrative agencies". These concerned agencies, depending on the case, may be any
of the ministries, authorities, or the different levels of local administration.
1.2 The State of Environmental Compliance
Earlier environmental laws have not had a bright record of compliance. For example,
compliance with one of the major laws, Law 48 of 1982 concerning the protection of the Nile
and water channels from pollution, was still not the rule 12 years later when Law 4 of 1994
was issued. However, movement had already started towards compliance with the
requirements of this law and others. Its pace has also increased after 1994, although mainly
limited to larger establishments.
Given these conditions, and because, obviously, laws do not create social order
(environmental laws are no exception), Law 4 of 1994 has granted the establishments existing
at the time it was issued a three year grace period starting from the date its executive
regulation are issued (February 1995) to comply with its requirements. This grace period
was not only a chance for establishments to comply, but also and more importantly, a chance
for the regulators to introduce the elements of a social order conducive to the enforcement
of the law after this period has elapsed. In fact, it is impractical to enforce a law that does
not reflect and is not supported by a social trend. A critical mass of law abiders is a
precondition for efficient enforcement.
The question became how could such a critical mass be created.
1.2.1 The Focus on Industry of the Egyptian Environmental Affairs Agency
The poor compliance situation applies to all sectors. Hotels and resorts in the
tourism sector, hospitals and clinics in the health sector, municipal services such as solid
waste disposal sites and wastewater treatment plants among others were far from the
requirements of the law. All these sectors, and others, have been the subject of the Egyptian
Environmental Affairs Agency initiatives, even before the issuance of Law 4/94, to increase
their level of compliance in preparation for an eventual enforcement of the law.
The industry sector has seen a higher level of activity. No records are kept to indicate
whether a conscious institutional decision was taken to focus on this sector. In all likelihood,
it could have been the result of the efforts of a small active group coupled with a larger scope
of opportunities to improve performance which allowed for an incremental evolution of this
Egyptian Environmental Affairs Agency focus.
The Egyptian Environmental Affairs Agency addressed the industrial compliance
question though a number of venues. First, a substantial portion of industrial pollution could
be dealt with by instituting good operational practices at no or low cost or through
environmental improvements with very short pay back periods. Accordingly, the Egyptian
Environmental Affairs Agency has established in 1994 the National Industrial Pollutior
Prevention Program; a program dedicated to the promotion of feasible and economically
desirable interventions. The program has taken a sectorial approach to industry, and startec
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SHERIF, YASSER 39
its activities in the largest sectors of Egyptian industry (Food and Textiles), but failed to
expand its scope due to financial constraints. Moreover, the Egyptian Environmental Affairs
Agency has attracted international financing to support major investments needed to address
industrial pollution that could not be prevented through financially viable interventions. In
parallel, the Egyptian Environmental Affairs Agency was building its own internal capacity
in preparation for the end of the grace period, including human resources as well as a network
of regional laboratories to support inspections.
1 -2.2 Effects on Compliance Levels
The Egyptian Environmental Affairs Agency plans had a minimal effect on the level
of industrial compliance at the end of the grace period. Operational and procedural delays
resulted mainly from the fact that almost all activities relied on international financing. It is
only in 1998, that a part of the projects that should have had a demonstration value for the
industrial community is starting to materialize. Another major part of the Egyptian
Environmental Affairs Agency planned interventions will only see the light at the end of 1998
or early 1999. These will still be useful, but rather late for the grace period, that ended in
February 1998.
Nevertheless, the Egyptian Environmental Affairs Agency promotion activities created
a higher awareness in industrial leadership that environmental and economic objectives are
not always in contradiction; there is a long way to go where they are in consonance. This
has contributed to start the environmental transition of Egyptian industry.
A number of other factors had contributed to triggering this transition, including:
• Enforcement efforts of municipalities and other regulatory agencies, as well
as NGO's, academics and media increasing interest in the issue.
The increase in energy prices, coupled with an increase in exploited resources
of natural gas allowing the transfer to cleaner fuels.
Large state investments in infrastructure and especially sewerage systems
(networks and treatment plants) have allowed industry effluents to be transferred
from Law 48/82 regulations (discharges to the water ways) toLaw 93/62
regulations (discharges to the sewer system) with milder standards, thus
making the required Investments more affordable to industry.
Developments on the international level (both material and intellectual) of
cleaner technology were available to industry.
Exporters also experience other factors such as the development of legal
requirements in importing countries, and the ISO 14000, evolving as the de-
facto standard in industry.
1.3 The Challenge
The Specter of Law 4 of 1994 having the normal track record of enforcement was
hanging above the Egyptian Environmental Affairs Agency's head in the Summer of 1996,
18 months before the end of the grace period. It was clear that only a small portion of
industrial establishments would be complying with the requirements at the end of the grace
period1.
One of the major factors for the successful enforcement of the law was missing.
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1.3.1 Contextual Constraints
The obvious line of action to be considered was to expedite the implementation of
the Egyptian Environmental Affairs Agency's initiatives to increase the level of compliance.
However, when other contextual conditions are taken into account, the challenge was bigger.
The "environmental transition " sought in the next few years should take place in the context
of multiple economic, political and social transitions witnessed by Egyptian society.
Structural uncertainties faced by Egyptian industry include privatization, relocation, as well
a more open trade market. These were added to the sheer size of investments needed to
achieve compliance for a number of establishments. A few other factors have to be accepted
as given:
Addressing all environmental problems of Egyptian industry at once is beyond
all currently allocated human and financial resources at the national level,
whether from the regulator or the regulated sides.
The capacity of industrial establishments to react to sudden pressure is
questionable. This is not only because of financial constraints in most of the
cases, but also because of technical engineering constraints.
Only a sketchy characterization of the industrial scene concerning
environmental performance is possible. Major sources of compliance
information (Self-monitoring and reporting, inspections, citizen complaints and
ambient monitoring) are all inadequately functioning, if not non-existent.
However, the current state of knowledge allowed for the establishment of a
framework for action.
1.3.2 Short-term Objectives
Given the contextual conditions, it seemed clear that achieving compliance is not
possible in the near future for the larger portion of the industrial community. While keeping
the ultimate objective, which is to improve the environmental conditions for the Egyptian
people, in mind realistic short-term objectives had to be reconsidered. It was internally
agreed in the Egyptian Environmental Affairs Agency that the realistic objective of the next
period should be limited to establishing a compliance culture in Egyptian industry as well
as creating the maximum possible energy to progress towards compliance. For the
dissemination of compliance culture over wide sections of the regulated and the regulating
communities and the public at large, Egyptian Environmental Affairs Agency will obviously
need a success early in the next phase.
2 DEVELOPING AN APPROACH
2.1 Compliance Action Plans
The need to act to achieve the short-term objective required a tool that goes further
than the soft approaches of awareness and promotion, a tool that would represent the
necessary compromise between legal requirements, the need for real progress to appreciably
improve environmental conditions as well as a deep understanding of the current conditions
of industry and its need to schedule its environmental investments to adjust to its structural
and individual constraints.
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SHERIF, YASSER 41
These features of the required tool defined it as a plan to comply with legal
requirements which priorities and time frame would be organized to maximize social benefits
given the polluter's technical and financial constraints. These plans would also help clarify
constraints imposed by other parties and put them before their responsibilities. Examples
of these constraints is the lack of hazardous waste infrastructure, the delay in the execution
of sewerage networks and the meager financing and technical capacity of inspectorates.
Last but not least, these plans should help relieving some of the legal enforcement burden
for which the Egyptian Environmental Affairs Agency was not adequately prepared.
This plan named "Compliance Action Plan" had a legal basis in Law 4 of 1994 which
stated that the grace period, originally granted for three years ending in February 1998, could
be extended by Cabinet decision for a maximum of an additional two years given that the
establishment proves seriousness in progressing towards compliance. Establishments
wishing to extend the grace period should apply to the Egyptian Environmental Affairs
Agency six months before the end of the grace period (he. August 1997). This application
should address the reasons for extension and the actions already undertaken to complv with
the requirements of the law.
2.1-1 The Compliance Action Plan Contents
The "reasons for extension " were always understood as the reasons for needing
extension, m other words, why was the establishment not able to comply in the three year
grace period. The Compliance Action Plan has redefined this expression to be the reasons
for granting extension, in other words to what additional efforts does the establishment
commit to undertake if granted an extension.
Accordingly, the Compliance Action Plan requested by the Egyptian Environmental
Affairs Agency from establishments applying for an extension included three correlated parts:
The actions undertaken and progress achieved towards compliance, supported
by satisfactory documentation.
The state of compliance expected by February 1998.
The activities planned to achieve compliance by February 2000.
These parts would, according to the establishment's specific case, address different
compliance issues:
Liquid Effluents.
Air Emissions.
Hazardous waste and substances.
Solid waste.
• Work environment.
The commitments of the establishment to actions would be reflected in:
A clear implementation schedule and progress reporting.
The identification of sources of financing of committed actions.
The establishment of a Compliance Action Plan implementation task force,
with clear authorities and responsibilities.
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It was also made clear to industry that a possible extension of the grace period is
contingent on a continued commitment to Compliance Action Plan implementation. In other
words, an extension could be revoked if the Compliance Action Plan is not implemented as
agreed.
Annex 1 is an English translation of the Compliance Action Plan framework
distributed to concerned parties2.
2.1.2 The Unintended Contributions of the World Bank
The World Bank contributed to the process, though unintentionally, through one of
the activities that EEAA initiated to increase the level of compliance of industrial
establishments: The "Egyptian Pollution Abatement Project", a 5-year project designed in
collaboration between the Egyptian Environmental Affairs Agency and the World Bank to
address industrial pollution problems. The World Bank financial contribution to the Egyptian
Pollution Abatement Project was a soft financial package of 35 million dollars to support
environmental investments in industry with which agreements were negotiated in April of 1996.
One of the steps of their ratification procedures was their clearance by the Cabinet. Actually,
the Cabinet discussed the agreements in December 1996 and asked for a reformulation of
certain points. It was only in July 1997, that Egyptian Pollution Abatement Project
agreements were renegotiated to address the interests of all parties involved. During this
period, the uncertainty concerning the fate of the Egyptian Pollution Abatement Project
brought the activities of its Egyptian Environmental Affairs Agency Project Implementation
Unit to a near complete halt. It is the Project Implementation Unit that took the initiative of
formulating the grace period extension system, which revolved around the submission of
Compliance Action Plans by industry.
The World Bank's first contribution was therefore through this unit created to
implement Egyptian Pollution Abatement Project. Ironically, it is the delay of ratification of
the Egyptian Pollution Abatement Project agreements that freed this unit specialized in
industry to manage the grace period extension process. The Bank 's second contribution
was a document developed for use by Egyptian Pollution Abatement Project to produce
"Pollution Abatement Action Plans" for major polluters. The Compliance Action Plan
framework produced by Project Implementation Unit has used the Pollution Abatement Action
Plan's guidelines as a starting point. Although both documents are environmental planning
guidelines, the Compliance Action Plan was meant to be produced with specific conditions
by the industry itself, without external support. Accordingly, the Pollution Abatement Action
Plans framework had to be substantially simplified. Annex 2 describes the difference
between Compliance Action Plan's and Pollution Abatement Action Plan's.
2.2 Major Decisions
A number of major decisions had to be taken to outline the system already clearly
based on industry submitting Compliance Action Plan's as a support to their request for
extension of the grace period. Based on the text of the Law, the Cabinet should ratify the
Egyptian Environmental Affairs Agency recommendation concerning this request.
2.2.1 Eligibility Criteria for Grace Period Extension
All industrial companies existing at the time Law 4/94 was issued are eligible to apply
for an extension of the grace period. However, these could be divided into the following:
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a Companies committed to full compliance bv February 2000
Review the technical adequacy of committed actions to moving from current
compliance status to objectives and consequently with financial plans.
Review the necessity of the period requested as extension and the possibility
of a compressed plan.
Review the monitoring and reporting system.
In brief, the discussion in this case would be around details, given that other
concerned agencies provide their non-objection to the plan.
b Companies unable to commit compliance bv February 2000
Even though an applicant may not be committed to full compliance by February
2000, a positive recommendation concerning extension could be made. This is because it
is always better to commit progress than not. The Compliance Action Plan provides a better
monitoring opportunity than otherwise. However, a strong case should be made to justify
the situation. Examples are:
The funds required for full compliance would drive the company out of business.
The company faces technological challenges in treating its waste.
Quick solutions will not be cost effective on the long run (need for asset
replacement).
Plans to move from the current site decrease the useful life of fixed investments
at the current site.
In all the cases above, the company should still commit substantial progress
towards compliance focused on high priority pollution issues, given the constraints.
2.2.2 Scope of Committed Actions bv Industry
The possible extension of the grace period applies only to the requirements of Law
4/94. The question was whether these requirements could be addressed in isolation of
requirements of other environmental laws. Technically, they can and legally they should since
some of these laws never had a grace period while some others had a grace period that ended
more than ten years earlier. Practically, however, it was well known that industry had
compliance problems with all environmental laws. Since the proposed system should
encourage industry to progress towards compliance, why should other laws be excluded.
The decision was to keep the text of the Compliance Action Plan framework vague
concerning this issue by requesting a statement of general compliance status but a plan
to comply to Law 4/94 only. Through a consultation system with other regulatory agencies,
other environmental laws could be addressed if raised by industry.
2.2.3 Involvement of Other Regulatory Agencies
Other Regulatory Agencies should be involved. This is not only because of the
expectation that all environmental requirements will be included in the Compliance Action
Plan, but also because of the Egyptian Environmental Affairs Agency's lack of independent
executive authorities. It seemed that the review and ratification of each Compliance Action
Plan would involve a large number of parties.
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In order to decrease the coordination load, it was decided that the highest level of
the local administration, the governorate, should be involved. This is because most of the
regulatory agencies are represented at this level, and the law of local administration gives
it high executive powers. Only specific cases will be referred to the central agencies.
Moreover, and in order to decrease the coordination load, it was decided that extending the
grace period for discharges to sewerage networks will not be recommended since this issue
is managed by the lower municipal level. The Egyptian Environmental Affairs Agency cannot
independently have sufficient information concerning the ability of the network and treatment
plants to carry excess volumes or pollution loads for specific periods to make a justified
recommendation.
The next question was when should the governorate staff be involved. It was found
useful to involve them from the beginning to achieve two objectives. The first objective is to
benefit from the field information to which they have access or can easily acquire it. The
second objective is to create efficient channels of communication and a common discourse,
which will be needed for follow-up on compliance as well as for enforcement activities. It was
decided that a formal training course on Compliance Action Plan review and follow-up would
be delivered to selected governorates before the Compliance Action Plans submission starts.
2-2.4 Negotiations with Industry
It was expected that most of the plans submitted by industry would reflect priorities,
interests and/or positions not totally accepted by the Egyptian Environmental Affairs Agency'.
This would be true whether full compliance is committed toor not at the end of the extended
grace period (February 2000). The plan would in any case be reviewed by regulatory
agencies and an opinion developed. However, two different alternative courses of actions
were considered at this point. The first alternative is to base the recommendation to the
Cabinet on an agreement between regulatory agencies on an acceptable course of action.
The recommendation may differ from the submitted in the Compliance Action Plan in terms
of time, priorities and scope. The second alternative was to discuss the feasibility of this
desired course of action with the applicant to reach a balanced Compliance Action Plan
reasonably addressing the interests and constraints of all parties. The second alternative
was preferred for a number of reasons including a higher efficiency in reaching a more realistic
and acceptable course of action. Moreover, this alternative throws the seeds of an unheard
of cooperative regulator/regulated culture. Experiences from other societies have shown that
a purely confrontational approach has proven inefficient and sometimes ineffective.
These negotiations with industry would put a higher burden for managing the grace
period extension process. It needed to be minimized while keeping the eye on the
advantages of the selected approach. This was to be achieved in two fronts. First, the
negotiated cases could be limited to those where the discrepancy between the regulator and
the regulated positions is substantial. In other words, be lenient where the benefits from not
being so do not outweigh the costs of allocating scarce management resources to realize
them. On the other hand, the number of negotiating parties from the regulatory side should
be minimized as much as feasible. Finally, a little breach of the principle of transparency
may prove useful. The willingness of the Egyptian Environmental Affairs Agency to negotiate
was not disclosed, but would yield to demand by industry.
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2.2.5 Public Involvement
This was yet another issue that required extensive in-house discussions. Public
participation in public decision making is not the norm, even in issues less complex than
industrial pollution abatement. Moreover, involving the public will require a longer time than
available before the end of the grace period. However, it was considered unacceptable to
open dialogue with industry without a reciprocal attitude towards the community. Symmetry
had to be preserved and an exclusionary system is bound to create mistrust. Moreover, public
involvement early in the process is likely to mobilize active participation. Such participation
was badly needed, given the limited inspection capacity. Finally, it was considered essential
for industry to inform the public of its efforts and the constraints it faces to comply. The
compromise reached concerning this issue is to especially consider for public involvement
the cases in which industries will not able to comply at the end of the extended grace period.
These are the cases for which no legal basis existed for additional extensions. Direct public
participation was not considered feasible. Alternatively, a number of active Non-
Governmental Organizations (NGO's) in industrial areas were identified to be adequate
interfaces / organizers in due course.
2.2.6 Management of Work Load
The Project Implementation Unit had only three professional staff members and was
not expected to grow substantially, it was clearly impossible for the Project Implementation
Unit to carry the workload, especially since it was uncertain how many companies would
apply. It was imperative to rely on external expertise.
The key to financing external expertise was provided by Law 4/94:
The executive regulations allow the Egyptian Environmental Affairs Agency to
hire experts to prepare the report concerning extension.
It also states that the applicant shall bear the costs of these experts, and
The Egyptian Environmental Affairs Agency will estimate these costs.
Several alternatives were considered for charging these costs. Finally, it has been
decided that it will be linked to the size of the establishment (in terms of work force). Although
this had no bearing on the type of expertise and the complexity of the issues, the advantages
of a transparent and uniform fee structure outweighed its disadvantages, given a reasonably
large number of applicants.
In order to better manage the available resources, it was also decided to stretch the
period of submission of Compliance Action Plans to start after the deadline for application
(August 31,1997) and extend to December 31,1997. It should be noted that this is not totally
consistent with the regulatory text, which states that applications should be submitted before
the deadline accompanied with the relevant documentation. However, no one objected.
2.2.7 The Complementarity with Enforcement Activities
One of the benefits of the Compliance Action Plan system was to partially relieve
the Egyptian Environmental Affairs Agency from the legal enforcement burden for which it
was not adequately prepared. Nevertheless, the Egyptian Environmental Affairs Agency will
have to prove that it has enforcement teeth, after the grace period has elapsed.
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It was imperative to separate the follow-up on Compliance Action Plan
implementation from inspections on establishments which did not submit plans. For the
former, no legal enforcement procedures will take place unless the establishment refrains
from implementing committed actions, and only after due notification. On the other hand,
the latter will be subject to inspections which could directly lead to legal procedures. The
differential treatment of the two groups should be managed to encourage more
establishments to plan their compliance activities and submit their Compliance Action Plans.
3 IMPLEMENTATION
Implementation could be divided to a number of distinct phases:
Phase 1: April 1997 to August 1997
Activities mainly revolved around the diffusion of information, technical advice
to industry and the refinement of the system in parallel with the receipt of
applications from industry. Other activities were planned during this period
including training of governorate staff, the initiation of a media plan, the
refinement of the consultation system for implementation in phase 2. However,
these were not implemented due to the confusion resulting from the rejection
in principle of the extension of the grace period by the Prime Minister. The
next phases were not implemented as planned.
Phase 2: September 1997 to February 1998:
Draft Compliance Action Plans should be submitted starting the 1st of
September. Revision of these drafts and the finalizing of these documents
should take place, with due consultation and negotiations according to the
cases. In order to help industry produce their draft Compliance Action Plans
in an acceptable form and content, especially in terms of planned actions,
formal consultation sessions were planned during this phase. This should have
decreased the subsequent negotiation load. This phase was not implemented
as planned, as described later.
Phase 3: March 1993 to Present
It was clear at this point that Cabinet decisions would not be taken concerning
the extension of the grace period. Accordingly, the planned activities
concerning the follow- up on ratified Compliance Action Plans did not take
place. However, the lack of transparency has made the system continue by
inertia. Industry reactions to this confusion varied.
3.1 Phase 1
Actual implementation started in April 1997 with the diffusion of information
concerning the grace period extension system and requirements revolving around the
submission of a Compliance Action Plan and a commitment for its implementation.
3.1.1 Information Activities:
Informing the largest number of establishments in the shortest time possible using
limited resources was resolved through releasing information to strategic actors:
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48 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
A media information session in April, diffused information through major
newspapers, radio and television.
A total of 35 information letters to core organizations (holding companies, the
federation of Egyptian industries and its sectorial chambers, investors
associations and the like) suggesting to them to diffuse information to their
member companies. The efficiency of diffusion was supported by the
responses from member companies referring to the letters sent by the Egyptian
Environmental Affairs Agency.
A series of meetings! in industrial fora .
A series of training activities in Compliance Action Plan preparation for a
selected group of 100 major polluting industries. This group of larger industries
was specifically targeted because of the underlying interest in avoiding or at
least delaying confrontation with major industries.
Most importantly, a group of consulting firms was invited to this training. The firms,
perceiving the business opportunity, launched marketing activities including mailing
campaigns to inform potential clients of the Egyptian Environmental Affairs Agency
requirements. Moreover, the Environmental offices of selected Governorates where industry
is concentrated, participated in this training to prepare them for the next phase when they
should have been trained to participate in reviewing Compliance Action Plans.
The repercussions of these strategic information activities were substantial. For
example, the Ministry of Public Business Enterprises took the initiative in informing all the
companies that belong to it. Mostly large employers, and of which some are major polluters,
these companies have been bombarded by information about the grace period extension
system directly, through their holding companies, through the Ministry and through industrial
chambers as well as media. Most of these companies have requested extension. On
another front, the Environmental Pollution Prevention Project (EPS) of the United States
Agency for International Development (USAID) have taken the responsibility of informing its
client industrial enterprises of the requirements.
A few months later, all consultancy service providers were mobilized for preparing
industrial CAP'S. These included offices of the Ministry of Industry which provided competitive
prices being a government entity. This made the subject of complaints concerning unfair
competition from a number of private firms. The market mechanism was at work.
3.1.2 System Refinement
Given the late start, a number of system components were not fully developed when
the grace period extension requirements were announced in April 1997. It was also clear
to the Project Implementation Unit that the workload of reviewing, negotiating and finalizing
Compliance Action Plans will exceed the existing resources. As mentioned-above, one of
the techniques to allow for better planning was to delay the submission of the Compliance
Action Plans to start after the end of the application period. Moreover, a standardization of
procedures and report formats were developed to help streamline the workload after draft
Compliance Action Plans will pour starting September 1st. During this phase, the following
documents were developed:
• . Terms of Reference for external Compliance Action Plan reviewers.
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A standard review report format allowing for a quick review by the Egyptian
Environmental Affairs Agency to insure impartiality and a clear delineation
between technical and political decisions.
Terms of Reference for external advisors to contribute in formal consultation
sessions for industry to be held in the Egyptian Environmental Affairs Agency.
A compilation of an expert database by specialization in industrial sector and/
or pollution media to be used for recruitment of external reviewers and advisors.
A refinement of the suggested system to collect and disburse review charges
insuring adequate financial resources for the system operation.
Terms of Reference for a media expert and an expert to design the public
consultation mechanism were drafted.
A consultation system with other regulatory agencies including Terms of
Reference for the selected agency contact team and a team profile.
A standard report forniat for submission to the Cabinet for approval.
A suggested text for Cabinet decrees clarifying the decision and its
contingency on continued commitment to implementation by the
establishment. It was also considered to use this decree to fill a gap in law
4/94 executive regulations concerning the ratification and periodical revision
by the Egyptian Environmental Affairs Agency of self-monitoring schedules.
Finally, and in order to keep track of the procedures and deadlines to respond to each
individual establishment, an electronic database was developed to record the submission
review and response dates concerning of each establishment. The database was also used
to analyze information sectorially, to estimate the work load on each category of reviewers
and geographically as a basis for consultation with the local administration.
3.1.3 Technical Support
The technical support activities focused on the industrial establishments to help them
assimilate the concepts and mobilize their efforts to produce their Compliance Action Plans
First, and before the Egyptian Environmental Affairs Agency's requirements were
made public, three Compliance Action Plans in three different industrial sectors were
commissioned to three different consultants by the Egyptian Environmental Affairs 'Agency'
These cases were meant to test the viability of the Compliance Action Plan framework, the
type of resources that need to be mobilized and the availability of information to produce it
This activity has also helped the Project Implementation Unit gain experience closer to the
field, which benefited the future technical advice to other establishments.
Consultations provided to industry already started at the end of the period but relying
exclusively on the Project Implementation Unit, since as described underneath the
mobilization of funds to hire external advisors did not take place.
3.2 A Major Blow-down
With all the complexities and workload that this system entailed, it seemed to have
been well designed. Minimal unforeseen pitfalls were expected during actual operation
starting September 1997.
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However, a major factor was missing. A system with such a novel approach should
have had stronger political support. In the last week of July, the Prime Minister declared in
the monthly Governors' meeting that the extension of the grace period for industrial
establishments is rejected in principle. Industry had enough time to comply and extension
would shake the credibility of the law and question the seriousness of the state to enforce
it.
The very next day, the Project Implementation Unit clarified to the Egyptian
Environmental Affairs Agency leadership that this rejection is inconsistent with the regulatory
framework which sets the following principles:
The possibility to extend the; grace period.
The authority of the Cabinet to grant this extension on a case-by-case basis.
The responsibility of the Minister of Environment to present cases, supported
by relevant documents, to the Cabinet for decision.
The Egyptian Environmental Affairs Agency has the mandate to revise the
documentation submitted (which was decided to be in the form of a Compliance
Action Plan) and report to the Minister of Environment for presentation to the
Cabinet.
The grace period extension became an issue of high political sensitivity, the Prime
Minister's position could not be recliscussed. It should have been translated into an Egyptian
Environmental Affairs Agency's focus on enforcement activities rather than the promotion of
industry's commitment to actions achieving compliance. However, the Egyptian
Environmental Affairs Agency already invested in the Compliance Action Plan promotion
activities. Informing industry that the grace period ending in February 1998 will not be
extended would have compromised the Egyptian Environmental Affairs Agency's credibility.
Internal Egyptian Environmental Affairs Agency discussions went on to the end of
August, when the following compromise was reached:
Continue with the grace period process as previously agreed.
Fulfill the responsibility of presenting the cases to the Cabinet, given that it
will be in its discretion to approve, or disapprove, of extensions on a case-by-
case basis.
In order to avoid political sensitivities and confrontation, the process of
preparation of the cases for presentation should take place while keeping the
lowest possible profile.
The compromise allowed the Egyptian Environmental Affairs Agency to:
Implement what was agreed to be an effective means to promote compliance
and achieve substantial improvement in both the environmental performance
of major polluters and the environmental management culture in the next two
years.
Avoid backing-up from a process that was essentially positively received by
industry, which expressed its willingness to commit compliance-oriented
actions.
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However, the "secrecy" implied by the compromise had, a number of negative effects
on the process. These could be summarized as follows:
First, transparency was in itself a major advantage of the process as designed
since it diffuses to the public, industry and, decision-makers a number of
messages. These mostly revolved around the efficiency of a cooperative
approach. Moreover, information about the actions committed by industry and
the degree to which they are fulfilled should allow for public scrutiny and
eventually mobilization in terms of support and /or pressure. This would be
inachievable since plans for public consultation, as well as media plans were
totally frozen.
It was hoped at the time that this is only delayed until the first cases are
presented to the Cabinet, which should trigger a more open reaction. Although
it cannot be totally foreseen, whether the Cabinet chooses to approve or
disapprove of extension, the low-key constraint will be broken.
Second, the system developed for financing the Compliance Action Plan
review and monitoring of implementation relied on raising funds from applicants
based on the text of the executive regulations allowing the Egyptian
Environmental Affairs Agency to recover the costs, it estimates, for the
production of reports to be presented to the Cabinet. The system was designed
and reviewed by Egyptian Environmental Affairs Agency financial advisors, and
was ready for clearance by the Egyptian Environmental Affairs Agency CEO
when the process was disrupted by the political developments concerning the
grace period extension. It was decided not to require applicants to pay these
revision fees to keep the agreed upon low profile. Alternatively, resources would
be mobilized from internal sources.
Third, the most critical effect of these developments concerns the freezing of
efforts to coordinate with other concerned agencies. The lack of a
coordination mechanism can put the whole process at risk, since the Egyptian
Environmental Affairs Agency is not the only agency concerned with the
environmental performance of industry.
3.3 Phase 2
At the end of the specified application period (31 August 1997), 190 companies
requested extension, representing almost 300 plants. These were of a heterogeneous profile
Both privately and publicly owned companies were represented as well as all sectors of
industry, including 6 power plants, distributed in 23 out of 26 governorates composing the
national territory. The last days before the deadline saw an exponential growth in requests
which reflected the expected eagerness of industry to extend the grace period.
Early in this phase, the results of a survey of activities undertaken by industry to
comply with the law since its issuance started materializing. These results supported the
earlier perception that industry has made a serious effort to comply, especially larger
establishments, but it still has a long way to go; the perception upon which the Compliance
Action Plan system was based.
The figures were more surprising. The results of the survey indicated that Egyptian
industry has invested more than 3 billion Egyptian Pounds (LE) in environmental investments
during the last few years. This figure includes a few major projects totally shifting production
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52 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
to cleaner technologies, but also hundreds of millions were spent by state-owned enterprises
to minimize the environmental effects of their discharges through waste minimization,
recycling and treatment. The other important result was that most of these funds were
mobilized locally, although only international financing was highly publicized.
3.3.1 Compliance Action Plan Review
Unexpectedly some Compliance Action Plans were submitted in the first days of
September. Companies did not all wait for the last days of December to submit their
Compliance Action Plans it was clear that these were the companies that actually had an
environmental plan, and did not produce it only to extend the grace period.
The process went as desjigned in the early stages of content revisions. However,
companies that completed the Compliance Action Plan's contents, called for another critical
decision. Since the formal consultation process with other regulatory agencies was put on
hold, the report and the recommendation concerning a possible extension to be submitted
by the Egyptian Environmental Affairs Agency for Cabinet ratification can only reflect Egyptian
Environmental Affairs Agency's opinion. It was not possible to initiate such consultation
without breaching the low profile compromise already agreed with Egyptian Environmental
Affairs Agency's leadership.
3.3.2 Consultation with Regulatory Agencies
To develop an opinion concerning the seriousness of activities already undertaken
to comply with the law did not represent a problem. Nor was the technical assessment of
the adequacy of committed future actions to control currently non-complying aspects. The
problem was basically two-fold, the insufficiency of field information to assess the effects
of pollution allowed to continue during an extended grace period on the environment and the
community, the other side of the problem is the political sensitivity of recommending to the
Cabinet actions that fall within the domain of other agencies.
A decision was taken at that point, that it is Egyptian Environmental Affairs Agency's
assessment and opinion, which will be submitted to the Cabinet. Whatever deficiency in the
recommendation will be discussed in the Cabinet; an awkward situation which were to be
avoided if consultation took place beforehand.
3.3.3 Negotiations with Industry
Negotiations with industry took place in only a few cases in which consultation with
other regulatory agencies was essential. The low-profile attitude was preserved since this
consultation mostly relied on personal contacts, and no formal system of consultation was
put in place.
3.3.4 Reliance on Available Resources
Internal resources to replace the funds raised through application fees were never
mobilized. The Project Implementation Unit has relied mainly on its existing staff to review
draft Compliance Action Plans. Moreover, valuable support to hire external reviewers was
contributed by Egyptian Pollution Abatement Project's technical and institutional support
component (supported by the Finnish government)4. This contribution did not, and could
not, cover all the activities that were planned during this phase.
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SHERIF, YASSER 53
Until the end of this phase, the Project Implementation Unit continued the revision
finahzation and report production including the recommendation concerning the extension
?n£fnft^Ce£;n0d- But buecause °f meager resources, the process took longer than
anticipated. This process that should have ended with this phase spilled to the next.
3-3-5 The Expansion of the Compliance Action Plan Scops
r«,r,MiremTh1 dfadlitne |°r accepting requests (August 31, 1997) was linked to the legal
requirements to extend the grace period. Given the developments, and the uncertainty
concerning such extensions for those who applied before the deadline, it was found
meaningless to reject additional Compliance Action Plans. It was decided by the Project
Implementation Unit to accept more submissions while specifying to the applicants that it
will bear no relation to the possibility of extending the grace period but will be taken into
account in inspection activities. This approach was well received by industry and applications
continuscl.
Additional major developments took place late in 1997, which showed that the
Compliance Action Plan approach has established roots. The association of investors of
Sadat City (a new mdustria! city) contacted the Project Implementation Unit to express its
will to submit Compliance Action Plans for all its members (more than 100 industrial plants)
The association was fully aware that no extension will be granted, but they thought it was
an adequate approach to ensure that their members are compliant or will be compliant within
a specific time period. This was essential in a growing industrial city before environmental
problems get out of control as has happened in other industrial cities. The Project
^plementation Unit has welcomed the approach and has received and commented on the
Compliance Action Plan's submitted from Sadat City. *
The Chamber of building materials industries of the Federation of Egyptian Industries
has also contacted the Project Implementation Unit to investigate the possibility of
coordinating the preparation of Compliance Action Plans by its 1,200 members The
approach was also welcomed, and several meetings have taken place, but the Chamber did
not go further in the process.
On another front, by the end of 1997 the local administration has applied enforcement
pressure on bnck kilns. This industry using old technology is definitely polluting, like so many
others, and the reasons pressure was applied specifically on this one are unclear The
important point is that the local administration, knowing that it cannot close down hundreds
of these kilns, has advised their owners to submit Compliance Action Plans to the Egyptian
Environmental Affairs Agency. Almost 300 submissions from these kilns were received in
2 moni hs. In order to support this positive movement in an industry lacking the technical
capabi it.es, the Egyptian Environmental Affairs Agency has initiated a pollution abatement
technology study to provide objective technical information to these plants as a guidance
to tnsir Gfforts.
3'3'6 Plans forthe First Egyptian Environmental Affairs Aaencv Inspections
The Egyptian Environmental Affairs Agency was preparing for the first inspection
campaign planned to start the next day the grace period ends. The original idea was to
exclude from inspections, as a first enforcement activity of the Egyptian Environmental Affairs
Agency companies, which did apply for extension and accordingly submitted a Compliance
Action Plan. The logic was that those who already " confessed" and promised to " repent"
would be given some time to check whether they hold their promises. These need to be
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54 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
included in a follow-up, and not an inspection, system. However, as a result of the decreasing
interest in the Compliance Action Plan approach, and the low confidence in the submitted
plans given the lack of consultation, this principle was requestioned.
This issue was resolved through a decision that all the inspections planned for the
first two months (56 plants)5, some of which applied for extension, will only be followed by
mild notifications evolving later for those who do not take issues seriously to legal
enforcement procedures. Moreover, these inspections would focus on low cost measures
to achieve the following:
Avoid unproductive arguments about the financial capacity of industry to
implement high cost investments. This is especially true for large state-owned
enterprises facing real financial constraints.
Avoid the need for scarce equipment and measuring devices, and arguments
on the accuracy of measurements.
Mobilize higher public support, since most of these measures are needed
where production inputs and /or intermediate products are wasted due to
deficient management.
Capitalize on the potential of these measure to be implemented quickly to
achieve the highest possible reduction in pollution loads in the shortest delay.
Finally, it will also be an effective means to test the accuracy of information
submitted in the Compliance Action Plans.
The inspection teams were formed from research centers and other regulatory
agencies . Only a few members were internal to the Egyptian Environmental Affairs Agency.
This approach was a necessity since Egyptian Environmental Affairs Agency has not built
its inspection team yet, but it was also useful in overcoming fragmentation of responsibilities,
as prescribed in current legal instruments dealing with the environment, among several
agencies; a major obstacle to elective implementation of enforcement activities.
This activity has been the first practical use of the Compliance Action Plan's, since
inspectors used the valuable documents as background information before site inspections.
3.4 Phase 3
It is difficult to report on this phase which started March 1,1998 after the end of the
grace period since developments concerning the management approach to industrial
compliance are still unfolding. However, major trends and patterns could still be outlined.
3.4.1 A Stagnant Period
Test cases were never submitted to the cabinet and it was clear at this point that
the rejection in principle of the grace period extension will not be challenged. It could not
be challenged by the Egyptian Environmental Affairs Agency as a government entity, but it
was also not challenged by industry, the other major stakeholder of this decision. This may
have been for a number of reasons, which hampered collective action by industry.
The Federation of Egyptian Industries has had a major change in management
in this period. Neither the new nor the old management was in a position to
get into a confrontation concerning this issue;
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SHERIF, YASSER 55
The Federation of Egyptian Industries and its sectorial chambers had other
important issues on their agendas (such as dumping, export promotion, and
the effects of removing import barriers on local industry) for which they needed
the Cabinet support;
Information concerning this rejection was'never confirmed by the Project
Implementation Unit, still hoping unjustifiably to see this decision reversed-
and finally
Industry may have been also interested in avoiding closer scrutiny to follow
up on its Compliance Action Plan implementation.
Given this deadlock, the Project Implementation Unit has approached a local
conflict resolution research center. This center should have taken the lead in opening a
dialogue highlighting the issues and stakes of the two different management approaches as
a means to move the stagnant situation. However, the effort to prepare for this dialogue was
an additional burden on the Project Implementation Unit that could not be borne given the
high and growing workload. A workload especially growing since the Project Implementation
Unit was integrated in the Egyptian Environmental Affairs Agency's structure under a different
mandate. The Industrial Compliance Unit has taken the mandate of its predecessor in
addition to other industrial related activities dispersed in the Egyptian Environmental Affairs
Agency. The dialogue was never opened.
3.4.2 A State of Confusion
As a result confusion started to increase from the beginning of this period Decisions
awaited by industry concerning the grace period were never taken while regulatory agencies
including Egyptian Environmental Affairs Agency started inspecting compliance with the law
The reaction of industry to this confusion varied along a wide spectrum reflecting
different degrees of seriousness to move towards compliance. While some establishments
started implementation and reporting, others insisted on having their requests for extension
accepted claiming that their commitment to action is hampered by the lack of a clear stand
from the Egyptian Environmental Affairs Agency. The Industrial Compliance Unit, knowing
that the Egyptian Environmental Affairs Agency does not have the authority to grant
extensions, was elusive concerning the latter group, and could only be encouraging for the
former.
Another contributor to the state of confusion and growing pressure were consultants.
As a marketing approach, consultants which were hired by industry to prepare their
Compliance Action Plan's have linked their final payments to the acceptance of the
Compliance Action Plan. The Project Implementation Unit could only, given the
circumstances, inform industries of the completion of the Compliance Action Plan
requirements but never of its acceptance. A large number of contracts are still hanging to
date and consultants are complaining of the vagueness of the Egyptian Environmental Affairs
Agency's position.
3-4-3 The Role of Local Administration in Promoting Compliance Action Plan's
Local administration has started promoting Compliance Action Plan's in late 1997
especially among brick kilns. Later, after the end of the grace period, during its normal
inspection it was faced with industries questioning such activities since, as they claimed
their Compliance Action Plan's were accepted by the Egyptian Environmental Affairs Agency'
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56 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and a cabinet decision concerning their grace period extension is due any time6.
Unmistakably, the local administration contacted the Egyptian Environmental Affairs Agency,
which informed it of the compliance program and asked it to follow-up on its implementation
taking necessary legal actions if not implemented as submitted.
Continuous enforcement activities have supported the validity of the Compliance
Action Plan approach. Needed corrective actions cannot be implemented in a short period.
Priorities should therefore be set in a way agreed and ratified by the regulatory agency. The
local administration has realized it, but lacks the technical capacity to take a more positive
attitude towards it. It attempted to resolve the issue through an unexpected move. Local
administration had started requiring industries renewing their operating licenses to contact
the Egyptian Environmental Affairs Agency for environmental compliance purposes as a
requisite for license renewal. Surprisingly, similar requests originated simultaneously from
different cities and towns. Although, the Egyptian Environmental Affairs Agency perceived
the opportunity to promote compliance, it would have been an unbearable burden for which
the Egyptian Environmental Affairs Agency has no actual mandate. Local administration has
been informed that the Egyptian Environmental Affairs Agency has no mandate concerning
license renewal.
Finally, a number of governors, the highest authorities in local administration seemed
to have assimilated the benefits of an approach promising an improvement of environmental
conditions without threatening the continuing operation of polluting industries, large employers
of the local work force and contributors to the economic welfare of the population.
Compliance Action Plan's became a normal reference in a number of governors'
communications with Egyptian Environmental Affairs Agency concerning industrial pollution
as well as with industries falling in their administrative domain.
3.4.4 Egyptian Environmental Affairs Agency's Current Revived Interest
It is now (September 1998) clear to all parties that the grace period extension
decisions will never be taken by the Cabinet. Accordingly, the issue has lost most of its
political sensitivity. The Compliance Action Plan could now be decoupled from the grace
period extension. The Egyptian Environmental Affairs Agency's revived interest could be
exemplified in a number of activities currently undertaken by the Industrial Compliance Unit
as cleared by the Egyptian Environmental Affairs Agency's management.
Formal contacts to industry to report on their progress in Compliance Action
Plan implementation;
The cooperation with local administration to follow-up on implementation is
being revisited;
A dialogue with the association of iron foundries to develop a collective
agreement concerning progress towards compliance; and
A system is being designed to incorporate environmental requirements in
license renewal (the issue originally raised by local administration) taking the
milestones of a Compliance Action Plan as references for temporary renewable
licenses.
Moreover, outside the Industrial Compliance Unit other units of the Egyptian
Environmental Affairs Agency developed Compliance Action Plan frameworks for hotels and
hospitals and started requesting these establishments to submit their Compliance Action
Plans. Odd cases, such as an airport, a maritime transportation company and a wastewater
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SHERIF, YASSER 57
treatment plant were received by the Egyptian Environmental Affairs Agency. The Egyptian
Electricity Authority is currently developing a Compliance Action Plan for each of its power
plants, and not only the six plants for which it originally requested a grace period extension.
CONCLUSION
This paper could have been written in a number of forms. Its anecdotal approach
h,Hh !, ^ try t0 9iVe the flavor Of the real exPerience of the author. Stories of our
childhood usually ended with a strong morale, and this one has its own: The fate of the war
is not decided in one battle.
of it, ™ 1 ^T1,? en'!!d tC? manage the extension of the grace period has failed in most
of its aspects. It had all the elements needed to have a program fail:
A tight time constraint.
Scarce human and material resources.
Weak political support.
c,, w . Int';odufin9 a management system entails a number of inter-related elements that
S« °e developed in consonance to keep the system in equilibrium during the start-up
phase. If this system is introduced within a government, or any large bureaucracy, it is also
subject to forces of institutional inertia, that easily transform initiatives to change to
unnoticeable scratches on its surface. A successful change in bureaucracy requires the
mobilization of extra-institutional alliances, that given the three above-mentioned elements
was not possible in the right moment when it was needed.
It was, in a way. not wise to initiate such a program 10 months before the end of the
grace period with three professionals on board. It was more so to insist on preserving the
system inertia when it was clear that weak political support had turned into outright rejection
However, there was a good product in hand and the market was in dire need for it'
One can daim at this point that the Compliance Action Plan and its underlying cooperative
fS^^f^T™ I!13!7 *cratches on the surf£jce. The approach was successfully
incubated but it still needs to be nurtured to strengthen systemic roots in the Egyptian
environmental scene. The tool was also successfully tested and has proven its usefulness
and versati ity. Its development is now a standard component in environmental management
courses tailored for industry cadres in Egyptian universities. It is only the establishment of
the management system that failed temporarily
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58 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ANNEX1
COMPLIANCE ACTION PLAN (CAP)
(Framework)
1 BACKGROUND
The environmental law 4/94 has granted the existing industrial establishments a
grace period of three years starting from the issuance of its executive regulations (February
95) to meet its requirements. The grace period can be extended for 2 years, given that the
establishment proves seriousness in progressing towards compliance.
All establishments expecting not to comply with the requirements of the executive
regulations by February 1998 are required to formally apply for extension 6 months before
the end of the grace period (August 1997). This application should address the reasons for
the extension and the actions already undertaken to comply with the requirements of the
The Egyptian Environmental Affairs Agency requires the establishments to provide
satisfactory evidence of the progress achieved and the actions to be undertaken during the
extension period to ensure compliance at its end, according to the attached framework.
2 OBJECTIVES
The immediate objective of the Compliance Action Plan is to bring the applicant facility
in compliance with environmental laws and regulations. The ultimate objective is to strengthen
environmental commitment and to incorporate environmental management systems and
cleaner production technologies in the Egyptian industry.
3 SCOPE
The Compliance Action Plan should accomplish the following:
Translate the planned technical interventions to conceptual engineering
designs.
Reflect financial requirements and limitations.
Outline an environmental management system integrated in the facility's
planning and management systems to respond to evolving environmental
requirements.
Form the basis of the facility's agreement with the Egyptian Environmental
Affairs Agency on a phased plan towards environmental compliance.
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SHERIF, YASSER 59
4 DEVELOPMENT OF THE CAP
4.1 Draft Cap
The Compliance Action Plan is the facility's document and throughout the phases
The following issues should be addressed in the draft Compliance Action Plan report:
4.1.1 Environmental Status
Provide Plant information as described in Appendix A.
A list of environmental studies conducted for the facility in the last three years
( copies of these studies should be attached).
Report on actions undertaken and progress achieved towards compliance
supported by satisfactory documentation, since the issuance of the Law 4/
Identify the state of compliance with relevant environmental laws and
regulations expected by February 1998 concerning:
• liquid Effluents, for each point of discharge, specifying discharge rates
source(s) by industrial process. A table comparing the average
concentration of pollutants to the maximum allowable limits according to
Law 4/1 994 should be attached.
• Air Emissions, for each point of discharge (stacks and fugitive emissions)
specifying source(s), emissions rates, stack heights and fuel used if
applicable. A table comparing the average concentration of pollutants to the
maximum allowable limits according to law 4/1994 should be attached.
• Hazardous materials used in the facility and the current management
system compared to the requirements of Law 4/94.
• Solid and Hazardous waste, identifying sources by industrial process and
the current management system compared to the requirements of Law 4/
y4.
• Work environment, specifying locations where pollutants concentration
exceed the maximum allowable limits according to law 4/1994 A list for
these pollutants with their concentrations should be attached.
Existing Pollution Control Facilities
• Sewer layout diagram.
• Description of in-process and end-of-pipe treatment of liquid waste and air
emissions and the efficiency of the existing treatment facilities.
• Availability of space for installing pollution treatment units.
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60 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.1.2 Planned activities for Environmental Compliance
4.1.2.1 Polluting discharges
Specify proposed actions to mitigate non-compliance problems during the
grace period including:
• Process changes and / or control
• Improved maintenance measures
• Input substitution
• Material recovery and recycling
• End-of-pipe treatment
4.1.2.2 Hazardous waste and materials
Describe measures to upgrade management of hazardous waste and material,
according to law 4/1994, including a contingency plan.
4.1.2.3 Work Environment
Specify actions to be undertaken to bring the work environment in compliance
with law 4/1994.
4.1.2.4 Monitoring of Industrial Emissions
Describe present system, and identify planned actions to establish a self-
monitoring scheme according to the requirements of Law 4/94.
4.1.3 Environmental Policy and Management System
The facility should inform the Egyptian Environmental Affairs Agency of the
composition of the task force -with defined roles, responsibilities and authority
as well as adequate resources- designated to ensure that the Compliance
Action Plan is implemented as committed and to report on progress towards
its implementation to top management.
During the extension period, this task force will also be responsible for
developing the facility's environmental management system. This would
include, but is not limited to:
• Outline the company strategy on pollution abatement, cleaner production,
energy conservation, waste minimization, water recycling and by-product
recovery;
• Designate the responsibility for achieving environmental objectives and
targets to each relevant function and level of the organization;
• Identify measures to strengthen awareness of management, supervisors
and workers of environmental issues and regulatory requirements relevant
to their areas of responsibility;
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SHERIF, YASSER 61
Develop a plan for on-the-job training on cleaner technologies, operation of
waste treatment systems, and emissions monitoring; and
Identify measures to be undertaken when monitoring information indicates
non-compliance or unacceptable degradation of the receiving environment
4.1.4 Action Plan
4.1.4.1 Implementation Schedule
H^ TlTf "I3'1'0" schedule should be included. This schedule
delineate the technical and managerial aspects of the compliance plan
ancial plan, targeted deadlines for major activities, as well as the
com' Nances0*10"5 '" P°IIUt'°n '°adin9' 3nd the reSUlt''ng Pr°9ress towards
4.2 Financial Plan
• Delineate financial requirements in terms of investments and operational costs
as well as potential benefits.
°f financing for the activities that will be implemented by th
4.2.1 Progress reporting
Areh S' t0 the Egyptian Environmental
Affairs Agency will be requ.red to summarize the progress on the action plan
as well as forth coming activities.
4-2-2 Feedback to the Draft Compliant Aptir.n
will be su"bmiSS°rPlifnCe,ACtir P'an' °leared by t^ establishment Board of Directors
SSS^££SSS^ E?V'rCr 6ntal Affairs Ag«ncy for review and comments
reed back solicited b the E
ommens
me reed back solicited by the Egyptian Environmental Affairs Agency, as needed from the
local administration as well as other concerned parties will be included.
4.3 The Compliance Action Plan Final Document
chana6^Ah2Hed C°mpMnce Action Plan sn°uld be prepared by the facility to incorporate
changes based on the comments, if any, of the concerned parties. The final document w5
e«l™£0^lE9^^
extension of the grace period submitted to the Cabinet of Ministers.
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FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
APPENDIX A
FACILITY INFORMATION FORM
I. General Information
Company:
Facillity Address:
CEO:
Size of labor force:
Major production activities:.
SIC Code:
Contact Person:
Address
Phone
.Fax
II. Production Processes
Process Information
• Process flow diagrams.
• Material, water and energy balances.
• Map showing facility layout illustrating main uses, points of discharge and sources
of emissions.
Production Information
• Products
Products
Production Capacity (t/y)
Average Production (t/y)
Main Raw
Materials
Average (t/y)
Maximal Consumption
Consumption (t/v)
»Water
Water Consumption
Domestic Water
Process Water
Cooling Water
Amount (m3/v)
Supply Source
•Energy
Type
Amount/year
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SHERIF, YASSER 63
III. Surrounding Environment
• Map of plant location, identifing receiving water body, surrounding land uses
distances to human settlements.
IV. Future Plans, if any
• Relocation plan
• Expansion plan
• Major process modifications
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64 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ANNEX2
ONTHE DIFFERENCE BETWEEN THE COMPLIANCE ACTION PLAN AND
POLLUTION ABATEMENT ACTION PLANS
Both the Compliance Action Plan and the Pollution Abatement Action Plans are
environmental planning exercises at the industrial facility level. For both a central element
is an in-depth plan for environmental upgrading, covering technical solutions, their costs and
a timetable.
However, their emphasis and scope of activities may differ.
Compliance PollutionAbatement
Action Plan (CAP) Action Plans (PAAP)
• Objectives Compliance Env. soundnes
. EMS Initiation Integration
• Contingency schemes Hazardous material Comprehensive
• Training Env. Personnel Plant personnel
• Monitoring Emissions Env. performance
• Financing Affordable Substantive
The main differences between the two planning exercises are their time frame and
objectives. While the Compliance Action Plan is a short term plan to ensure compliance
with applicable laws and regulations, the Pollution Abatement Action Plans is a longer term
plan with an ultimate objective to secure environmental compatibility and economic viability
of the establishment.
In the long term two factors, that are fixed on the short term, become variable:
The plant configuration.
• The environmental requirements.
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SHERIF, YASSER 65
ENDNOTES
1. A subsequent survey conducted in July- October 1997 and which covered 1000
larger industrial establishments, has substantiated this perception
2' EEAA^affra^H^HrlhaS benefi!fd fT the comments of several parties including
fcfcAA staff and advisors as well as the Finnish staff of a EEAA international
project (Egyptian Pollution Abatement Project's technical andlnSSSoS" support
component supported by the Finnish Government) in EEAA. Other useful
comments have been solicited and received from EPA office for compliance and
enforcement after distribution has begun. These comments have been used in the
subsement management of the subject but are not reflected in the annexed CAP
3. , nese UAK« w.r* «,,nnn^ K» tne Finnish contribution to the Egyptjgn po||utjon
We acknowledge the understanding of Dr. Alec Estlander, the Egyptian Pollution
^K2?? H™!1 Pr°JeCt manager °f the imP°*ance of the activS
allowed for an .deal cooperation with the PIU during this crisis situation.
Ca™ ™* Alexandria regions, where a large
wgh
public companies from different sectors but all with considerable size
HUfhiC;ati0n co"Ceming the comPle«°n of the CAP requirements, also
ed that a report concerning the extension request was prepared or
Sh ±6n °f "I"84- "?iS may ^ 9iVen the impressi°n °f ««5-nc
3 W3yS trUe" But Since on|y a few cases were neotiat
by
wnHn pp But Since on|y a few cases were negotiated
rS^"01 clarified and the reports included positive as
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66 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SALDANHA, MICHAEL F. 67
INSTITUTIONAL REFORM THROUGH JUDICIAL ACTIVISM
SALDANHA, MICHAEL F.
Karnataka High Court, 401 Silvercrest, 13 Rest House Road, Bangalore, Karnataka 560
001 India '
SUMMARY
The role of the Judiciary in achieving radical environmental institutional reform has
hitherto been overlooked in so far as the emphasis has always been on Governmental action
and its implementation. While the role of the NGOs has been assumed to be more of a
vigilante nature they have also been ascribed with the important task of achieving higher
compliance even in the absence of strict policing by the State. At the end of 1998 a critical
audit in India will indicate that the achievement levels have still been low in vital areas
principally because the Courts have been playing a minimal role in the arena. While it is
true that punishing environmental offenders in a manner that has to be a deterrent is the need
of the day, it must be simultaneously emphasized that the two other important means
namely the power to prohibit and the power to direct are two of the quickest and most effective
weapons that need to be used more frequently. In the Indian context, the subordinate Courts
which deal with environmental transgressions have failed miserably in achieving any respect
for the laws or any fear of the consequences of breaking it. Compliance from society will
be forthcoming when the message goes out loud and clear from these Courts that whereas
today one can transgress nature's laws and State laws almost with impunity, that the Courts
will ensure that it is no longer safer or cheaper to break the law than to observe it What is
required is a no nonsense approach whereby fear is the key — a respect built on the
understanding that the consequences of a breach will be very very serious The Indian
Supreme Court's interpretation that the fundamental right to life does include the right to clean
environment elevates what is otherwise an ordinary legal right to that of a basic human right
constitutionally protected through writ jurisdiction of the Supreme Court and High Courts
Therefore, despite failure of administrative and legal arrangements in the effective protection
of environment, human rights standards and procedures have advanced the cause of a right
to a clean environment by putting administrators on the defensive and generating a positive
enthusiasm to give priority to environment issues.
1 INTRODUCTION
Are environmental rights, individual rights? They most certainly are, as it affects the
individual s right to life. At the same time, they are group rights as well, since a safe and clean
environment is the basic need of all living creatures, particularly human beings. However at
the end of the day, the discourse on rights invariably aims at articulating potentially enforceable
individual rights, as all human rights are inherently anthropocentric (focus on people)
_ Many aspects of environmental rights reaffirm the substantive content of such rights
Thus, environmental rights emanated out of the right life, right to health, right to privacy and
right to sustainable development. At the same time, without individuals having the standing
to challenge perceived violations of the environment and the system following "due process
of law as a prerequisite for interference with fundamental rights, the development of
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68 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
environmental rights has evolved as part of human rights. It is the Courts and more importantly
the Judges in many of these Courts who are required to give body and soul to these vibrant
concepts.
2 JUDICIAL ACTIVISM
The Indian Constitution invests the higher Judiciary with the powers that were
originally possessed by the sovereign and to provide complete justice these Judges are the
repositories of unbridled powers. India is a subcontinent and it has as many as 438 High
Court Judges and 29 Supreme Court Judges and the figures are being set out in order to
illustrate that if this virtual army of Judges were to use the powers vested in them both
individually and collectively to the extent that is expected, that every erring institution or every
defaulting institution could have been reformed in no time. The gravity of this argument would
be illustrative from the fact that out of the 248,860 cases that these Judges handled in 1997,
as many as 16,480 pertained directly to environmental issues and the failure rate is as high
as 93 8% The orders indicated that the Courts generally refused to interfere and virtually
redirected the parties to the authorities at a slightly higher level. It was an appeal from Ceasar
to Ceasar, an exercise in futility that demoralized the complainants and encouraged
environmental vandalism. Why did this happen? My only regret is that in the higher Judiciary,
which is otherwise overloaded, an almost universal trend has manifested itself among the
fraternity built on the fallacious notion that environmental issues belong to a field which is
really directly not the business of the Courts, which should be agitated elsewhere and that
even the few cases that come up should be beaten down in order to reduce the volume of
such litigation and lighten the load on the Judiciary. To my mind, the whole approach is wrong
and requires drastic change. A^C.A u- u
The Indian Constitution incorporates some unique features such as Art.51 A which
enumerates Fundamental Duties one of which is "to protect and improve the environment
including forests, lakes, rivers and wildlife and to have compassion for living creatures." This
is a provision that is more overlooked than observed but it does postulate as much a duty on
the Judges as on the citizens to ensure environmental preservation. The number of cases that
come up before the Courts are severely limited because the chances of success are relatively
low There are also other reasons, the main one being that the offenders invariably belong
to powerful or dangerous lobbies an in the majority of instances, there is total back-up and
political patronage. A classic example is where the State or its departments acting through
its representatives are the offenders, such as in the case of widespread destruction that takes
place through the forest department which in turn is riddled with corruption. The complainants
would either be afraid or are resigned to the fact that the offending party is too big or powerful
to be rectified. I mention these features deliberately because the higher Judiciary is the one
and only institution and the avenue of last resort available to an aggrieved citizen or an
endangered population to obtain corrective action; if the Judiciary shows a high degree of
reluctance in entertaining the complaints, for its own defensive reasons, the number of
approaches would necessarily fall. Nothing is more eloquent than the analysis of the cases
belonging to this category which increased by 11 % between 1980 and 1985, by another 47 h
between 1985 and 1990 thanks to a responsive Judiciary and then declined by 22% between
1990 and 1995 and, dived even more by 44% between 1995 and 1998. These figures
demonstrate a dangerous trend and onf which requires urgent reversal. Whereas a decade
ago the situation was in the process of reform, a change of Judicial attitude has today
restored it to a situation of pathos.
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SALDANHA, MICHAEL F. 69
the hour? °°nC StSPS °f enSUring Judidal activism whicn * really the need of
, 3t feeding the Jud9es with the right type of
at carhold Srt imP°rtant aSPeCt ** ^y man the on|y inst*ution
must
home the
else wi» and
eunen (Lron\the Chief Justice of India that a Green Bench be
set up in the Supreme Court and in every High Court to handle this class
and effidentiy and that the
WRIT JURISDICTION
KaS-s^^
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70 FIFTH I NTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
increasing the number of Judges but even if that takes a while, with mere better time
management, work management and a degree of mechanization, there is absolutely no
difficulty in accommodating these cases. What needs to be emphasized is that this class of
litigation involves comparatively uncomplicated cases which can be disposed of very fast.
To my mind, if every High Court and the Supreme Court were to firmly and seriously order
corrective steps and enforce them for a period of one year the compliance levels will shoot
up to a point that the need to approach the Courts will be reduced by as much as 75%. I say
this from a position of experience and with total confidence.
4 JUDICIAL MILITANCY
Shocking as it may seem, this expression may appear totally out of place in relation
to Judicial functioning. While it is accepted in most quarters that a definite degree of Judicial
activism is desirable, eyebrows would probably be raised of one advocates Judicial Militancy.
1 have already referred to the more serious issue namely that in respect of major transgressions
the aspects of personal safety and survival invariably deter public interest litigation. In 1983
the Indian Supreme Court entertained a series of letters from convicts and later on from
journalists which were treated as letter petitions and converted these into writ petitions on the
basis of which the Courts proceeded to summon the respondents and to pass appropriate
orders. Over the years, the Indian Courts have accepted the practice of entertaining such
complaints which are initially screened and thereafter acted upon. These may concern
individual grievances or in may instances involve a request for Judicial intervention in cases
where the problem is brought to the notice of the Court. In the first of such cases it was brought
to the notice of the Supreme Court that in one of the States a number of undertrial prisoners
had been victims of police torture which had resulted in their being blinded and that the
authorities had never produced them before the Courts thereafter and had indefinitely retained
them in custody and the Supreme Court came down heavily on the authorities and ordered
exemplary compensations. Some years later, when the capital city of India, New Delhi, was
preparing for the Asian Games, thousands of migrant laborers had been brought to Delhi to
work on construction sites without even the provision of basic amenities resulting in abnormally
high civic pollution, and a journalissttook the matter up with the Supreme Court which intervened
and brought about immediate corrective action. This avenue of approaching the Courts still
continues but the irony of the situation is that only 1.2% of the letter complaints get to be
entertained. An examination of a cross section of these complaints indicates that 92% of them
deal with aspects of pollution, degradation of forests, tanks and rivers, noise pollution, dangers
to public health and generally matters that require redressal in the public interest. All that is
required is that a well qualified scrutiny mechanism be set up in the Courts to sift these
complaints and to act on ones which require redressal. Even in cases relating to pollution by
small industries, the residents of that area invariably do not disclose their names for fear of
reprisals but this is no ground on which a. Court should ignore the complaint. Where it is
a question of the public good and the public interest the predominant consideration must
always be to correct and not to permit injustice.
What I am coming to really is that through this source, complaints are addressed
directly to the Judges and additionally through the media and even through ones own
observation, instances do arise when serious illegalities come to the personal notice of a
Judge. A Judge being a Constitutional functionary the Judicial Officer is vested with "suo
motto" powers to direct corrective action and for doing this, it is not necessary that a public
interest petition or a formal complaint should be on record. Undoubtedly, the Judge will follow
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SALDANHA, MICHAEL F 71
edure whereby the issue is investigated and the party against whom action is proposed
be given a fair opportunity of being heard but the fact remains that while exercising suo
powers, the members of the superior Judiciary are reaching out further than and activist
. would normally do. I have used the expression Judicial Militancy because I believe
rnnitannt°trnethl0a t'ngta ^Ut S°da' Chan9e and instituti°nal reform a Judge would have to be
milrtant to the extent of keeping one's eyes and ears open and acting on one's own The
impetus has to come from within and for this, there has to be a background of deep seated
dedication fired by a commitment to reform. searea
I ^vacate a resort to this mechanism in the context of the Indian sub-continent
e Judges have the power, the competence and the means to achieve rapid
reform as they do not have to wait for complaints which may or may not come.
SENSITIZING THE JUDGES
f be Init'ated t0 Very quickly but v^ firmly sensitize the
np ^^vironmentalaction. The BarCouncilsand the Universities
from w^efeTem^Wf f T?*"8 ** SUbJ8Ct h the LaW curric"'^- The Bar Associations
from where the majority of Judges emerge need to be stimulated and spurred into action by
S tSSTT neSh° environmental issues but as far as the existing Judges are concerned
^lh * f haP! he'P, immense'y would be through the setting up of a Judicial Academy
in each State which could hold orientation courses for the Judges in order to increase the
frSS"^ WH that are abSO'Utely necessarV.if the levels of activism or militancy are to be
hn^< £™ hereastvarious international bodies have hitherto concentrated on government
far Tta2 *n' '^f"?1^ th6 'egal pr°feSSi°n appears to have 9°ne bv «**S»
far. I have attempted to highlight how vital this area is and while I do not dispute that a
n!amOUrihaKS bSen d°ne tOWardS formulati°n °f l^s, regulations and the like, thai
ff h?S "Ot been suffident'y emphasized is a sad truth. This pape has
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72 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BIRCHER, NANCY 73
MAKING IT HAPPEN: THE EVOLUTION OF PULP AND PAPER MILL
COMPLIANCE IN BRITISH COLUMBIA
BIRCHER, NANCY
Wildlife Branch, Ministry of Environment, Lands and Parks, 888 Fort Street 2nd Floor
Province of British Columbia V8W 9M4,Canada '
SUMMARY
fhSfn^^ Co'umbia P"'P a"« Paper mills has
driven by growing public awareness of
ise to public demand. Phase 1 was
regulation and even less enforcement.
>, unencumbered by environmental concerns. In
health hazards of pollution drove government to
comm.pn u/,m th= i * -t -,- ant enforcement was carried out and industry
compliance occurred at Phase 3 when the government
—•-* program.
INTRODUCTION
closure o^ommer?/! £h988' ?8 federa' Min'"Ster °f Rsheries and Oceans announced the
BACKGROUND
It is bounS^hr^ Jf 3 '^u6 Canadian Pravince of approximately 95 million hectares
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74 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Canada is the world's largest producer of market pulp, producing one-third of the
world's total in 1991 and the single largest supplier of newsprint, with 56% of the 1991 world
total. British Columbia is a large contributor to Canada's output of these products, producing
29% of the Canadian pulp output in 1992.3
The first pulp and paper mills in British Columbia began operations in the early
1900's. Because they need water, wood and shipping routes, the earliest mills were
established along the Pacific coast. Later, during rapid expansion in the 1960's and 1970's
new mills opened on the coast and also on major inland rivers. There are now 26 pulp mills
in the province, 23 of which release effluents directly into the environment.
Compliance with environmental law by British Columbia pulp and paper mills has
evolved through four distinct phases, each phase driven by growing public awareness of
environmental issues and government response to public demand.4 Phase 1 was
characterized by low public awareness, almost no regulation and even less enforcement.
The industry was free to grow and operate, unencumbered by environmental concerns. In
Phase 2, growing public awareness of the health hazards of pollution drove government to
set emission standards. Still, no significant enforcement was carried out and industry
complied with the law at its discretion. In Phase 3, the public demanded and government
delivered tighter emission standards and tough enforcement. Industry at first resisted and
paid dearly in fines which finally led to improved compliance. In Phase 4, the industry is
substantially in compliance with stringent emission standards, the public continues to press
for a cleaner environment and government encourages industry to move "up the pipe" to a
new environmental management regime.
The turning point in industry compliance occurred at Phase 3 when the government
implemented an aggressive enforcement program. In this paper I will describe the four
phases, but will focus attention on Phase 3 as this is the phase when British Columbia "made
it happen".
3 PHASE1
The first 60 years of pulp and paper mill operations in British Columbia passed with
almost no reference to the environment. The public was largely unaware of environmental
concerns and the mills discharged wastes with little or no regulation by government. In the
late 1960's the provincial government enacted the first legislation that required pulp and paper
mills to obtain wastewater discharge permits to control and reduce the types and quantity
of wastes released to water. The site specific permits also introduced legal requirements to
monitor the impact of pulp mill discharges on the receiving environments but no formal
enforcement was carried out. Industry viewed the controls as a nuisance and paid scant or
no attention to compliance.
4 PHASE2
The 1970's and early 1980's saw growing public awareness to the health hazards
of pollution. Accordingly, government sought public input to environmental policy
development. In 1971, pollution control objectives were introduced.6 In 1976, a public inquiry
was conducted to review the objectives and ensure they served the public good. Public and
industry meetings were held around the province. The resulting Pollution Control Objectives
for the Forest Products Industry of British Columbia were published with a view to reducing
the volume, concentration and toxicity of waste discharges from pulp and paper mills and
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BIRCHER, NANCY 75
also as an attempt to standardize permitting practices across the province. Pulp and paper
mill operations require at least three waste discharge permits, one for effluent discharges
to water, one for emissions to air and a third for discharging refuse to land. The new objectives
addressed the complex issue of operating one phase at the expense of the others and sought
to balance air, water and land discharges to ensure the effluents are disposed to the various
media within the assimilative capacity of each.7
In 1982, a new Waste Management Act increased penalties for pollution to a
maximum of $50,000. Nonetheless, enforcement activity remained very low key with no
major investigations or prosecutions. Negotiation and bargaining were the main techniques
employed to achieve compliance. Informal sanctions such as sending a letter or scheduling
a meeting with senior officers of the company were the harshest measures employed in most
cases on non-compliance. Sometimes a conservation officer in uniform attended site visits
This was perceived to have an impact by suggesting that prosecution measures might be
taken. During the years 1984 to 1986 the average fine imposed under the Waste
Management Act was $565. At the end of this phase, in 1987, the provincial government
reported only 9 convictions under the Act for a total of $4,900 in fines.8
The industry took notice of increasing government attention to environmental
concerns by appointing environmental coordinators to work with government environmental
protection staff, negotiating permit discharge limits and attending meetings to discuss
compliance issues, but compliance remained low.
Lengthy and complex scientific studies were undertaken by governments to
investigate effects that pulp mills were having on surrounding ecosystems. Dioxins and
furans were linked to the use of chlorine bleaching in the pulp milling process. The discovery
of dioxms and furans in marine environments around coastal pulp mills emphasized the need
for improved wastewater treatment and process changes
PHASES
The 1988 shellfish closures and public health advisories near pulp mills focused
public attention on this industrial sector. The public had by this time developed a
sophisticated understanding of environmental issues and environmental non-government
organizations, known as "ENGOs", were effective at communicating public concern to
government through lobbying efforts and communicating back to the general public through
the media. Public meetings held on the fishery closures were well attended by up to 5 000
people at a single meeting, who criticized government for not enforcing its laws.
Also in 1988, an environmental lawyer and law professor at a British Columbia
university published a report that brought to light the failure of government to achieve
compliance with its environmental protection legislation. The report begins "Regulators
respond to most environmental... violations by ordering offenders to obey the law. Sanctions
are seldom invoked.".' The author's analysis of monitoring data showed that many industrial
permittees were habitually and substantially out of compliance with their permitted discharge
levels. Further, interviews with government staff revealed that persuasion was used almost
exclusively over punishment and that many habitual offenders were never penalized The
report contended that sanctions hold great promise in the regulatory context. A monetary
penalty can be expected to be more effective for companies in direct pursuit of profit than
they are for those who commit more expressive crimes such as murder or illicit drug use
because of the negative profit contingency presented.10
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76 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
An important regulatory goal of the British Columbia government was to ensure all
pulp mills employed acceptable pollution control technologies to meet new tougher
standards. Careful attention was paid to permitting practices across the province and
tracking compliance. Mills were required to install equipment to monitor their discharges and
regularly provide the data to government. Regular meetings with company officials were held
to review the data and discuss compliance issues. At one notable meeting, a table was
presented showing the industry's own monitoring results. Each instance of non-compliance
printed in red ink; the compliant discharges were printed in black. The table appeared almost
entirely red and the company vice-presidents walked out of the meeting en masse11. This
behavior was a clear indication that if compliance was to be achieved, persuasion alone would
not provide the means.
Government implemented an enhanced program of inspections to verify industry's
monitoring data and made a bold decision to address habitual significant industrial non-
compliance with prosecution.
Prince George, on the Fraser River, is a small interior city with four pulp mills
impacting the same watershed and airshed. These four mills together produce more tons
of pulp per day than anywhere else in Canada; second most only in North America. In 1987,
ambient air and water monitoring revealed that, despite clear permitted discharge limits, one
of the pulp mills was by-passing its pollution treatment works on a regular basis and
releasing untreated waste directly to the environment. When questioned, the mill manager
was unable to provide accurate information of the dates, times and levels of the untreated
discharges. Clearly, more careful monitoring of the mill's discharges was required.
Government officials amended the mill's permit to prohibit untreated discharges without first
receiving permission from a government official. One evening the mill manager telephoned
to seek permission for an untreated discharge to the air. As the ambient air quality that day
had been poor, the official refused permission. The mill manager became indignant and
informed the official that he would by-pass the works regardless, which he did. Government
decided to take enforcement action and initiated charges; the senior prosecutor in Prince
George took personal charge of the case. Charges were laid, not only against the mill but
also against the mill manager, an action unheard of to that point under British Columbia's
environmental legislation. The company received a $65 thousand dollar fine and apologized
for the violation. Charges against the mill manager were stayed.12
In 1989, penalties for pollution offenses were increased to a maximum of $1 million
per day, $3 million per day for intentional damage and provisions were added that attached
liability to Directors and imposed the potential for jail sentences of up to three years.
Environmental Enforcement Units of inspectors and investigators and an Environmental
Prosecution Group of lawyers specializing in environmental law, were posted in key locations
throughout the province. Specialized training courses were developed and delivered to
inspectors, investigators, prosecutors and expert witnesses. Prior to that time,
environmental cases were investigated by officers and prosecuted by lawyers who had no
background or training in pollution law; most government experts had never set foot in a court
of law.13 Much of the training focused on the significant cultural change required for staff
who we're accustomed to the persuasive approach and extremely uncomfortable prosecuting
their industrial "clients".
In 1990, 308 charges were laid under British Columbia's environmental legislation
and over $1 million in fines was collected. This trend continued until the mid 1990's, with
individual fines against pulp mills reaching $200,000 and higher. The Ministry published
media releases listing the names of companies significantly out of compliance with
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BIRCHER, NANCY 77
environmental legislation and permits. It also released the names of companies charged
and convicted of environmental offenses, including major penalties. Release of this
information continues to this day.
Environmental law conferences sponsored by the Environmental Prosecution Group
were well attended by legal counsel for industry who advised their clients that practices and
procedures must now be implemented to protect the environment and also to protect industry
against prosecution. Prior to that time, environmental defense work was rare and normally
done off the corner of industry counsels' desks, but now, the large British Columbia law firms
began to employ lawyers specializing in environmental law.14
The pulp and paper industry responded by employing environmental specialists to
liaise with government regulatory staff and to develop environmentally sound operating
standards for the mills. During the period 1989 to 1993, the British Columbia pulp industry
• reportedly spent roughly $1 billion to meet the new standards.1S Finfish and subsequently
shellfish closures and consumption advisories began to be lifted in 1993.'8 This trend
continues.
6 PHASE4
Now, the public is informed and exercises its vigilance through mature ENGOs
effective lobby mechanisms and the media. Domestic and global markets apply economic
pressure on industry to make and keep their products "green". Government regulation
continues to evolve with technological advances. In 1995 a regulation was passed that would
lead to complete elimination of AOX discharge from the bleaching process by December 31
2002 The decision to require zero AOX discharges from pulp mills set an international
precedent. The government of Canada introduced regulations that require the virtual
elimination of dioxins and furans. Monitoring, inspection and enforcement regimes are well
established. Industry knows that protecting the environment is good for business and uses
environmental endorsements and certification to sell their products. Compliance is high- the
number of prosecutions and the amounts collected in fines has decreased substantially
Water and air quality continue to improve. '
With these elements in place, British Columbia's government has decided to move
its efforts farther "up the pipe" to increase the efficiency and effectiveness of environmental
management in the province. A new initiative called "Pollution Prevention Planning"
challenges industry to identify ways to avoid, reduce and eliminate pollution at source rather
than treating or containing it after it has been created. Through Pollution Prevention Plans
companies incorporate pollution prevention in the context of their strategic business plans'
and also develop stronger ties to the communities in which they operate This initiative
compliments the International Standards Organization's environmental management
certification process (ISO 14000) and facilitates the development and implementation of
comprehensive environmental management systems on an industrial site basis. Overtime
these plans can replace the multiple "end of pipe" permits for direct discharges to water air
and land. Industries efforts will involve measures such as elimination of hazardous material
inputs, improvements to in-production processes and "closed-looping" of residual streams
These innovations will focus also on increasing efficiency, reducing costs, improving flexibility
and gaming a competitive advantage through secure markets
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78 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
7 CONCLUSION
United States President Theodore Roosevelt, speaking at the Minnesota State Fair
in 1901, advised to "Speak softly and carry a big stick". The British Columbia government
spoke softly to the pulp and paper industry during its first 60 years of operation in the province,
but government carried no stick to speak of. Later, government finally had a stick but didn't
use it. Speaking loudly and using its big stick during the third phase, government finally got
industry's attention. Now, we seem to have Roosevelt's formula about right. We are back
to speaking softly to industry but we carry our big stick in plain view.
ENDNOTES
1 Ministry of Environment, Lands and Parks, January 1995. B.C.'s Pulp Mills:
Effluent Status Report, Highlights.
2 Ministry of Forests, 1994. Forest Range and Recreational Resources Analysis.
3 Ministry of Environment, Lands and Parks, January 1994. B.C.'s Pulp Mills:
Effluent Status Report, p.2
4 Khare, Prad, Ministry of Environment, Lands and Parks, personal communication
5 Ministry of Environment, Lands and Parks, January 1994. B.C.'s Pulp Mills:
Effluent Status Report, p.7
6 Ministry of Environment, Lands and Parks, January 1994. B.C.'s Pulp Mills:
Effluent Status Report, p.7
7 Ministry of the Environment, 1977. Pollution Control Objectives for the Forest
Products Industry of British Columbia
8 Ministry of Environment,, 1987/88 Annual Report
9 Brown, R.M. and Rankin, T.M., September 1988. Persuasion, Penalties and
Prosecution: The Treatment of Repeat Offenders Under British Columbia's
Occupational Health and Safety and Pollution Control Legislation.
10 Brown, R.M. and Rankin, T.M., September 1988. Persuasion, Penalties and
Prosecution: The Treatment of Repeat Offenders Under British Columbia's
Occupational Health and Safety and Pollution Control Legislation.
11 Dreidger, Ron, Ministry of Environment, Lands and Parks, personal communication
12 Dreidger, Ron, Ministry of Environment, Lands and Parks, personal communication
13 Rendell, Brian, Ministry of Attorney General, personal communication
14 Rendell, Brian, Ministry of Attorney General, personal communication
15 Ministry of Environment, Lands and Parks, January 1994. B.C.'s Pulp Mills:
Effluent Status Report
16 Ministry of Environment, Lands and Parks, March 1995. B.C.'s Pulp Mills: Effluent
Status Report 1994 Update, p.3
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SOPHY, MAK AND DARARATH, YEM 79
PUBLIC PARTICIPATION AMD ENVIRONMENTAL COMPLIANCE AND
ENFORCEMENT IN CAMBODIA
SOPHY, MAK AND DARARATH, YEM
Ministry of Environment, No. 48, Street Samdech, Preach Sihanouk, Tonle Bassac
Chamkarmon, Phnom Penh, Cambodia
1 MISSION
As we know, Principle 6 of She UN Conference on the Environment Stockholm 1972
stipulated that the discharge of toxic substances, or of other substances and the release
of heat in such quantities, or concentrations as to exceed the capacity of the environment
to render them harmless, must be halted in order to ensure that serious or irreversible damage
is not inflicted on ecosystems."
The Royal Government of Cambodia considers prevention of pollution the principle
means of protecting the environment and will seek to gain an improvement in the
environmental performance of all waste producers. Its role is to prevent and protect the
environment from damage and irreversible harm caused by the release or escape of all waste
substances from all sources to the environment whether harmful or not
It is the responsibilities of the Solid Waste and Toxic Substances Management
Office to assess the risk of damage or harm occurring to the environment from substances
released into the environment.
The office resulting from risk analysis, is to define standards beyond which discharge
cannot be made and to issue appropriate licenses and monitor the source to achieve that
rssult.
2 THE MANAGEMENT POLICY
The management policy of the Pollution Control Department and its specified offices
IS tO I
identify and monitor all sources of waste;
advise on waste minimization;
promote reuse and recycling;
set standards for the release of waste;
issue regulatory control mechanism;
promote environmental management systems (ISO 14000); and
enforce the law.
The Pollution Control Department and Solid Waste and Toxic Substances
Management office has identified and taken guidance from International Standards and
Policy matters included in Agenda 21 of the UN Conference on Environment and Development
in Rio de Janeiro 1992. The priority policy of Solid Waste and Toxic Substances Management
office for 1998/1999 is:
To increase the knowledge, skill and ability of the staff of the Pollution Control
Department to undertake the key tasks of the department.
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80 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
To undertake the key tasks work of the Pollution Control Department and meet
target schedule:
- The identification and registration of all waste problems within Cambodia.
- System collaboration with other ministries and authorities.
- Prevention of pollution through promoting Environmental Management
Systems (ISO 14000).
- Setting of standards for the release of substances.
- Issuing regulatory controls.
• To achieve financial self sufficiency within a period of 5 years.
For good and sound reasons solid waste in Cambodia has historically not-been a
matter of concern to the public at large and consequently there has been no demand for the
control of waste. The result has been to constrain Professional Practice and the development
of skills through the provision of environmentally sound services and facilities.
The implementation of the regulatory function is itself therefore constrained by the
lack of trained and competent resources.
The emphasis of the department at this inaugural stage of development of a
procedural and regulatory activity is therefore to seek, in the first instance, an improved
Environmental Performance by the waste producer, Transport Undertaking, processor or
Waste Management organization, leading to the reduction of waste, without prejudice to the
regulatory duty of the ministry.
3 THE POLICY ON ENVIRONMENTAL LAW
Policies state that the overriding goals are to:
Establish a clear preference in regulation and monitoring for self regulation in
advance of prescriptive regulation i.e. create law and regulations such that all
acts of deliberate contravention are to be instantly prosecuted, but that
recorded improved environmental management is recognized and encouraged.
Minimize the regulatory administration and regulatory fiscal burden on
investors. Licensing, certification, monitoring and inspection to be exercised
by one multi-disciplinary authority to clearly defined terms and procedures.
Be immediately reactive to proven deliberate acts of pollution against the
regulation and public interest.
Identify and collate all law and regulation in existence in Cambodia and all
applicable international regulation conventions and resolutions; relating to
Environmental Law.
Establish clear definitions and conventions regarding all elements of waste
generation, transfer and disposal.
For historical reasons the laws relating to the environment in Cambodia is spread
among many ministries. The Solid Management Office is a technology-based office primarily
seeking to develop its risk assessment skills to establish and monitor standards. It is not
skilled nor does it seek to be skilled in drafting and promoting law as is therefore to seek
the professional assistance from external sources and/or of other department.
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SOPHY, MAK AND DARARATH, YEM 81
The law requires that the Ministry of Environment collaborates with other ministries
consequently the complexity of the law and diversity of enforcement authorities requires that
an independent body be established to interpret and correlate that which exists and to
develop new law.
. The law as drafted cannot reasonably be implemented for the lack of compliant
facilities and services. There is a need therefore to establish an organization and to
investigate the provision and management of assets and their management and to implement
the results.
4 COLLABORATION
The Ministry of Environment is required to collaborate with all ministries, Governors
of all provinces, all departments of ministries including municipalities, districts and Ministry
of Interior, all relevant lOs and NGOs, as required by the law and those who may have some
contribution to make the key tasks of the Solid Waste and Toxic Substances Management
office.
Historically the exercise of environmental management and regulation was practiced
by a number of ministries. Those ministries still have the duty to create and enforce
environmental law appropriate to their operational policies and strategies
More indefinite is the role of the Ministry of Environment Provincial Offices where the
directors appear to report to both She Ministry and the Governor (Municipality) This is
identified in an agreement to the monitoring of different industries by either the Ministry or
the Municipality.
The relationship between the Ministry of Environment and the Provinces is vital to
the operational strategy of the Office of Solid Waste and Toxic Substances Management
The current relationship is one of collaboration, but with centralization it is expected that will
change soon.
5 PUBLIC PARTICIPATION AND PROBLEM RESOLUTION
The construction of housing, industries, the development of tourism resorts in
sensitive areas, the allocation of timber harvesting rights to a large private company are
developments permitted legitimately by government institution in many countries around the
world. Each decision or permission has to be agreed upon based on sound technology
analyses of the environmental impacts of the proposed development, particularly and of the
social economic as a whole. Public interest is a major part in decision-making They
generally do not have enough right to join in what the government has decided even though
they know what the impacts are going to be. Consequently some groups benefit while others
are being adversely affected.
In response to controversial development decision non-government organizations
may form to lobby the government to influence the decision. As we know for more countries
around the world, the public has the authority to destabilize or overturn government decision
that they do not agree or support, leading to a succession of decision that are unstable
Unfortunately, Cambodians are not allowed to evaluate the situation that has been undertaken
by the government, though the law of Environmental protection and Natural Resources
Management prescribed, and in some cases they have information or ideas that can
contribute significantly to the quality of the decision. Therefore the government or the
decision-maker must weigh the prospective benefits against the cost of various levels of
participation.
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82 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 83
THE U.S. EXPERIENCE WITH THE TOXICS RELEASE INVENTORY- AN
IMPORTANT TOOL TO IDENTIFY POTENTIAL RISKS TO THE PUBLIC
AND TO PROTECT ENVIRONMENTAL HEALTH
WALKER, MICHAEL J.1 AND MARVIN, THOMAS C.z
'Senior Enforcement Counsel, Office of Enforcement and Compliance Assurance, U S
Environmental Protection Agency, 401 M Street SW, Washington, D.C. 20460, USA
'National Enforcement Coordinator for the Emergency Planning and Community Right To
Know Act, Section 313, U.S. Environmental Protection Agency, 401 M Street SW
Washington, D.C. 20460, USA
SUMMARY
The U.S. Toxics Release Inventory and its enforcement heralds a new era in
approaches to environmental protection, combining mandatory requirements for information
reporting with strong incentives for voluntary pollution prevention opportunities. The United
btates took a bold step to create requirements to publicly report chemical use information
which has created a powerful voluntary incentive to prevent and control pollution from
thousands of toxic and hazardous chemicals. The lessons learned have great implications
for counties seeking to develop similar Pollutant Release and Transfer Registers
Emergency planning and public reporting of pollutant releases and their potential
nsk came to the forefront in the United States and international community after the 1984
Bhopal tragedy in India in which the release of toxic gas killed and injured thousands The
Congress of the United States recognized that a similar accident could happen at home and
created a new marriage of market mechanisms and regulatory approaches. Prior to 1986
the federal Environmental Protection Agency had no single repository of information on
hazardous and toxic chemical use, storage or manufacture. The Congress also recognized
tne slow pace of regulating environmental protection on an individual pollutant or industrial
process. In 1986 Congress enacted the federal Emergency Planning and Community Right
to Know Act to ensure that potentially dangerous chemicals are identified and that
communities are prepared to respond to an accidental release of toxic chemicals. This paper
examines the implementation, enforcement, and expansion of the TRI during the last twelve
years and demonstrates how simple reporting of chemical use information and practice and
its enforcement can have a dramatic and positive effect in reducing risk to public health and
environmental safety.
1 INTRODUCTION
Imagine a toxic cloud seven miles long arching over a community of thousands of
men, women and children. Imagine a toxic release in the middle of the night that silently kills
thousands of residents, including animals within a one mile radius of the plant. Imagine a
simple chemical use estimate requirement that causes widespread internal chemical use
assessments that result in widespread voluntary pollution reduction and waste elimination
You do not need to use your imagination because each of these items are true. The toxic
release in the middle of the night was a pesticide cloud released from the Union Carbide plant
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84 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
in Bhopal, India. The toxic cloud seven miles long was chloride release during a fire at the
All Regions Laboratory in Springfield, Massachusetts. Since the tragic toxic chemical
explosion in Bhopal, India focused worldwide attention on the actual and potential risks that
chemical manufacture and storage pose. The concept of a community's right to know about
toxic chemicals in the environment has become a world-wide regulatory theme.
The requirements that have led to countless incidents of pollution assessment,
evaluation and voluntary reduction is the federal Emergency Planning and Community Right
to Know Act. The United States first codified the right to know in the Emergency Planning
and Community Right To Know Act or "EPCRA." EPCRA Section 313 also referred to as
the Toxics Release Inventory or the "TRI" which is perhaps the most publicized aspect of the
right to know in the United States. Other countries have enacted similar legislation, known
internationally as National Pollutant Release and Transfer Registers or "PRTRs." PRTRs
appear to be one of the fastest growing trends in environmental regulation today. The US EPA
is currently in its twelfth year of implementing the TRI.
EPCRA is the largest regulatory net ever cast by Congress affecting a larger array
of facilities and industrial sectors than any other regulatory program. The statute is further
evidence of the recognized need for broad based, community environmental action. EPCRA's
goal is emergency preparedness and community right to know, however, an important and
perhaps unanticipated result has been widespread pollution prevention and control by
industry. Further refinements in the use of this data will be achieved through efforts to make
it easier for the public to access information and support community action. Vigorous
enforcement of EPCRA emergency reporting and toxic release inventory violations have led
to hundreds of enforcement settlements involving substantial civil penalties but also numerous
pollution prevention projects. Many other counties have begin to adopt similar regulatory
strategies to create voluntary incentives to prevent and control pollution from thousands of
toxic and hazardous chemicals.
2 EPCRA: GOALS, PUFtPOSE, STRUCTURE
On October 17, 1986,1 the U.S. embarked on an entirely novel approach to
environmental regulation. Departing from decades of command and control regulatory
approaches where the government set ambient and performance standards for facilities to
meet or specific methods for pollution control,2 the Toxic Release Inventory and other Pollution
Release and Transfer Registers,3 encouraged voluntary corporate pollution control and
prevention based upon internal assessments of chemical use practices by requiring regulated
entities merely to report the amounts of specific listed chemicals that are produced, stored
disposed of or released into the air or water during the previous year of operation. EPCRA
Section 313 does not define any acceptable level of pollution, nor does EPCRA Section 313
directly penalize regulated entities for releasing chemicals into the environment. Rather,
EPCRA Section 313 is violated primarily when regulated entities fail to submit specified
information detailing the amount of each toxic chemical released into the environment, or
when regulated entities submit incomplete or inaccurate information.4 By making reports
of this information available to the public, press and others interested parties, public pressure
and not government mandates; encourages pollution reduction.5
The reductions of chemical use have been dramatic. Because EPCRA's Toxic
Release Inventory data is freely available through the Internet and other data sources,
citizens and other interested parties can search the data bases looking for the top chemical
user in the United States; their state; their county; township; hamlet of cross roads. You can
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 85
search by company name; address, zip code; even the longitude and latitude. When the
results of the first reporting year were made available to the public in 1988, the Monsanto
Corporation was found to have the largest number of chemicals used or released in the United
states. As the result of this information, Monsanto management vowed to reduce chemical
use and emissions by 90 per cent whenever feasible. The next reporting year saw a new
company in the top spot. Not a petrochemical giant, blast furnace or steel mill but the Kodak
Corporation, a household name for millions. Following this dubious recognition Kodak
executives vowed to reduce their chemical use, spoilage and emissions wherever feasible
Because EPCRA puts the opportunity for chemical reduction on the individual corporation
and facilities, companies can identify voluntary strategies to reduce chemical usage that meet
their timetable, specific processes and checkbook, consistent with applicable federal laws
and regulations, of course. This eliminates the need for EPA to try to dictate "command and
control requirements. "Anticipate and prevent" does work.
2.1 How the Statute Works and Key Elements
EPCRA's primary purpose is obvious from its title: Emergency Planning and
Community Right to Know Act. Encouraging and supporting emergency planning for
responding to chemical accidents helps provide local governments and the public with
information about possible chemical hazards in their communities. The Act contains four
major provisions, all requiring state, local, and industry action. These major provisions are-
planning for chemical emergencies5; emergency notification of chemical accidents and
releases ; reporting of hazardous chemical inventories3 and toxic chemical release reporting.9
2.1.1 Emergency Planning
Emergency planning for chemical releases requires cooperation at all levels
Citizens must know what industrial and chemical activities are operating in their communities-
trie state and local governments must set in place emergency procedures; and industry must
play its central part in the disclosure of complete information which allows for better
emergency planning.
Under the emergency planning provision of the EPCRA, governors appoint state
emergency response commissions. These state emergency response commissions
establish emergency planning districts and appoint, supervise and coordinate local
emergency planning committees. The local emergency planning committees then develop
local emergency response plans and review them at least annually. Facilities10 are obligated
to notify state emergency response commissions and local emergency planning committees
if they have extremely hazardous substances present above "threshold planning quantities"11
and to participate in emergency planning.
Where a release has occurred, facilities notify the state emergency response
:ommissions and local emergency planning committees immediately of accidental releases
3f hazardous substances in excess of "reportable quantities"12 and provide written reports
Dn actions taken and on medical effects. The state emergency response commissions and
ocal emergency planning committees make accidental release information available to the
Dublic.
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86 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.1.2 Reporting Requirements
2.1.2.1. Hazardous Chemical Reporting Requirements
Under the hazardous chemical reporting requirements, facilities must submit material
safety data sheets or lists of hazardous chemicals on-site (above "threshold quantities") and
emergency and hazardous chemical inventory forms (amounts and locations of chemicals)
to state emergency response commissions, local emergency planning committees and local
fire departments. In turn, the state emergency response commissions and local emergency
planning committees make the hazardous chemical information available to the public. Aside
from material safety data sheets, companies must also report on hazardous chemicals by
submitting annual inventories of these same hazardous chemicals to the local emergency
planning committee, the state emergency response commission, and the local fire
department.13
2.1.2.2. Toxic Chemical Release Reporting
Toxic chemical release14 reporting under '313 applies only to facilities that meet
certain requirements.15 An estimated 30,000 facilities nationwide are subject to reporting.
While these reports are intended for community use, some are submitted to local
emergency planning committees, state emergency response commissions and fire
departments. The annual release reports are submitted to EPA headquarters and to the state
environmental, health, or emergency response agency which coordinates with the state
emergency response commissions. EPA is required to compile them into a national
computerized data base called the Toxic Release Inventory or "TRI". This data must be
accessible to the public through computer telecommunications and other means.
2.2 The Legal Framework of EPCRA Section 313, the Toxics Release Inventory
EPCRA is nationally administered by the U.S. EPAB no portion of the statute is
delegated to the states for implementation.16 The basic requirement of EPCRA Section 313"
is that owner's and operator's; of covered facilities must complete toxic chemical release
forms (hereinafter "Form R" or "Form A") for each toxic chemical listed under the Act tha
was manufactured, processed, or otherwise used above established thresholds during eacl-
preceding calendar year.18 Specifically, a Form R or Form A must be submitted if th«
following criteria are met: (1) the facility is in Standard Industrial Classification Codes 20
39,19 or one of nine additional Standard Industrial Classification Codes added in a May, 199:
rule-making;20 (2) the facility has 10 or more full time employees, or the hourly equivalent;2
(3) the facility manufactures or processes over 25,000 pounds, or otherwise uses over 10,001
pounds, of a listed toxic chemical during the preceding calender year.22 Where these criteri:
are met, a regulated entity must submit a Form R or Form A regardless of any liste<
chemicals actually released into the environment.23
2.2.1 The Data Collected
The primary source of TRI information, the Form R,24 (See Annex) is due annual!
to EPA and the state where the facility is located by July 1.2S The Form R contain
information such as: the quantity of each toxic chemical entering each environment;
media;25 amounts of each chemical shipped from the facility to other locations for recycling
energy recovery, treatment, or disposal;27 amounts of each chemical recycled, burned fc
energy recovery, or treated at the facility;28 maximum amount of chemical present on-sit
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 87
at the facility during the year;'" types of activities conducted at the facility involving the toxic
chermcal;3o source reduction activities;" environmental permits held;" and name and
P ™ftnr T f? PerS°n t0 C°ntact C0ncernin9 to>
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88 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.2 Advantages to Reporting
Reporting benefits government, industry, and citizens. Citizens can put together
a complete record of hazardous substances in their district, therefore gaining a greater role
in decision making and planning at a grass roots level; government can better prepare for
an emergency spill; and industry can use the release information to assess their operations
with the objective of reducing the amount of toxic chemicals they use and release into the
environment. The entire structure of EPCRA is to identify risks and requires community
action to better safeguard its health and environment.
3.3 Improved Targeting of Industry
While EPA generally has been able to focus its attention on traditional smokestack
industries: steel, iron, automobiles, petrochemicals, by virtue of their public visibility and
need for Clean Air and Clean Water permits, some categories of American industry, due to
their comparatively small size or scatter distribution, failed to attract the full measure of the
Agency's collective attention.
With the ability to electronically manage the TRI data into categories,51 EPA can
readily see at a glance what areas of the country have the largest concentrations of chemical-
producing facilities and search for sites of particular chemicals of concern, such as
carcinogens or bioaccumulating substances. In addition to company name, address and
zip code, the TRI Form R requires the longitude and latitude of the facility. This allows EPA
to search the TRI by zip code, watershed, airshed or identical regional sector.
Industry sectors that traditionally might not have appeared on Agency "intuitive" lists
of likely violators also come into clear focus through the TRI. One example has been the
furniture category, Standard Industry Code 25. Generally smaller to mid-size in operations,
furniture manufacturing in the United States releases approximately 100 million pounds of
chemicals, including some very toxic substances such as acetone and toluene.
Enforcement actions have been initiated at more than 10 furniture manufacturers for not
reporting to the toxics release inventory.
In addition to looking for larger sources of environmental releases in neighborhoods
or environmental areas of concern, EPA can check lists of Standard Industry Code sector
facilities against the list of facilities that have reported to the TRI. Facilities that have not
have reported to TRI might also have neglected other reporting requirements of other statutes,
including treatment storage and disposal requirements for hazardous waste.
3.4 Pollution Prevention
A remarkable and startling outcome of TRI reporting has been the response of
American business to reduce emissions in reaction to TRI reporting. Anecdotal reports
coming to EPA from the first reporting cycle in 1988 suggests that many corporate executive
and managers were shocked by the high volume of chemicals used and reported to the TRI.
Reportedly executives at Monsanto Corporation, alarmed to be the number one company
for total emissions in the nation, vowed to reduce emissions and successfully did so before
the next reporting cycle. The same was true with a top emitter for 1989: Kodak. Companies
anxious to be number one in sales; customer loyalty, product recognition, do not want to
be number one in chemical emissions for the U.S.; their state; their county; township; city;
zip code or watershed.
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 89
Significa"t'y' many voluntary reductions in chemical usage and emissions come
™« ofaSSHa , les|9n chemical usage is reassuring to regulators long
accustomed to command and control technology and fosters an increased willingness to
consider innovative regulatory approaches to environmental problems.
3.5 Environmental Justice
h0nQfi • ?"«arf I Whfre T°Xic Release lnventory Reporting information has had a particularly
beneficial effect has been m the area of Environmental Justice * Minority and low income
SinZ^h,C3n EXPf e"f hi?her levels of environmental hazards due to the interplay of
siting of highly concentrated polluting activities in areas where land values are low and sitinq
of low income housing where housing prices are low. Evidence of unequal health risks is
itJTic M,? by-a ^&L "Umber °f death rates from cancer53 and Wflher incidence and
eves of lead Po,son,ng« Having access to toxic release chemical inventory information
-™ ? f 3 9 means °f raising awareness and helps to empower the local
community to seek answers to their environmental concerns.
* FACILITY OBLIGATIONS UNDER EPCRA
The Emergency Planning, Community Right to Know Act requires facilities to adhere
:o emergency planning, notification, and reporting requirements.
M Planning Obligations
*-A tt,Unde/ EPCRA'S emergency planning provisions,55 facility owners and operators must
otify their state emergency response commission5* and the local emergency planning
.ommittees "if they have extremely hazardous substances present above "threshold
Jlannmg quantities. 58 A second obligation is to participate in emergency planning by
epresentmg their facilities as members of the local emergency planning committees. The
iS^tTT1^ Tf inV°'Ved Since a" have very imP°rtant interests at stake, most
mportantly, the health and safety of the community.
A third obligation of emergency planning requires the facility to designate a facility
3n^ent s?™° Wi" ParticiPate in the emergency planning process as a facility emergency
oordinator." This requirement creates a more efficient relationship between the facility and
^nTmT Fina"y'iuP°n recluest fram the emergency planning committee, the facility
lust promptly provide information to such committee as necessary for developing and
npiementing the emergency plan.80
-.2 Emergency Notification by Facilities
-2-1 Types of Releases Requiring Mntifinatinn
Notification by facilities.is imperative where accidental releases of hazardous
ubstances in excess of "reportable quantities" has occurred. There are three types of
leases under EPCRA Section 304. The first is a hazardous chemical which is produced
oemn°r J ' W^'? ^-quires a notice by the Comprehensive Environmental Response,'
ompensation and Liability Act §103(a)81 is discussed below
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90 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The second type of release involves an extremely hazardous substance which
originates from a facility at which hazardous chemicals are produced, used, or stored but
are not subject to the notification requirements of 103(a) Comprehensive Environmental
Response, Compensation and Liability Act. This type of release requires the same
procedural notification as the first type of release only if the release is one listed in
•304(a)(2)(A) (B) and (C).62 EPA may establish by regulation the specific amount that must
be spilled to'constitute a reportable quantity. Until a quantity for an extremely hazardous
substance is established by regulation, the quantity shall be 1 pound per release of released
substances requiring notice.
The third type of release requiring notification is of a substance which is a 103(a)
Comprehensive Environmental Response, Compensation and Liability Act hazardous
chemical release produced, used or stored at a facility. The distinguishing feature here is
that such a release is of a substance which is not on the list referred to in '302 "substances
and facilities covered and notification" of EPCRA. The notice requirements of this provision
provide a distinction between releases of substances for which a reportable quantity has been
established under '102 of Comprehensive Environmental Response, Compensation and
Liability Act and those for which a reportable quantity has not been established.
4.2.2. Notice
The first two types of releases require notice which is to be given immediately after
the release by the owner or operator of a facility (by such means as telephone, radio, or in
person) to the community emergency coordinator for the local emergency planning
committee for any area likely to be affected by the release and to the state emergency
response commission of any State likely to be affected by the release. With respect tc
transportation of a substance or storage incident to transportation, the notice requirements
of a release shall be satisfied by dialing 911 or, in the absence of a 911 emergency telephone
number, calling the operator.64
After a release an owner and operator of a facility must also provide a written follow-
up emergency notice (or notices, as more information becomes available) setting forth anc
updating the information. This notice should include actions taken to respond to and contair
the release; any known or anticipated acute or chronic health risks associated with th<
release; and where appropriate, advice regarding medical attention necessary for exposec
individuals.65
4.2.3 Contents of Notice
Notice shall generally include each of the following to the extent known at the tim
of the issuance of the notice: the chemical name or identity; indication of whether th
substance included under EPCRA; an estimate of the amount of release; time and duratior
the medium or media into which the release occurred; potential health risks; P°ssibl
precautions to take as a result of the release; and the name and telephone number of th
person to be contacted for more information.65
4.3 Reporting Requirements
Reporting requirements involve two separate types of substances: hazardoi
chemicals and toxic chemical releases.
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 91
4-3-1 Hazardous Chemical Reporting
sheets oS-Tnd0*6™? reP°?in9/equires both the submission of material safety data
sneets or lists57 , and hazardous chemical inventory forms68 . The owner or ooerator of am/
facihty wh,ch is required to prepare or have available a material tj ^SSitfoTI
a ™ES ^mical under the Occupational Safety and Health Act of 1 970- must subm"
a material safety data sheet for each such chemical, or a list of such chemicals*- on .52
ememf6 ab,°Ve threSh°'d qUantitieS' ThiS information mSt flSn be^e^ thScS
sssx ^s^r s sr rgency — ~- -- £st
™S
form to L^?80 PrSPare and, SUbmit an emer9ency and hazardous chemical invent^
form to he local emergency planning committee, the state emergency resoonse
comm.ss.on and the fire department with jurisdiction over the facility - response
4-3-2 Toxic Chemical Release Forms
have fainSnremnrtinf9(^qUiremer)t mly app{]es to °wners and operators of facilities that
Ce^e820?hmu^Q nTwI!1?0yee8:
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92 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
has primary responsibility for developing the Toxics Release Inventory regulatory program.74
Information management pertains to organizing and disseminating the data (largely Form
Rs) submitted by the regulated community. EPA's OPPTS, Information Management Division
has primary responsibility for developing the information management program. Compliance
assistance consists of outreach to the regulated community to inform regulated actors of
the statutory and regulatory obligations imposed by Congress and EPA. EPA's Office of
Enforcement and Compliance Assurance, Office of Compliance is currently responsible for
the compliance assistance program. The enforcement program penalizes the regulated
community for violating the regulatory program developed by the Toxics Release Inventory
Branch. Currently, EPA's Office of Regulatory Enforcement, Toxics and Pesticides
Enforcement Division, is responsible for nationally implementing the TRI enforcement
program.
All of these offices are located at EPA headquarters in Washington, D.C., and
oversee regional implementation of the TRI program. EPA, in addition to its headquarters
offices, has ten regional offices located throught the U.S. Each regional office is responsible
for local implementation of various programs through Memoranda of Understandings,
executed between EPA headquarters and each regional office.75 MOUs are annual
commitments to engage in specified regulatory activities such as: performing a specified
number of media specific inspections, participating in national initiatives and providing
established levels of compliance assistance to regulated entities through seminars and other
contact with the regulated community.
5.2 Expanding the Scope of EPCRA Section 313
Following these initial priorities, the regulatory program began expanding EPCRA
Section 313 through three major phases.76 Phase one increased the number of toxic
chemicals regulated under the Act. As enacted in 1986, the original TRI listed over 300
chemicals, but permitted EPA 'to add new chemicals.77 Phase one was achieved in 1994
when EPA promulgated a rule increasing the number of listed toxic chemicals from nearly
300 to well over 600.78 Almost one-half of the added chemicals were pesticides regulated
under the Federal Insecticide, Fungicide, and Rodenticide Act.79 The addition of FIFRA
regulated chemicals expanded the TRI's reach into every major statute administered by
EPA 80
The phase two expansion added additional industries to the requirements of TRI.
Originally, EPCRA Section 313 applied only to those industrial facilities classified in SIC
codes 20-39. However, in 1997, EPA promulgated a final rule,81 which added nine additional
sectors.82 Reports for these additional sectors are first due on July 1, 1999.83 Additional
industries are pending EPA review.84
EPA announced plans for a phase three expansion on October 1, 1996.85 Phase
three will add "materials accounting" data to the Form R.a5 Materials accounting data tracks
the use of chemicals throughout their life, from the time they enter a facility, to the time they
exit.87 While the phase three expansion is not without controversy,88 it is fully supported
by the Clinton Administration.'39
EPA is also planning to lower the reporting threshold amounts for certain persistent
bioaccumulative toxins.90 These are chemicals already listed on the TRI that pose
heightened risks because they are persistent (stable for long periods in the environment) anc
bioaccumulative (build up in the environment, especially in food chains).91 Because PBTs
are typically manufactured below the current threshold amount of 25,000 pounds, they are
often excluded from TRI reports.92
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 93
There have been expansions of the TRI program from forces outside EPA as well
Even before EPA completed its Phase one expansion, Congress itself added to the TRi by
passing the Pollution Prevention Act of 1990 .» The Pollution Prevention Act is an
independent statute that directs regulated entities to strive for pollution reduction « Where
pollu ion i prevention is not feasible, the Pollution Prevention Act encourages industry to
recycle." Only where recycling is not feasible, should industry resort to treating disposing
or releasing pollutants into the environment* The Pollution Prevention Act was implemented
L K*9 JuSJ reP°rtin9 requirements of EPCRA Section 313, and are reflected in Section
Si hr°rm Wh6re EPCRA SeCti°n 313 indirect|y encourages pollution prevention
through public exposure, the Pollution Prevention Act directly requires regulated entities to
report progress toward pollution prevention.98
ann.°uncement of phase three, the White House expanded the
^ • !13- °n AugU8t 8l 1"5' President Clinton Sj9ned executive order
12969 which subjected federal facilities to the TRI reporting requirements." Although EPA
can not assess penalties against federal agencies that violate EPCRA Section 313 liability
is the first step toward deterrence.100
5.3 Managing the Information
t TDI rUbUCly available '"formation is the driving force behind the TRI, and the end result
of TRI administration. As the TRI becomes more publicized, the data are put to greater and
more innovative use. Federal, state, and local governments use TRI data to evaluate existing
environmental programs and set regulatory priorities.™ Community groups generate their
own reports based on TRI data, highlighting top polluters, evaluating the regulated
SITU ~? Pr°9Tof ^T d redUdng pdlution' and interpreting risks posed from certain
chemical releases.™ Finally, and perhaps at the heart of the TRI program, industry is able
£
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94 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE- AND ENFORCEMENT
EPA took every opportunity to inform the regulated community of their responsibilities under
EPCRA Section 313 prior to any enforcement activities. Ignoring these outreach efforts prior
to implementing the enforcement program would result not only in potential litigation risks,
but also in lower compliance rates, and a diminished attainment of the Statute's objectives.116
6 ENFORCEMENT
USEPA recognized early in the life of this program that for it to be effective,
information had to be credible and those who report cannot be at an economic disadvantage
compared to those who ignored the reporting requirements. Enforcement actions under
EPCRA exceed 1,500 administrative penalty cases, with more than 100 published decisions
by administrative law judges, all generally favorable to the letter and spirit of this important
statute Significantly, many of the targets of enforcement have been facilities without-prior
federal environmental violations. One explanation has been that many EPCRA facilities have
not been required to apply for or maintain federally-issued or administered operating or
discharge permits under the Clean Water Act, Clean Air Act or Resources Conservation and
Recovery Act. Examples of such cases include penalty actions against operators in the food
industry. Citrus Hill Orange Juice, $15,000 paid; Murray's Meats. $48,000; General Mills;
$112,000 paid: Dove Bar Ice Cream, $75,000 paid. The penalties paid by these companies
was for failure to report the release of a commercial refrigerant, ammonia. Though each facility
was regulated and inspected regularly by the federal Occupational Safety and Health
Administration and United States Department of Agriculture OSHA and the USDA, none were
subject to the federal permit requirements of the Clean Air Act, Clean Water Act or Resource
Conservation and Recovery Act.
EPCRA has truly become the new "cradle to grave" statute, having seen cases
involving baby cribs Riverside Furniture (seen TR! chemicals not reported to the EPCRA
inventory) to Clarksburg Casket (chemicals used in processing wood and metal coffins).
The primary objective of enforcement is to ensure achievement of the environmental
protection and the results from environmental requirements and to deter violations of
environmental law. When enforcement is necessary, actions must be calculated, swift, and
equitable. Through EPCRA Section 325(c), EPA is given broad enforcement authority to seek
"a civil penalty ... not to exceed $25,000 ..." for violating any requirement of Section 313,11
or the companion Pollution Prevention Act.118 Through this broad grant of authority EPA built
the TRI enforcement program. Initially, enforcement focused on those who failed to submit
TRI forms.119 However, as the TRI requirements expanded,120 and the universe of non-
reporters diminished,121 enforcement priorities have adjusted accordingly. Currently,
enforcement priorities include upholding the quality of the data actually submitted, and
deterring non-reporters.
6.1 Inspections of Release Reporting: a new challenge
Issues regarding whether a facility falls within the criteria of types of facilities which
need to report is easily such as determining the number of employees required for TRI
reporting eligibility, namely ten full time employees or more. The same is true for making a
determination of report eligibility regarding the facility Standard Industrial Code, which must
be between Standard Industrial Classification Codes 20 to 39. Standard Industrial
Classification Codes are assigned to representative manufacturing and commercial activities
by the United States Department of Commerce. By its very nature, however, inspectors
checking for the veracity of the actual data in TRI reports require a process oriented
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 95
inspection that tracks from raw materials to waste the handling and quantities of toxic
substances and which attempts to determine independently whether there has been a fair
accounting made. The Inspectors collect evidence of non-compliance on-site, and prepare
an inspection report for the enforcement case development officer. Compliance with TRI
reporting requirements or the companion requirements for immediate reporting of accidental
releases of chemicals requires a careful examination of chemical inventory records, raw
materials management, chemical use, storage and release records. Challenges to
inspectors and case development personnel include the difficulties of being able to reconcile
facility inventory records with actual process or disposal information. Frequently inspectors
rely upon chemical use or release information that is contained in discharge or emissions
reporting information subject to the federal Clean Air Act, Clean Water Act or Resource
Conservation and Recover Act.
6.2 The Enforcement Response Policy
To implement the broad enforcement mandate expressed in the statute, EPA first
developed an Enforcement Response Policy for EPCRA Section 313 in 1988.122 The
Enforcement Response Policy is a statement of enforcement policy intended to guide
enforcement actions and to alert regulated entities to the consequences of non-
compliance.123 As EPA headquarters, and each regional office initiates enforcement
actions,124 consistency in enforcement can only be obtained when all enforcement actions
are consistent with the Enforcement Response Policy. The Enforcement Response Policy
explains what constitutes a violation of EPCRA Section 313,125 the appropriate response
by EPA,126 and the proper penalty to propose in a complaint.127
6.2.1 Penalties for Not Reporting123
The government may assess civil and administrative penalties of $10,000 to $75,000
per day against facilities that fail to comply with the above provisions. Anyone who knowingly
and willfully fails to provide emergency release notification is subject to criminal penalties
of up to $50,000 or five years in prison. To date, EPA has issued more than 500 enforcement
actions for EPCRA violations, including 200 for failure to report emergency releases.
6.2.2 Initiation of Actions against the Industry
The state emergency response commission, local emergency planning committee,
or the state or local government may initiate actions against facility owners or operators for
failure to comply with EPCRA requirements. Citizens may initiate civil actions against
facility owners and operators for failure to comply with the law. Citizen suits129 are a powerful
enforcement tool against industry since the public image of any industry is of paramount
importance. When a citizen suit is initiated, an industry may quickly change its behavior
because of public pressure and the need to be perceived as an environmentally sound
industry.
After EPA concluded four years of TRI enforcement, the Enforcement Response
Policy was revised in 1992.130 The revision permitted consideration of developing
administrative case law,131 statutory and regulatory expansions of EPCRA Section 313,132
and evolving enforcement priorities. Currently, EPA is drafting a third revision to the
Enforcement Response Policy. This latest revision is expected to be implemented by May,
1999. The new Enforcement Response Policy will better define enforcement procedure for
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96 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
recently established enforcement priorities.133 Occasional Enforcement Response Policy
revisions permit the TRI enforcement program to adjust to internal and external changes,
while maintaining the basic structure of TRI enforcement actions.134
6.2.3 Targeting Strategies
EPA develops many successful targets through electronic information exchange.135
The Agency has amassed environmental data about many regulated entities through
requirements of various environmental laws. Electronically Linking media specific databases
provides EPA with a panoply of targeting data.136 Through electronic targeting, EPA is able
to identify probable non-compliance prior to initiating an inspection for more efficient use of
inspection resources.
Historically, the enforcement program devoted all resources toward targeting non-
reporters.137 However, as the TRI program matured, enforcement began examining the quality
of the TRI data submitted to EPA and the states.138 As the rate of publicity139 and TRI data
use increase,140 data quality is increasingly critical to the right to know, and with increasing
public exposure and the self-reporting nature of the TRI, there is both the opportunity and
the motive to submit inaccurate data. By simply comparing typical reports submitted by
similar industrial sectors, EPA targets likely data quality violations for inspection.
6.2.4 Building Effective Cases
EPA trains all enforcement personnel through the National Enforcement Training
Institute (hereinafter "NETI").141 Litigating EPCRA Section 313 violations requires
coordination among the EPA Inspector, Case Development Officer, and attorney.
The Case Development Officer assembles all elements of proof from the inspection
report and elsewhere, calculates the proposed administrative penalty based upon the
Enforcement Response Policy,142 drafts a Complaint, and presents the case file to the
attorney for review. The Case Development Officer also provides technical expertise on
scientific issues and serves as a penalty witness should the matter proceed to hearing. The
attorney leads all EPA TRI litigation efforts. The attorney first reviews the case file to
determine whether there is sufficient evidence to warrant an administrative complaint,143 a
judicial referral to the Department of Justice,144 or a criminal referral to Department of
Justice.145 If a Complaint is filed with either the regional or headquarters hearing clerk, the
attorney is responsible for all ensuing litigation or settlement negotiations.146
EPA generally builds TRI cases through one of two methods. Depending upon the
amount of evidence already possessed, an EPA inspector may inspect a possibly non-
compliant facility, and/or provided an open investigation has yielded credible evidence of a
violation, an EPA attorney may issue a Show Cause Letter demanding that a targeted facility
provide evidence invalidating EPA's allegation. Regardless of the method employed, it is
critical to gather evidence of each element necessary to establish a prima facie case prior
to filing the Complaint.147
6.2.5 Achieving Deterrence
Oeterrence through enforcement upholds the community right to know and ensures
accurate data is reported to EPA and the states.148 There are two primary models o
deterrence upon initiating enforcement actions.149 Some believe that negotiating man}
settlements by reducing penalties best upholds deterrence by conserving enforcemen
resources, which enables a greater EPA field presence. Others believe deterrence is bes
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 97
achieved through v.gorous enforcement and litigation of fewer cases, which culminate in
widely publicized administrative decisions and penalty orders.150 EPA will either settle or
litigate depending upon the facts and circumstances of each individual case However
whether or not a case is settled or litigated, the Enforcement Response Policy provides
consistency in the assessed penalty.151
Regulated entities may avoid litigation by self disclosing violations. EPA encourages
self disclosures by applying its "Audit Policy." 1« Where the criteria for the Audit Policy are
TlEn ^ mitigates Pena|ties either 75, or 100%. In fact, most self disclosures under the
Audit Policy involve violations of EPCRA Section 313.153
Many administrative penalty action involving EPCRA TRI or emergency release
reporting violations are settled without further court proceeding. Generally the evidence of
violations is not at issue, leaving only the size of the civil penalty to be paid. Because EPA's
enforcement response policies can specify penalties as high as $27,500 per violation per
day, companies with 10 to 20 violations may face substantial civil penalties. Many companies
choose to propose using the EPA's Supplemental Environmental Policy154
6.3 The Future of TRI Enforcement
The enforcement program is guided by available resources and regulatory priorities
wh.ch are in turn influenced by political factors. Currently, expanding the Right-to-Know is
one of the Agency's top ten goals.15" As EPCRA Section 313 is expanded to cover a larger
universe of regulated entities and listed chemicals or expanded to included additional
obligations, EPA attempts to shift enforcement priorities accordingly. However there are
many more resources devoted to regulatory development than to enforcement15S' If the TRI
program is continually expanded without a corresponding increase in the enforcement
budget, some regulatory objectives will not be measured or assured. Despite resource
shortages, TRI Enforcement will increasingly focus more on data quality. However because
there is not 100% compliance with EPCRA Section 313,15" and because of recent
expansions,159 EPA will not abandon enforcement actions against non-reporters.
7 RESULTS
Because the Toxics Release Inventory (TRI) is an information based program, there
are substantial data on which U.S. Environmental Protection Agency (USEPA) and others
can monitor its impact. The most recent national report on TRI data, the 1997 TRI Public
Data Release (PDR), compares releases from 1988, 1995, 1996 and 1997 It includes
aggregate data on releases, both on and off-site, to specific media (i.e. air, land surface
water, treatment type, etc) and by chemical. A copy of the report can be accessed on the
Internet at http://www.epa.Qov/opDtintr/tri/tri97/access.htm A summary of the entire TRI
database would be too complex to report here other than in a highly simplified way since
reporting requirements, chemicals covered, and the regulatory context have all changed
significantly over these time periods. It is therefore often difficult to distinguish real changes
in source reduction and pollution control, from paper changes resulting from release
estimation techniques, reporting definitions, changes in levels of production and the like
Between 1988 and 1997, releases of chemicals of the TRI have decreased 43% or 1 45
billion pounds, decreasing in all on-site media releases (using the 1988 base set of
chemicals). Air releases, both fugitive and point source, were the most significant of any
of the decreases, declining by 1.20 billion pounds or 55%. Surface water releases decreased
63/o, underground injection decreased 22%, on-site land releases decreased 26% and off-
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98 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
site releases increased 1%. Between 1995 and 1997, releases decreased approximately
2% or 38.8 million pounds (using the 1995 core set of chemicals— the chemical expansion
base set of chemicals). Air releases, both fugitive and point source, decreased 16% or 248
million pounds. Surface water releases actually increased 24%, underground injection
decreased 6%, on-site land releases increases 10%, and off-site releases increased 48%.
One of the factors contributing to the large increase in the off-site release category is related
to the solidification/stabilization of metals and metal compounds in hazardous waste.
Although air releases continue to decrease in recent reporting years, the rate of this
decrease is falling. At the same time, certain media releases have increased (off-site
releases to land in particular) and the overall decrease in total releases from one year to the
next has become smaller. Although total releases between 1995 and 1997 have decreased,
total releases have slightly increased between 1996 and 1997. These data trends point to
the need to maintain such information over the long term.
From the perspective of direct results of environmental compliance and enforcement,
the magnitude of these changes cannot be attributed just to compliance with TRI reporting
requirements for obvious reasons. However, USEPA does maintain information on
environmental results achieved through settlement agreements with violators of reporting
requirements which include commitments to reduce or eliminate pollution in lieu of some
of the assessed penalties. In fiscal year 1997, there were 376 cases related to
non-compliance with the Emergency Planning and Community Right-to-Know Act (EPCRA)
with 130 of these cases leading to settlement agreements with quantifiable environmental
results. These cases include violations of both the TRI and non-TRI requirements of the law.
Of the 130 agreements in 1997, 74 resulted in improved protection of human health and 46
resulted in increased protection of ecosystems. There were also 67 cases that resulted in
increased worker protection, four that led to greater environmental restoration, and 42 that
increased public awareness. Further, these settlement agreements resulted in the
elimination of more than 100 million pounds of air pollutants in 1997 and more than 800,000
pounds in 1998. The majority of these reductions consisted of volatile organic compounds
but also included reductions in particulate matter and carbon monoxide levels. The
environmental results arise because the enforcement actions go beyond increased EPCRA
reporting and recordkeeping to include specific chemical use reductions, industrial process
changes, and changes in emissions or discharges.
8 CONCLUSION
American manufacturing and industry of all types must be responsible to their
pommunities and take EPCRA seriously to avoid heavy fines or avoid risking the loss of a
business EPCRA is an important planning tool for government - state and local - as well
as its citizens. Most importantly, EPCRA allows citizens to work toward Environmental
Justice for their communities by gaining a sense of responsibility and control over the
environmental quality of their neighborhoods. Implementing EPCRA will empower the public
to bring a positive change in the environmental health of minority and low-income
communities. In the long run, EPCRA will avoid potential environmental disasters and save
liv@s
As the world implements TRI and other PRTR legislation, pollution can be analyzed
globally for the first time. TRI and other PRTR information will continue to have more and
innovative uses as more countries implement right to know legislation. However, because
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 99
of the self reporting nature of the TRI and other PRTRs, a vigorous enforcement program is
a necessity to ensure the integrity of. the data, and any ensuing analysis. Although the nature
of TRI violations deviate from traditional enforcement programs where violations produce
actual harm to human health or the environment, it is nevertheless essential since the TRI
remains a valuable regulatory tool for the community, for state and government planning and
targeting, and as an incentive for business to prevent pollution.
APPENDIX I: RESOURCE LIST
1. TRI User Support Service (202) 260-1531. Provides assistance using and
assessing TRI data.
2. EPCRA Hotline 1-800-424-934e>. To request documents or pose regulatory
questions.
3. Envirofacts Warehouse: http://www.epa.gov/oDDt/tri. Conduct data analysis from
many EPA regulated statutes.
4. Office of the Administrative Law Judge: Obtain recent
administrative opinions.
5. EAB Homepage: . Obtain recent administrative
decisions.
6. General Environmental Law Links on the World Wide Web (various)
EPA has a toll free Hotline to answer questions about EPCRA: 1-800-535-0202.
ENDNOTES
1. Publ L. 99-499, title 111, Sec. 313, Oct. 17, 1986, 100 Stat. 1741.
2. See, e.g., [CAA; CWA; CERLCLA; Environmental Law Textbook].
3. See CAA; CWA; CERCLA; Environmental Law textbook.
4. See generally 42 U.S.C. §§11045(c), 11023(a), 11023(g); see a/so 40 C.F.R. Part
372 (implementing 42 U.S.C. § 11023 and describing additional requirements such
as record keeping and supplier notification).
5. See 1997 Public Data Release available at .
6. EPCRA Sections 1001-11003.
7. EPCRA Section 11004.
8. EPCRA Sections 11021-11022.
9. EPCRA Section 11023.
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100 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
10. EPCRA Section 11049(4) defines facility as " all buildings, equipment, structures,
and other stationary items which are located on a single site or on contiguous or
adjacent sites and which are owned or operated by the same person (or by any
person which controls, is controlled by, or under common control with, such
person)."
11. EPCRA Section 11002 (a)(3)(A)(ii).
12. EPCRA Section 11004.
13. This law requires a two-tiered approach for annual inventory reporting. Under Tier I,
a facility must report the amounts and general location of chemicals in certain
hazard categories. A Tier II report contains basically the same information, but it
must name the specific chemical. Congress gave companies the flexibility to
choose whether to file Tier I or Tier II forms, unless the State Emergency
Response Commission, Local Emergency Planning Committee, or fire department
request Tier II. Tier II reports provide emergency planners and communities with
more useful information. EPCRA Section 11022(a).
14. Information that must be gathered and reported under this section of the Act
includes:
1. Which toxic chemicals were released into the environment during the
preceding year.
2. How much of each chemical went into the air, water and land.
3. How much of the chemicals were transported away from the site of the facility
for disposal.
4. How chemical wastes were treated on-site.
5. The efficiency of that treatment.
15. The applicable facilities are those which have (a) 10 or more full-time employees
and that are (b) in Standard Industrial Classification Codes 20 through 39 and (c)
that manufactured, processed, or otherwise used a toxic chemical listed under
EPCRA in excess of the quantity established under the statute. EPCRA Section
11023.
16. Some federal statutes have in fact been delegated to states to varying degrees for
implementation. See, e.g., CAA; CWA.
17. Other requirements are imposed administratively by authority of EPCRA ' 328 and
include record keeping obligations and supplier notification obligations. 42 U.S.C.
§ 11048; 40 C.F.R. §§ 372.10, 372.45; see a/so 40 C.F.R. § 372.18.
18. 42 U.S.C. § 11023(a); 40 C.F.R. § 372.22.
19. 42 U.S.C. § 11023; 40 C.F.R. § 372.22. SIC codes 20-39 consist largely of the
manufacturing sectors.
20. 62 Fed. Reg. 23834 (May 1, 1997). SIC codes added include the following: major
codes 10 (except 1011, 1081, and 1094), 12 (except 1241), 4911, 4931, 4939
(limited to facilities that combust coal and/or oil for the purpose of generating
power for distribution in commerce), 4953 (limited to facilities regulated under the
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 101
Resource Conservation and Recovery Act, subtitle C, 42 U.S.C § 6921 et seq )
5169, 5171, and 7389 (limited to facilities primarily engaged in solvent recovery' '
services on a contract or fee basis). See 40 C.F.R. § 372.22 for determining
primary SIC codes. Note that the first reports were due for the newly added SIC
codes on July 1, 1998.
21. 40 C.F.R. § 372.22. See 40 C.F.R. § 372.3 for the hourly equivalent of 10 full time
employees.
22. 42 U.S.C. § 11023; 40 C.F.R. § 372.22.
23. A common mistake is to assume no report is necessary if there are zero releases
of a toxic chemical. In fact, the statute requires reporting even where there are
zero releases. 42 U.S.C. §11023(a). Failing to abide by any requirement EPCRA
section 313 or the regulations promulgated under that authority is an actionable
offense, subject to penalties not to exceed $27,500. 42 U S C S11045(cV 40
C.F.R. § 372.18; see also Part 3.3.1 infra. '
24. Office of Pollution Prevention and Toxics, Environmental Protection Agency, Toxic
Chemical Release Inventory Reporting Form R and Instructions (1997) ("Form R")
available at http://www.eDa.aov/opptintr/tri .
25. Although the statutory deadline is July 1, EPA has permitted forms to be
submitted at later dates from some reporting years due to international delays
Such actions are announced in the Federal Register on an individual basis See
e.g., 62 Fed. Reg. 28,651 (May 27, 1997).
26. Form R, supra note 23, at part II, § 5.
27. Form R, supra note 23, at part II, § 6.
28. Form R, supra note 23, at part II, § 7(a)-(c).
29. Form R, supra note 23, at part II, § 4.
30. Form R, supra note 23, at part II, § 3.
31. Form R, supra note 23, at part II, § 8.
32. Form R, supra note 23, at part I, § 4.
33. Form R, supra note 23, at part I, §§ 4.3, 4.4.
34. See 42 U.S.C. § 11023(j); infra Part 3.2.1.
35. See id. § 11023(d) (describing the process to list and delist a chemical from the
requirements of EPCRA). Congress provided the initial list of chemicals. Id. §
11023(c}.
36. Id.
37. Id. §11023(e).
38. Id.
39. 42 U.S.C. § 11023(b)(1)(A).
40. Id. at§11023(b)(1)(B).
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102 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPUANCE AND ENFORCEMENT
41. /d.
42. See part 3.2.1 infra.
43 Compare 42 U.S.C. § 11045(c) with 28 U.S.C. § 2561 (amended by 31 U.S.C. §
3701) and 40 C.F.R. Part 19. Although EPCRA § 325 (c) permits penalties not to
exceed $25 000 per violation, recent legislation adjusted statutory penalties
upward to account for inflation. 28 U.S.C. ' 2461 (amended by 31 U.S.C. §3701)^
Thus, EPA now assesses penalties up to $27,500 for violations of EPCRA § 313.
40C.F.R. Part 19.
44. 42 U.S.C. §11045(c)(3).
45. 42 U.S.C. § 11046 (a)(1)(A)(iv).
46. Id. at§11046(f).
47. Id. at§11046(d).
48 See 42 U.S.C. § 11045(b)(1)(C). Penalty factors include: "the nature,
circumstances, extent and gravity of the violation or violations and, with respect to
the violator ability to pay, any prior history of such violations, the degree of
culpability economic benefit or savings (if any) resulting form the violation, and
such other matters as justice may require." Id. Although these factors expressly
apply to the emergency notification provisions of EPCRA, EPA administrative
decisions have applied them to Section 313 penalty assessments as well. See
e g Apex Microtechnology. EPCRA-09-92-00-07, Initial Decision (Frazier, May 7,
1993); r.nlnnial Processing. Inc.. II EPCRA-89-0114, Initial Decision (Frazier, June
24, 1991).
49. See part 3.3.1 infra.
50. EPCRA §11005.
51 Categories such as - (a) the total toxic releases by state - the top 25 counties with
the largest TRl releases; (b) the 50 U.S. cities with the largest TRI releases; (c)
the TRI releases by industry category; (d) the top 50 facilities with the largest TRI
releases; and (e) the regional or geographic distribution of the top 25 chemicals
released.
52 On February 11, 1994, President Clinton signed the Presidential Executive Order
#12898 "Federal Actions to Address Environmental Justice in Minority Populations
and Low-Income Populations," requiring each federal agency to make achieving
environmental justice part of its mission by identifying and addressing
"disproportionately high and adverse human health or environmental effects of its
programs, policies, and activities."
53 African American males had a 33% higher death rate from cancer than white
males and African American females had a 16% higher death rate from cancer
than white females. Collin, Robert W., "Environmental Equity: A Law and Planning
Approach to Environmental Racism", f1 Virginia Environmental Law Review. 501
(1992).
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 103
54. Among urban children five-years old and younger, the percentage of African
Americans who had excessive levels of lead in their blood far exceeded the
percentage of whites at all income levels. For families with incomes less than
$6,000, 68% of African American children and 36% of white children had unsafe
blood lead levels. In families earning more than $15,000, 38% of African American
children and 12% of white children had lead poisoning. Id. at 501-502.
55. EPCRA Sections 11001-11023.
56. Under EPCRA Section 11001, the Governor of each state shall appoint a State
emergency response commission. To the extent practicable, the Governor must
appoint persons to the State emergency response commission who have technical
expertise in the emergency response field. In turn, the State Emergency
Response Commissions appoint local emergency planning committees and
establish emergency planning districts. The State Emergency Response
Commissions supervise and coordinate the activities of local emergency planning
committees. The SERCs are also responsible for establishing procedures for
receiving and processing requests from the public for information under EPCRA.
57. Under EPCRA §11001, local emergency planning committees are made up of
elected State and local officials; law enforcement, civil defense, fire fighting, first
aid, health, local environmental, hospital, and transportation personnel; broadcast
and print media; community groups; and owners and operators of facilities. Local
emergency planning committees establish provisions for public notification of
committee activities, public meetings to discuss the emergency plan, public
comments, response to such comments by the committee, and distribution of the
emergency plan. Local emergency planning committees must also establish
procedures for receiving and processing requests from the public for EPCRA
information. After emergency response plans are established by the local
emergency planning committees, there are reviewed at least annually. See EPCRA
§11003(c) for the emergency response plan required provisions.
58. EPCRA §11002(a)(3)(A)(i). Under this section, the Administrator must publish a
threshold planning quantity for a substance; if the Administrator fails to establish
this threshold quantity, then the quantity shall be 2 pounds until the Administrator
publishes regulations establishing a threshold for the substance. EPCRA
§11002(a)(3)(C).
Note that §11042 of EPCRA provides for withholding of information by facilities
where trade secret requirements are met. Trade secret factors must be met and
findings of sufficient assertions must be determined by the Administrator.
59. EPCRA §11003(d)(1).
60. EPCRA §11003(d)(3).
61. Comprehensive Environmental Response, Compensation, and Liability Act of 1980
42 U.S.C.A. §9603(a). Hereafter "CERCLA".
62. EPCRA §11004(a)(2)(A), (B) and (C) are as follows:
(A) is not a federally permitted release as defined in section 101(10) of CERCLA
[42 U.S.C.A. §9601(10)],
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104 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
(B) is in an amount in excess of a quantity which the Administrator has determined
(by regulation) requires notice, and
(C) occurs in a manner which would require notification under section 103(a) of
CERCLA [42 U.S.C.A. §9603(a)].
63. SeeEPCRA§11002(a)(3)(A) and (B).
64. EPCRA§11004(b)(1).
65. EPCRA §11004(c).
66. EPCRA §11004(b)(2):
(A) The chemical name or identity of any substance involved in the release.
(B) An indication of whether the substance is on the list referred to in section
11002(a) of this title.
(C) An estimate of the quantity of any such substance that was released into the
environment.
(D) The time and duration of the release.
(E) The medium or media into which the release occurred.
(F) Any known or anticipated acute or chronic health risks associated with the
emergency and, where appropriate, advice regarding medical attention
necessary for exposed individuals.
(G) Proper precautions to take as a result of the release, including evacuation
(unless such information is readily available to the community emergency
coordinator pursuant to the emergency plan).
(H) The name and telephone number of the person or persons to be contacted for
further information.
67. EPCRA §11021.
68. EPCRA §11022.
69. 29 U.S.C.A. §651 et seq.
70. EPCRA §11021 (a). See a/so EPCRA §11021(a)(2) for contents of the chemical
list and §11021(a)(3) for treatment of mixtures.
71. The inventory form may contain either "Tier I", or "Tier II" information. Under Tier I,
a facility must report the amounts and general location of chemicals in certain
hazard categories. A Tier II report contains basically the same information, but it
must name the specific chemical. Congress gave companies the flexibility to
choose whether to file a Tier I or Tier II form, unless the SERC, LEPC, or fire
department requests Tier II. EPA believes that Tier II reports provide emergency
planners and communities with more useful information, and is encouraging facility
to submit Tier II forms. Many companies voluntarily provide Tier II reports. See
EPCRA §11022(a)(2) and (3). See a/so §11022(d)(1) and (d)(2) for contents of Tier
I and Tier II information.
72. EPCRA §11023(g). Information required under the release form is as follows:
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 105
(A) provide for the name and location of, and principal business activities at, the
facility;
(B) include an appropriate certification, signed by a senior official with
management responsibility for the person or persons completing the report,
regarding the accuracy and completeness of the report; and
(C) provide for submission of each of the following items of information for each
listed toxic chemical known to be present at the facility:
(i) Whether the toxic chemical at the facility is manufactured,
processed, or otherwise used, and the general category or categories of use
of the chemical.
(ii) An estimate of the maximum amounts (in ranges) of the toxic
chemical present at the facility at any time during the preceding calendar
year.
(iii) For each waste stream, the waste treatment for disposal methods
employed, and an estimate of the treatment efficiency typically achieved
by such methods for that waste stream.
(iv) The annual quantity of the toxic chemical entering each
environmental medium.
73. See EPCRA §11023 for Toxic chemical threshold amounts and §313(g) for the
information required on the Release form.
74. At the time of this Article, there is a proposed reorganization that would place the
TRI program in an Office other than OPPTS. In fact, there have been several
reorganizations in the past, changing office names and shifting programs from one
office to another.
75. To review enforcement related MOA documents, see OECA's World Wide Web
page at: http://www.epa.gov/oeca/poiguid/index.html.
76. See infra notes 54, 61, 62 and accompanying test. Less publicized expansions
included: Record keeping and supplier notification obligations. 40 C F R 55
372.10, 372.45.
77. See supra part 2.2.2.
78. 59 Fed. Reg. 61,432 (Nov. 30, 1994), codified at 40 C.F.R. § 372.65.
79. 7U.S.C. §135efseq.
80. Listed chemicals includes those also regulated by the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), The Toxics Substances Control Act
(TSCA), the Clean Air Act (CAA), the Clean Water Act (CWA), and the Resource
Conservation and Recovery Act (RCRA).
81. 62 Fed. Reg. 23,834 (May 1, 1997), codified at 40 C.F.R. §372.22.
82. The statute explicitly grants EPA authority to add new industries. 42 U S C §
11023 (b)(1)(B); see a/so part 2.2.3.
83. See 62 Fed. Reg. 23,834 (May 1, 1997) (reports first due July 1, 1999).
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106 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
84. See 63 Fed. Reg. 6691 (Feb. 10, 1998) (proposed rule to add SIC 45
Transportation by Air to the list of covered facilities under EPCRA § 313); 1996
PUBLIC DATA RELEASE supra note 1, at 16 (discussing addition of oil and gas
industries).
85. 61 Fed. Reg. 51322 (October 1, 1996).
86. Id.
87. See id.; 1996 DATA RELEASE supra note 1, at 12.
88. See, e.g., Toxic SUBSTANCES: FEW STATES HAVE CONSIDERED REPORTING REQUIREMENTS
FOR CHEMICAL USE DATA, GAO/RCED-97-154 (June 6, 1997); supra note 28; 61 Fed.
Reg. 51322, 51328; John Cunniff, The New Battlefront: Economic Intelligence,
ASSOCIATED PRESS, Sunday, March 8, 1998.
89. Expediting Community Right-to-Know Initiatives, Pres. Mem. of Aug. 8, 1995,
reprinted in 60 Fed. Reg. 41791 (August 10, 1995).
90. See http://www.epa.gov/opptintr/chemrtk/persbioa.htm ; see a/so note 21 and
accompanying text.
91. Id. Examples of PBT chemicals include: Chlordane, Benzo(a)anthracene, Mercury
compounds, Lindane, and PCBs. While many PBTs are no longer manufactured in
the U.S., they are released during treatment and disposal activities.
92. Id.
93. 42 U.S.C. §13101 etseq.
94. Source reduction is defined as any practice which (1) reduces the amount of any
hazardous substance, pollutant, or contaminant entering any waste stream or
otherwise released into the environment (including fugitive emissions) prior to
recycling, treatment or disposal; and (2) reduces the hazards to public health and
the environment associated with the release of such substances, pollutants, or
contaminants. 42 U.S.C. 13101(b).
95. 42 U.S.C. § 13101(b).
96. Id.
97. 42 U.S.C. § 13106. For a discussion on the success of EPA's implementation of
the PPA, see Toxic SUBSTANCES: EPA NEEDS MORE RELIABLE SOURCE REDUCTION DATA
AND PROGRESS MEASURES GAO/RCED-94-93 (September 23, 1994).
98. See 42 U.S.C. §13101.
99. Executive Order No. 12,969, reprinted in 60 Fed. Reg. 40989 (August 10, 1995).
100. See 42 U.S.C. § 11045(c)(1) ("Any person (other than a governmental entity) who
violates any requirement of section 312 or 313 shall be liable to the United States
for a civil penalty in an amount not to exceed $25,00 for each such violation.").
101. See40C.F.R. §372.1.
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 107
102. See, e.g.. Manufacturing Pollution (Citizens Fund, Washington D.C.), August
1992; Poisons in Our Neighborhoods: Toxic Pollution in the United States
(Citizens Fund, Washington D.C.), November 1993; AlairMacLean and Rich
Puchalsky, Where the Wastes Are: Highlights from the Records of the More Than
5/000 Facilities that Receive Transfers of TRI Chemicals (OMB Watch and Unison
Institute, Washington D.C.), April 1994; Jefferey Tryens et. a/., Making the
Difference: Using the Right-to-Know in the Fight Against Toxics (Center for Policy
Alternatives and Working Group on Community Right-to-Know, undated).
103. In fact, comparisons of TRI data from 1987 through 1996 reflect industries "have
reduced their on and off-site releases of TRI chemicals by almost 50% or 1.5 billion
pounds." Office of Pollution Prevention and Toxics, U.S. Environmental Protection
Agency, 1996 Toxics Release Inventory Public Data Release Ten Years of Right To
Know (May, 1998) ("1996 Data Release").
104. 1988 Toxics Release Inventory Public Data Release, Office of Pollution Prevention
and Toxics, March 1989.
105. See supra note and accompanying text.
106. 1996 Public Data Release, supra note 43, at
107. 1996 Public Data Release, supra note 43, at 24-25.
108. 42U.S.C. §11023(j).
109. For TRI information and analysis, visit EPA's web site, the Envirofacts Warehouse,
located at .
110. Id.
111. The annual data release is available in the full printed format, free of charge at:
(800) 424-9346. An abbreviated form of the data release, "State Fact Sheets," are
available free of charge as well at: (800) 424-9346. There is a CD-Rom version of
the TRI data which is searchable by customized query, however this item is free
only to libraries, educators, students, non-profits, and community groups. Call
(800) 490-9198 to obtain a copy of the CD-Rom. There are many other
publications available, including the "TRI Information Kit," which is also free and
available at: (800) 490-9198.
112. See .
113. See .
114. The EPCRA Hotline may be reached at: 1-800-424-9346. TRI guidance documents
may be requested through the EPCRA Hotline, or on the Internet at: .
115. See [FIRST CASEBBLACK BOOK].
116. It is probably much simpler to understand the requirements of an environmental
regulation through a guidance document than through reading a judicial or
administrative decision adjudicating liability. However, litigation is also important to
deter voluntary ignorance of the requirements.
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108 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
117. 42 U.S.C. § 11045(c)(1); see a/so supra note 23 (regarding upward penalty
adjustments to account for inflation).
118. 42 U.S.C. §13106(c).
119. See, e.g., Colonial Processing. Inc.. II EPCRA-89-0114, Initial Decision (Frazier,
June 24,1991) (early case imposing penalty for late report). Note that EPA
characterizes non-reporters as late reporters. See generally CBI Services. Inc..
EPCRA-05-1990, Order Granting Motion for Accelerated Decision (Greene, Apr.
30, 1991).
120. See supra part 3.2.1.
121. See infra note 133 and accompanying text.
122. Office of Compliance Monitoring, Environmental Protection Agency, Enforcement
Response Policy for Section 313 of the Emergency Planning and Community
Right-to-Know Act Also known as Title III of the Superfund Amendments and
Reauthorization Act (SARA), December 2, 1988.(hereinafter "1988 ERP").
123. Note that because the ERP has not been subjected to notice and comment
rulemaking, it is not binding upon regulated entities in and of itself. Instead, the
ERP is a tool through which the statutory criteria for penalty assessment is
applied. Thus, EPA attorneys must independently explain why the ERP yields a
fair penalty under the Statute during administrative hearings. See Colonial
Processing, Inc. II EPCRA-89-0114, Initial Decision (Frazier, June 24, 1991).
While EPA's administrative law judges (ALJ) must consider the ERP when
adjudicating a final penalty, they may deviate from it if they provide an explanation.
40 C.F.R. § 22.27(b). See a/so Genicom Corp.. EPCRA Appeal No. 92-2, Final
Decision (Dec. 15, 1992).
124. EPA maintains an internal delegations manual which lawfully delegates the
authority granted the Administrator by Congress to issue civil enforcement actions
to certain headquarters and regional management.
125. Violations of EPCRA § 313 range from failing to timely file the Form R or A and
data quality errors, to failure to maintain records, failure to supply notification, and
failure to respond to Agency requests for minor corrections. Office of Compliance
Monitoring, Environmental Protection Agency, Enforcement Response Policy for
Section 313 of the Emergency Planning and Community Right-to-Know Act (1986)
and Section 6607 of the Pollution Prevention Act (1990), 11-12, August 10, 1992
(1992 ERP).
126. Enforcement actions available under the ERP consist of the following: no action for
certain revisions to Form R submissions; Notices of Noncompliance (NON) for
certain circumstances causing minor errors in the Form R; civil administrative
complaints for failing to report in a timely manner, certain data quality errors, failure
to respond to a NON, repeated violations, failure to supply notification, and failure
to keep records; civil judicial referrals to the Department of Justice for exceptional
circumstances; and criminal sanctions under authority under authority of 18 U.S.C.
§ 1001. 1992 ERP supra note 106, at 2-7.
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WALKER, MICHAEL J. AND MARVIN, THOMAS C, 109
127. Penalties are assessed by first identifying the gravity based penalty using the
ERP's penalty matrix, which considers the size of the business and the amount of
chemical involved. The gravity based penalty is then adjusted based on certain
"adjustment factors" discussed in the ERP. 1992 ERP supra note 106, at 7-8.
128. EPCRA Sections 11045-11046.
129. EPCRA Section 11046(a)(1).
130. 1992 ERP supra note 106.
131. To examine recent administrative decisions, visit the Office of the Administrative
Law Judge, or the Environmental Appeals Board on the World Wide Web at the
following addresses, respectively: .
132. See supra part 3.2.1.
133. See infra part 3.3.2.
134. Note that Enforcement Response Policy revisions would be less likely if the
Enforcement Response Policy was subjected to notice and comment rule-making
and codified as a regulation. While codifying the Enforcement Response Policy
would likely result in consistent application by administrative law judges, it would
also result in a more static enforcement program due to resource intensive nature
of rule-makings.
135. Jon D. Jacobs and Michael J. Walker, Introducing the Environmental Data Police
in the Decade of Data and Data Quality 4 Envtl L. & Practice 47 (July/Aug. 1996).
136. For example, by comparing pesticide production reports required by Federal
insecticide, Fungicide and Rodenticide Act § 7 to the list of TRI chemicals, EPA
can ascertain whether a regulated entity meets one of the TRI reporting criteria
manufacturing over 25,000 pounds of a listed toxic chemical. Similar information
pertaining to the TRI reporting criteria are available from many internally cross-
referenced databases. See generally 7 U.S.C. §136(e); 40 C.F.R. § 167 85- 40
C.F.R. 372.65. ' '
137. Cite either old MOA, initial cases, or budget.
138. Cite old MOA mandating % of DQ inspections ensure this is public info!! Support
for DQ: see supra, or cite to 313(g)(h).
139. See 1996 Public Data Release supra note 84, at Appendix B.
140. See supra part 3.2.2.
141. For more information, visit the NETI web-site at: http://www.epa.gov/oeca/neit/
netimain.html.
142. See supra part 3.3.1.
143. 42 U.S.C. § 11045(c)(4); supra note 107 and accompanying text.
144. Id.
145. See supra note 107.
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110 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
146. This is mandated by the Delegations Manual. (Internal Document).
147. See generally Pease and Curren. Inc.. EPCRA 1-91-1008, Initial Decision (Frazier,
Mar. 13, 1991) (arbitrary and unreasonable for EPA to assess a penalty based
solely on failure to file a Form R for a regulated toxic chemical prior to an EPA
inspection).
148. See supra part 2.
149. See supra part 3.2.3 and infra note 132 for pre-enforcement deterrence
mechanisms.
150. A common method EPA uses to publicize noteworthy administrative decisions is
through the "Enforcement Alert Bulletin." Enforcement Alert Bulletins are directly
mailed to the regulated community, and also available on the Internet at: http://
www.epa.gov/oeca/ore/enfalert.
151. See supra part 3.3.1. The ERP provides that any deviation by the regional CDO or
attorney must be approved by EPA headquarters. 1992 ERP supra note 106, at 20.
152. Incentives for Self-Policing: Discovery, Disclosure, Correction and revention of
Violations, 60 Fed. Reg. 66,706 (Dec. 22, 1995), available at http://www.epa.gov/
oeca/auditpol.html.
153. See the Audit Policy Newsletter at: http://www.epa/gov/oeca/auditpol.html.
154. See, for example, A Settlement Policy on Supplemental Environmental Projects,
Office of Enforcement and Compliance Assurance; Revised, March 5, 1998.
155. OFFICE OF THE CHIEF FINANCIAL OFFICER, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, STRATEGIC PLAN, 17, 50-52 (Sept. 1997).
156. See U.S. ENVIRONMENTAL PROTECTION AGENCY, BUDGET (1998).
157. For fiscal year 1999, Congress directed a 10 million dollar budget cut to EPA
enforcement.
158. In 1990 an EPA study conducted under contract estimated EPCRA § 313
compliance to be about 80%.
159. See supra part 3.2.1.
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 111
Annex 1 Form R -Toxic Chemical Release Inventory Reporting Form
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Agency 8 90 known as Tltle J!l °S ihe Sup-erfund Amendmenss and Reauthorfzation Act
WHERE TO SEND COMPLETED FORMS. 1 EPJ
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SECTION 1. REPORTING YEAR
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112
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
P3S* 2 of!
EPA FORM R
PART II. CHEMICAL-SPECIFIC INFORMATION
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 113
fagniofS
EPA FORM R
'ART II. CHEMICAL - SPECIFIC INFORMATION (CONTINUED)
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114 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Pago 4 of 3
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WALKER, MICHAEL J. AND MARVIN, THOMAS C. 115
EPA FORM R
PART II, CHEMICAL-SPECIFIC INFORMATION {CONTINUED)
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116 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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MIKO, LADISLAV, CI'ZKOVA, HELENA AND KRUZIKOVA, EVA 117
ENVIRONMENTAL ENFORCEMENT IN THE CZECH REPUBLIC" THE EU
PRE-ACCESSION PHASE
MIKO, LADISLAV,1 CiZKOVA.HELENA2 AND KRUZIKOVA, EVA3
1 Deputy Director, Czech Environmental Inspection
2 International Programs Manager, Ministry of the Environment
3 Director, Institute for Environmental Policy
Na Brehu 267,190 00 Prague 9, Czech Republic
SUMMARY
Environmental enforcement problems are always difficult, but their importance
becomes much greater in the European Union (EU) candidate countries. Based on a
description of their historical background and development (including the legal and institutional
framework of environmental protection and environmental enforcement), the most significant
environmental enforcement problems in the Czech Republic are defined also with respect
to the EU accession. The current approach to solving these problems is highlighted with
emphasis given to legislative activities and to institutional and human resources capacitv
building. *
1 INTRODUCTION
In 1995, the European Agreement was signed and the Czech Republic (as well as
other 9 countries from the Central and Eastern European Countries and Cyprus) started its
long-term preparation process for the European Union (EU) membership. The basic
conditions for joining the EU were clearly defined by the European Commission (EC):
the national legislation must be fully harmonized with the EU laws (acquis
communautaire);
the institutional and procedural settings should be adjusted to implement and
enforce the harmonized legislation efficiently;
the general public is supposed to be aware of all these changes.
In the Czech Republic (similarly as in the other EU candidate countries) the
preparatory work was started by evaluating the national legislative system with respect to
EU acquis communautaire (EU AC). The process resulted to identification of gaps and to
decisions on steps which must be taken to meet the EU requirements. It is obvious that the
environmental part of this exercise are among the most difficult ones. Despite many pieces
of legislation which have been already updated or replaced by new acts compatible with the
EU AC, there is still much to do. But writing and adopting a legal act is only the beginning
of the more complicated phase tied with enforcement of this legislation. All the involved
institutions and procedures must be revised and - if necessary - rebuilt and strengthened
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118 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
to reach the desirable effect in practice. The paper is trying to identify (based on their
historical background) the main problems dealing with environmental enforcement problems
in the Czech Republic and propose some perspectives on how they should/could be solved.
2 DEVELOPMENT OF LEEGAL AND INSTITUTIONAL FRAMEWORK OF
ENVIRONMENTALENFORCEMENTIN THE CZECH REPUBLIC
The ground-stones of the present environmental legislation in the Czech Republic
were implemented at the beginning of the nineties, within the former Czech and Slovak Federal
Republic (Czechoslovakia). The main, framework law-Act No. 17/1991, on the Environment
- adopted in 1991, fixed the basic principles and rules for environmental protection. Within
the period 1990-1992, all the main environmental legislation was adopted, as described jn
Mezricky (1994). However, the traditional sectoral approach was again preserved. During the
same period, Czechoslovakia became a party to several important international agreements
(as e.g. Basel or Washington Conventions).
In January 1,1993, Czechoslovakia was split into two independent states: the Czech
Republic and the Slovak Republic. The new Czech Republic adopted the entire set of
environmental laws of the predecessor. Management and also enforcement of environmental
law is thus partly depending on several more or less independent acts (e.g. Clean Air Act
No. 309/1991, the Act No. 238/1991 - now replaced by the new Act 125/1997 - on Waste
Management, the Act No. 114/1992, on Nature and Landscape Protection etc.). On the other
hand, some horizontal legislation also exists. The most important are the Act No. 244/1992,
on Environmental Impact Assessment, the Act No. 388/1991, on State Environmental Fund
and the completely new Act No. 123/1998, on Public Access to Environmental Information.
Enforcement of environmental law was (and still is) traditionally distributed among
several institutions. The position of the main enforcement body at the subregional level is
taken by Environmental Departments within the District Offices (72 in the area of Czech
Republic). Some of the enforcement competences are also given to municipalities. The
supervision (compliance monitoring) is generally performed by the Ministry of the Environment.
However, some specific enforcement organization was also needed. In 1991, the new Czech
Environmental Inspectorate (CEI) was created by the Act No. 282/1991, as a nationwide
specialized enforcement body. In the time when the independent Czech Republic was
created, the Czech Environmental Inspectorate consisted of five more-less independent
divisions (air pollution control, water pollution control, waste management, nature and
landscape protection and forest protection), managed by one Directorate, but each headed
by one Chief Inspector.
During the year 1993, important organizational changes occurred within the Czech
Environmental Inspectorate. To ensure a more integrated approach to inspections and closer
contact with industry and areas of interests, the regional principle of administration was
adopted. 9 regional offices of Czech Environmental Inspectorate (called Regional
Inspectorates) were formed; another one was added later. Each of the Regional Inspectorates
consists of 5 specialized departments (the same as the former divisions mentioned above)
and headed by one regional Chief Inspector. The structure of Czech Environmental
Inspectorate headquarters was also changed to 5 departments; their role changed from direct
control and commanding more to providing methodical guidelines and coordination. The
national range of inspection was preserved, so that any inspector from Czech Environmental
Inspectorate may proceed with inspections in the entire area of the Czech Republic. This
practice enables us to use broadly and more efficiently the expertise and experience of
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MIKO, LADISLAV, CI'ZKOVA, HELENA AND KRUZIKOVA, EVA 119
individual inspectors, if necessary. This essential change was initial and a very important
step towards a more integrated approach in control of environmental compliance. However,
due to sectoral legislation, the majority of control activities are still one-sector oriented. From
another point of view, the current structure of CEI (namely the Regional Inspectorates) may
now be considered as a valuable advantage in implementation of new environmental
legislation during the EU-approximation process, in respect to EU directives on Integrated
Pollution Prevention and Control (96/61 EC, the IPPC Directive).
3 PRESENT MAIN PROBLEMS IN ENVIRONMENTAL ENFORCEMENT
3.1 General enforcement problems
The present state of law enforcement in the Czech Republic is significantly influenced
by the history of legislation development. At first, the system of legislation was designed
under a strong German and Austrian influence, and then (after a short period of democratic
development between the World Wars) was affected by the communist regime. Based on
these facts, some general enforcement problems, which are present not only in
environmental issues, may be observed:
Most of the Czech legislation is applied traditionally in the very rigid way, that
causes the same approach in proposing a new law automatically: legislation
is thus very detailed and cannot be used in more general way. In fact, in the
enforcement procedures the "letter of law" is more important than the "sense
of law" in enforcement. As a consequence, there is an absence of appropriate
sanctions or their low ability to be applied (their "uselessness") often occurs
in individual non-compliance cases.
The impacts and effectiveness of sanctions are often lower than might be
expected: sanctions are sometimes comparatively much lower in cases of
essential large companies, influencing the economy of a whole state or even
owned by state, in comparison with medium-sized or small installations, where
the overall economical effect is lower or negligible.
The institutional framework of executive enforcement bodies is often
underestimated. Human resources to proceed with a compliance control are
limited not only by the insufficient number of staff, but sometimes also by a
low level of experience. Coordination and cooperation with different ministries
is often an essential problem. The competences for compliance promotion are
scarce or missing, that results in the predominant application of ..command
and control" principle. This is the problem not only at the national level of the
state administration; implementation of competences at the lower level of
administration (districts, municipalities) is limited or missing, due to the
amount of other administrative work, limited human sources or missing
experience. In this situation, quantitative as well as qualitative capacities of
enforcement are insufficient, resulting in procedural and formal mistakes and
failures. As a consequence, the effectiveness of enforcement is low, and real
impact of sanctions on non-complying facilities (organizations) is often soft
or absent.
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120 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Public participation in the enforcement process is low or completely 'missing.
The passive approach to law compliance is very common, as well as high level
of tolerance for non-compliance.
3.2 Environmental enforcement problems from the ED accession point of view
It is very difficult and even impossible to separate the problems of the environmental
enforcement problems linked with the EU accession from the general ones described above.
Lack of institutional and human resources capacities, insufficient financing, complex and
not always effective and transparent procedures of enforcement and missing legislative
frameworks for promotion of environmental compliance are making problems also from the
EU accession point of view. Nevertheless, the needs to solve the same problems with the
perspective to meet strong EC requirements as the necessary condition for being accepted
as an EU member state in the relatively near future, provides both a great challenge and
stimulation to correct the problem.
Even during the pre-accession phase, the EC is paying an enormous attention not
only to the process of harmonizing the "language" of appropriate legislation, but also (and
even more) to providing sound evidence that the harmonized legislation will be enforced
effectively. From the detailed view of the EC, the current problems in environmental
enforcement are more visible. Specifically, adopting and implementing some complex and/
or horizontal directives (like the IPPC Directive, the new Water Framework Directive which
in under preparation now) requires intensive work in adjusting enforcement mechanisms in
a short, time. Our first experience with this kind of exercise have already been gained from
implementing the completely new pieces of legislation (i.e. the Act No. 157/1998, on
Chemicals and Chemical Substances, the Act. No. 123/1998, on Public Access to
Environmental Information) which are fully compatible with the EU environmental acquis.
4 PERSPECTIVES FOR STRENGTHENING THE ENVIRONMENTAL
ENFORCEMENT
Improvement of environmental enforcement in the Czech Republic in general and
ensuring the effective enforcement of the EU environmental legislation cannot be considered
separately as they are "two sides of one problem." The EU member states are obliged to
enforce the EC environmental legislation in the same way and using the same instruments
and methods which they apply in enforcing their own national environmental requirements.
Therefore measures taken to strengthen the environmental enforcement in the Czech
Republic should be designed to meet the needs for enforcement of the Czech laws, strong
enough to enforce the EU legislation incorporated into the national legislative system.
The measures which inevitably follow the above mentioned gaps and inconsistencies
of the Czech enforcement system, could be distinguished into three categories:
improvement of legislative procedures and environmental legislation;
establishment of more effective institutional frameworks and procedures for th<
enforcement;
changes of competencies of the competent authorities.
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MIKO, LADISLAV, CI'ZKOVA, HELENA AND KRUZIKOVA, EVA 121
4.1 Legislative measures
The expected improvement must be achieved not only by preparing new acts or by
updating the current laws to be compatible with the EU environmental acquis but also bv
strengthening all legislative procedures. This is necessary:
to make the legislative procedures less political and more professional
concentrated on substantial problems;
to open procedures of making comments on bills for the general public for
academic/university and independent experts;
even in early stage of drafting new pieces of environmental legislation, to take
into account more extensively practical experience and knowledge of
environmental inspectors, academic/university and independent experts;
to specify environmental requirements which are enforceable, concrete and
exact - the environmental obligations must be permanently and consistently
linked with proposed sanctions (penalties etc.);
to specify monitoring obligations in sectoral legislation;
during drafting a new environmental law, to assess all the requirements for
effective enforcement (institutional capacities, procedures, technical and
information support including equipment, human capacities and financial
needs) and ensure that they are in place before the law is in power;
to review, propose arid adopt clear and effective administrative rules and
institutional framework for permitting procedures;
more efficiently and a greater extent to involve the general public into the
environmental decision-making;
to introduce legal standing for representatives of the general public in
environmental matters.
4.2 Institution building and strengthening of capacities
Possibilities to improve environmental compliance and enforcement depend very
much on the current, real state of enforcement institutions, on their capacities and
competences and, consequently, on their effectiveness. Quantitative growth of enforcement
bodies does not solve the problem, structural and qualitative changes are evidently much
more efficient. The process must be started by detailed and quite comprehensive
assessment of present enforcement capacity, by identification of needs and gaps This
process has been already launched in the Czech Republic, supported by EC and several
EU member countries.
Based on the first results of (his assessment and the new legislation proposed the
of our'kncM effectiveness of enforcement institutions can be enhanced (in a present stage
changing the current state administrative system and the position of state
employees working in enforcement institutions to strengthen their respect;
establishing and introducing enforcement as a comprehensive approach used
regularly as the systematic tool wherever and whenever the environmental
requirements are to be met (programs of enforcement - system of targeting,
priority setting, compliance promotion, inspections);
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122 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
applying the compliance promotion approach by enhancing and implementing
new competences of enforcement institutions;
changing the quantitative proportion between administrative and executive staff
in environment enforcement, to strengthen enforcement capacities without
essential enlargement of the state administration;
changing the structure of enforcement organizations, to enable a more
integrated approach in enforcement and to improve cooperation among
different enforcement bodies;
specifying clearly monitoring obligations (with respect to the duties of the state
administration and the polluters) and setting efficient systems of reporting and
data documentation;
creating interdisciplinary (cross-sectoral) links between the enforcement
bodies to avoid duplication of activities and to use existing expertise and
experience more efficiently;
strengthening considerably the system of training and education of
enforcement officers;
building new international links, especially with the neighboring countries to
enhance effectiveness of environmental enforcement in transboundary issues;
cooperating more closely with polluters, responsible owners of polluting
facilities to increase the awareness of enforcement institutions on the internal
problems of installations, which will support the voluntary approach in
compliance;.
enhancing involvement of the general public in the enforcement process and
raising public awareness on environmental problems (including education
aimed at the "right-to-know" in environmental matters).
4.3 Clarification of competences
Based on experience gained from daily practice, unclear and/or inappropriate setting
of competence is one of the main obstacles to achieve effective cooperation necessary for
efficient enforcement. To improve the current situation in the Czech Republic, it is necessary
to:
establish the regional level of the state administration with clearly defined
responsibilities;
clarify the relationship between the Czech Environmental Inspectorate and
District Offices in environmental matters;
review, assess and redistribute responsibilities and competences of state
officials in enforcement authorities.
5 CONCLUSION
Evaluating more than eight years of experience in environmental protection under
the conditions of continuing democratic changes and economic transition, it is obvious that
actions taken in the Czech Republic were correct in principal. But the first steps of setting
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MIKO, LADISLAV, CI'ZKOVA, HELENA AND KRUZIKOVA, EVA 123
democratic state administration in environmental protection, and a foundation of new systems
of environmental legislation are not enough without the strong and effective enforcement Just
after the revolution changes, the generally declared demand for "better and healthy
environment" followed by expressions of a "willingness to do something for that" was leading
to some kind of underestimation of what it would require to achieve. Under the economic
pressures which resulted from the complex and difficult reconstruction and privatization of
the economy and which were followed by changing priorities of socially accepted values
failures and gaps in enforcement became visible. The EU accession process is now a great
stimulus to strengthen the environmental enforcement starting from the phase of drafting
legislation. This situation seems to be also a unique challenge forchanging the traditional
command and control" approach to more a proactive one, opening the opportunity for
promoting environmental compliance and for active involvement of the general public
REFERENCES
Mezricky, V.: Environmental Inspection in Transition in the Czech Republic In'
Proceedings of the 3rd International Conference of Environmental Enforcement 25 - 28 April
1994, Oaxaca, Mexico, pp 79-82
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124 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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DAMDIN, TSERENDASH AND BOLORMAA, BATSUKH 125
ENFORCEMENT OF ENVIRONMENTAL LAWS IN MONGOLIA
DAMDIN, TSERENDASH1 AND BOLORMAA, BATSUKH2
'State General Environmental Inspector, Deputy Director, Environmental Protection
Agency
2Officer Department of International Cooperation Ministry for Nature and Environment
Mongolia
Environmental Protection Agency, Ministry of Nature and the Environment, Government
Building No. 3., Bagatoruu-49, Ulaanbaatat, Mongolia 11
SUMMARY
In Mongolia, there have been adopted more than 20 different laws on environmental
protection, living in secure, healthy environment, guaranteeing life of future generations as
follow-up to the (UNCE) United Nations Conference on Environment and Development of Rio's
Conference.
Mongolia has signed and ratified globally important documents in the field of the
environment including the "Convention on Biological Diversity" (1993) the "Convention to
Combat Desertification" (1996), the "Vienna Convention for the Protection of the Ozone Layer"
(1996), the "Montreal Protocol on the Substances that deplete the Ozone Layer" (1996) the
"Basel Convention on the Control of Transboundary Movements of Hazardous Wastes'and
their Disposal" (1997), and the "Convention on Wetlands of International Importance especially
as Waterfowl Habitat" (1998), and is preparing to ratify the "Convention on Migratory Species
of Wild Animals".
At the same time, the Mongolian government has been intensively developing bi-
lateral cooperation on environmental protection with the governments of the People's
Republic of Kirgyzstan since 1993, with the Russian Federation since 1994, as well as, with
many other countries. Currently, measures are being taken to improve the ideas of Mongolian
Legislation and the conditions of international bilateral agreements.
1 STATE OF ENVIRONMENT IN MONGOLIA
Mongolia has a territory of 1. 564 118 square kilometers, a current estimated
population of 2.49 million people and it is located in Central Asia. Mongolia is a landlocked
country, which borders with Russia and China, and occupies an ecological transition zone
where the Siberian taiga forest, Central Asian steppe, Altai Mountains and Gobi desert meet
The Mongolian Environment has a large variety of features. The northern part of the •
country is covered by forest mountain ranges dominated by Siberian Larch Larix sibirica
Siberian Pine Pinus sibirica and Scotch Pine Pinus sylvestris. The southern part
encompasses desert, desert-steppe and steppe areas with low mountains, rolling hills
hillocks with a sparse vegetation cover. The eastern part consists of an area of vast plains
and wild heaths. About81 per cent of Mongolian territory are situated higher than 1000 meters
above sea level and the average elevation of the country is 1580 meters above sea level (the
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126 DAMDIN, TSERENDASH AND BATSUKH, BOLORMAA
lowest and highest points being at 532 meters and 4374 meters respectively). One third of
Mongolian territory consists of desert and desert steppe zones. These examples show that
the Mongolian landscape is one of great variety and contrast.
Mongolia can be divided into 6 natural belts and zones: Alpine, Mountain taiga, and
Mountain Forest Steppe belts; the Arid Steppe, Desert-Steppe and Desert zones. These belts
and zones differ from each other on the basis of their soil quality and plant and animal
species, which in turn are adapted to different habitats and climatic conditions characteristic
to each of these belts or zones.
Mongolia has a unique biodiversity of flora and fauna. Today many of these areas
provide habitat for representative and often-rare examples of the wild plants and animals of
central and northern Asia. Wildlife species that have largely disappeared from the rest of
continent remain here, sometimes relatively abundant. 10% of the whole territory is forest.
According to studies Mongolia has 665 species of fauna and 5775 species of flora.
Mongolian game hunting resources consist of 56 species of mammals, 132 species of birds
and 35 species of fish.
Mongolia has many useful plants such as 845 species of medical use, 173 species
for human nutrition, 64 species of industrial use, 849 species of ornamental plants, as well.
2 NATIONAL LEGISLATION ON BIODIVERSITY CONSERVATION
The 1991 Constitution establishes the right of Mongolian citizens to live in a safe
and healthy environment and states that all land and natural resources of Mongolia are subject
to state protection. The adoption of environmental laws in conformity with the constitution
created a legal basis for the protection of species.
The basic guidelines for the protection of the environment and its natural resources
are clearly formulated in such directives as the "Mongolian National Security Policy
Orientation" of 1995, the "National Development Strategy" of 1996 and the "Ecological Policy
Orientation of Mongolian State" of 1997. The ideas of these documents are expressed in
detail in the corpus of environmental laws, the national program on the preservation of
biodiversity, the program to combat desertification and the program on protected areas and
forest conservation, restoration and proper use. The implementation of such programs is
in progress. At the same time, environmental protection has become an important item in
the "Action Plan of the Mongolian Government", and in the annual guidelines of country's
socio-economic development. Accordingly, all the administrative units plan their work at the
ground level, focusing on wider involvement from the population.
The regular Spring Session of the State Great Hural (Parliament) hears and
discusses the Report on the Current Status of the Environment, which plays an important
role in the protection of biodiversity in Mongolia. In our work, we are also paying attention
to all possible alternatives to develop multilateral and bilateral relations in the field of biological
resource conservation, exchange of experiences and acquisition of new knowledge and
technical know-how. All these activities are intrinsically linked with activities carried out o
implement the provisions of the Convention on Biodiversity, Ramsar Convention, World
Heritage Convention and CITES and Mongolia's commitments to the world community.
In past years state and governmental organizations have concentrated their efforts
on the establishment of a legal foundation consistent with the environment protection
objectives of the country. For example, in 1995 and 1996, the "Law on Natural Plants", "Law
on Plant Protection", "Law on Hunting", "Law on Fees for the Harvest of Forest Timber and
Fuelwood", "Law on Natural Plant Use Fees", and "Law on Hunting Reserve Use Payments,
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DAMDIN, TSERENDASH AND BOLORMAA, BATSUKH 127
and on Hunting and Trapping Authorization Fees" have been passed and came into effect
under the State Great Hural. In addition, over 30 Regulations and Resolutions have been
endorsed to support those laws such as the "Rules for Forest Management", "Rules for
Estimation of Damage caused by Forest and Steppe Fire", "Procedures for collection
stocking and selling Forest Seeds", "Rules of Forest Seed Laboratory", "Procedures for
Afforestation, Planning and Funding of Forestry", "Instructions on Timber Felling-
Methodology to Define the Extent of Fire Damage", "Procedures to Transfer Planted Trees'
to the State Forest Fund and to Mobilize Manpower" and "Transportation to Combat Fire"
Also, some 20 rules and instructions were formulated on the conservation of wild animals
and plants.
The protection of natural resources and their proper use fall under the "Law on
Environmental Protection", "Law on Water", "Law on Land", "Law on Protected Areas" "Law
on Protection from Toxic Chemicals", "Law on Air", "Law on Ground Mineral Resources" which
shall be perfected and improved in the years to come. New amendments have been' made
to the Law on Protected Areas" and draft revisions have been prepared with regard to some
other Laws. New Laws on fauna and pastures are currently under formulation. The new "Law
on Assessment of Impacts on the Environment" enforced in 1998 and is making important
contributions to the improvement of environmental conditions in this country
According to Mongolian Laws, all biological resources must be re-examined and
determined periodically. For instance, forest resources shall be surveyed every ten years-
animal and plant resources shall be surveyed annually. As of today, resources of about 100
plant species that exist in this country have been identified and preparations to define the
animal resources are now underway. Ecological and economic assessments of forests and
some animals have been conducted. Based on Mongolian law, animal and plant species are
classified as threatened, endangered and abundant As a result, 18 animal species and 133
plant species are under protection and they can be used only for the purpose of scientific
research. There are some 18 animal species and 234 plant species considered to be limited
resources and measures shall be taken to restore their populations.
Before the harvesting or culling of any species, all individuals, economic entities or
organizations should have carried out an environmental impact assessment and have plans
to restore these species at their own expense; those restored species can be registered as
he private property of the individuals, economic entities or organizations which have restored
them. Also, they shall enjoy the right to domesticate wild species if they have the intention
of breeding or growing them, and their activities will not have a negative impact on the
environment. Any individuals, economic entities or organizations who trap animal species
for the purpose of re-introduction, eliminating populations from disease core areas or for
research, shall be exempted from fees. The government uses these fees for breeding of
animals and growing plant species. According to law, 70 per cent of fees accumulated from
the use of forests should be used for afforestation.
Those who violate Laws and Regulations can be heavily fined in accordance with
the relevant provisions of the legislation. So, there is consistent effort in developing the
economic mechanisms in Mongolian environmental protection.
In Mongolia there is an urgent need to make large scale investments with regard to
the protection of biological resources from which we all gain the benefit of transferring the
living legacy of nature to our children. Several institutions have been established but more
needs to be to done to:
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128 DAMDIN, TSERENDASH AND BATSUKH, BOLORMAA
Organize activities on the enforcement of environmental legislation, stop
violations of the legislation and compensate for damage resulting from
violations.
Coordinate work related to environmental impact assessments for new
industrial and service projects.
Monitor air, water and soil pollution and carry out activities to decrease
pollution.
• Provide work instructions to and assess work of state senior environmental
inspectors, state inspectors and rangers.
Create positive working conditions for those who work in environment
inspection.
Assess environmental degradation and control activities on environmental
restoration.
Control implementation of environmental laws at the local level; stop violations
of laws and provide local communities with information.
3 STRUCTURE OF ENVIRONMENTAL CONTROL
To achieve this, the institution of a State General Environmental Inspector has been
established with the following structure:
• State General Environmental Inspector.
State Senior Environmental Inspectors of Environmental Protection Agency
- 8 persons.
State Senior Environmental Inspectors of The Professional Inspection
Agencies under airnag (administrative unit-province, there are 22 aimags in
Mongolia) and city Governors - 22 persons.
State Environmental Inspectors of The Professional Inspection Agencies under
aimag. And city Governors - 48 persons.
State Environmental Inspectors of Soums (administrative unit smaller, there
are 400 soums in Mongolia) and Strictly Protected Areas - 374 persons
Rangers -508 persons.
Environment volunteer -122 persons.
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HEHNANDEZVlRVIESCAS, MARCOTULIO 129
THE GENERAL ENVIRONMENTAL LAW OF THE REPUBLIC OF PANAMA
HERNANDEZ VIRVIESCAS, MARCO TULIO
Hernandez, Virviescas and Associates, Via Espana and 45 Street, Es, First Stop,
Panama, Panama
SUMMARY
Law No. 1 of July 1, 1998 established the General Environmental Law for the
Republic of Panama. It was published in the official Gazette No.23578 of July 3,1998. This
paper describes the content and development of this law.
1 INTRODUCTION
The General Environmental Law was designed as a modern judicial instrument that
includes the principles approved in the XV Ordinary Meeting of the Central American
countries, held in Guasimo, Limon, Republic of Costa Rica, August 20,1994. In this meeting
the Presidents of the Central American countries adopted an Alliance for Sustainable
Development as an overall initiative of the political, social and ecological contexts, with the
purpose of developing coherent and integrated actions, with the participation of the
community, to accomplish the strategy approved by the leaders of the Central American
Region.
2 BASIC PRINCIPLES
The ideological content'of the General Law of the Environment of the Republic of
Panama is in harmony with international covenants and the basic objectives of sustainable
development. It clearly states the responsibilities of the private sector to adopt "clean
technologies" based on the new world open market concept, the natural environment and
the community in general.
This new law builds on universally accepted rules and environmental principles as
a means to access international markets, attract foreign investment, foster scientific
investigation, the joint implementation and economic instruments for development in the
carbon sequestration market.
The Law includes in Title I, the objectives and basic definitions in the technical
language included in the international covenants, and environmental laws in the Republic of
Panama. Title III establishes the relationship with the National Environment Policy.
Specifically, Article 3 states: "The National Environment Policy constitutes the group of
measures, strategies and actions established by the State, which orients, conditions and
determines the behavior of the private and public sector, of the economic agents and the public
or population in general, in the conservation, use, management and harvesting of the natural
resources and the environment."
The executive agency, with the advice of the National Council of the Environment
approves, promotes and oversees national environmental policy, as part of the public policies
for the economic and industrial development of the country.
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130 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The Third (111) Title created the National Environmental Authority, administrative
structures and activities. This autonomous institution has among others, the obligation to
develop and sustain actions necessary to obtain results based on the integrated triangle of
sustainable development with its economic, social and environmental components. It is an
authority created to assess environmental problems created by each phase of human activity
advancing social and economic interests.
Law No. 41 is a judicial instrument that is easy to understand. It is non repressive
and focuses on prevention as a principal goal as well as the integration of science and law.
The judicial regime provides an extensive period of eight (8) years to provide for
integrated implementation. This relatively long period permits the formulation of specific plans
that integrate environmental concerns within the operations of companies. They have the
time to include development of environmental concepts and achievement of government
standards in their operations. Based on the fact that these companies were not subjected
to environmental impact assessment requirements stated in Law No. 30 of December 30,
1994, this law is incorporated in the General Environment Law. The General Environmental
Law requires all companies within a period of three (3) years to undergo environmental audits
that the National Environmental Authority previously proposed and approved.
3 NATIONAL ENVIRONMENT STRATEGY
The National Environmental Authority is in the process of formulating its National
Environment Strategy. This strategy will harmonize various economic, social and
environmental plans and policies. The experience gained through existing planning exercises
will be fully used and incorporated into a country driven environmental strategy. Its goals will
be to ensure socially responsible economic development while protecting the resource base
and the environment for the benefit of future generations. This strategy is developed through
the widest possible participation and based on thorough assessment of the current situation
and initiatives.
4 ROLE OFTHE NATIONAL ENVIRONMENTAL COUNCIL
The National Environmental Policy from the point of view of the Law No. 41 states
that it will be oriented by a National Environmental Council. This Council is composed of three
(3) State Ministries that have five (5) specific functions that are in harmony with the
Constitution Ecological Regime (Title III) that pertains to the Fundamental Guarantees
consecrated in the Political Constitution of 1972, that expresses the ideological parameters
for the environment activities in Panama.
5 INTERGOVERNMENT COLLABORATION FOR ENVIRONMENTAL IMPACT
ASSESSMENT
This law not only contains scientific and technical issues, but also provides a
process to improve decision-making processes so that consideration of socio-economic and
environmental issues is fully integrated and a broader range of public participation assured.
The strategy delegates planning and management to the local levels of public authority
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HERNANDEZVlRVIESCAS, MARCOTULIO 1 31
consistent with effective actions. It also strengthens intersectoral committees at both the
political and technical level, including active collaboration on linkages with scientific, cultural,
religious, business, social and other institutions, using networking arrangements.
The National Environmental Authority creates a Consultive National Commission
that presents proposals to the National Environmental Council and the General Administrator.
Also the Law creates the Provincial, Municipal and Indian Reserves Consultive Commissions.
The integration and interinstitutional coordination for the analysis of environmental
assessments is a clear mandate that will be used by the group of sectorial units on the topic
of environment.
The interinstitutional integration and coordination arrangements to conduct analysis
and environmental studies is a clear responsibility that will be developed through a scheme
to unite sectorial with environmental competence.
The modem focus and theory that Citizens have the right to participate actively in
. the application of the environmental Law is provided in the law, and for this it uses the
mechanism of diffuse rights: Diffuse rights are the rights disseminated in the collective (It
corresponds to each of its members, it does not originate in legal titles, actions or other legal
ordinance). It enables all citizens to plea judicial, civil, administration actions in favor of the
natural media.
Title N°IV of the instruments of Environmental Actions, includes, among others land
use planning with the purpose of using the land based on its ecological values. The Law also
states the obligation to develop Environmental Impact Assessments. Article 23 establishes:
"any activity or project, that by their nature, characteristics, effects, location or resources
could generate environmental risk, require an environmental impact assessment previously
to the start or beginning of the activity or projects." This aspect is of great importance, it is
the formula needed to avoid the environmental deterioration and obtain mitigation actions as
required.
The environmental quality rules result from environmental procedures that state the
limits of the human activity and the Law establishes fixed periods of time, eight (8) years
from the publication of the Law, for the companies to adopt or introduce clean technologies
that minimize contamination, so that economic efficiency is achieved to guarantee the quality
of life in benefit to the cultural plurality and life in all its manifestations.
In the context of the natural resources, it integrates technically and functionally the
experience of several years gained in the management and use of these resources, such
as water, air, forest are of extraordinary importance in the development of the Law.
The concern for biodiversity and protected areas are integrated in the National
System of Protected Areas, that include all the territory that have this category. The
functions and responsibilities are Ogiven to the Ministry of Agriculture in conformity with the
Law N°8 that created the Metropolitan Park, located in the city of Panama. The Law is a
general scheme to orient and consolidate technical-judicial concerns but also offers
emphasis on environmental education.
The Law establishes the principles of environmental responsibilities and objective
bases for defining responsibility. The Law also limits administrative interventions Violations
are sanctioned with fines up to $10 million USD.
The General Environmental Law empowers the Public Ministry as the competent
organization to conduct legal processes to prosecute the violations, destruction and
contamination. A Public Attorney with clear responsibilities is the officer in charge of receiving
pleas or complaints about environmental trangressions. The law also establishes two (2)
Circuit Courts that will receive the complaints or pleas and hand down judicial judgments.
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132 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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THEME #2: COMMUNICATIONS, PUBLIC ROLE, AND COMPLIANCE MONITORING 133
THEME #2
COMMUNICATIONS, PUBLIC ROLE, AND COMPLIANCE
MONITORING
This theme covers two important and often interrelated aspects of environmental compliance
and enforcement. To correct and prevent violations of environmental requirements one must
be able to assess compliance status and detect violations in the first instance. To deter future
violations, one must communicate effectively about requirements, why compliance with them
is important, and what consequences will befall those who do not comply. Communications
about compliance status to the public becomes a powerful means not only to foster compliance
but also to support critical program functions such as compliance monitoring.
Theme #2 Workshops:
2 A Communications and Enforcement
2 B Encouraging Public Role in Compliance Monitoring and Impact of Public
Access to Environmental Information/Community Right to Know Laws
on Compliance and Enforcement Programs
2 C Compliance Monitoring
2 D Multi-Media (Integrated) Inspections and Permitting
2 E Source Self-Compliance Monitoring Requirements
2 F Detecting Hidden Operations Outside of Legal Frameworks
1. Summary of Theme #2 Panel Discussion: Communications, Public Role and
Compliance Monitoring, Moderator: A. Adegoroye; Rapporteur: M. Fenders
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134 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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THEME #2 PANEL DISCUSSION: COMMUNICATIONS, PUBLIC ROLE AND COMPLIANCE MONITORING 135
SUMMARY OF THEME #2 PANEL DISCUSSION: COMMUNICATIONS
PUBLIC ROLE AND COMPLIANCE MONITORING
Moderator: AdegokeAdegoroye
Rapporteur: Michael Fenders
1 INTRODUCTION
This plenary session addressed three interrelated topics: the importance of
communication and enforcement, the fundamental importance of the public role in all aspects
of an environmental compliance and enforcement program and the central role of compliance
monitoring m particular, the presentations demonstrated how all three areas can be creatively
addressed to be reinforcing. The participants in the panel included government officials from
Nigeria, Indonesia, Vietnam and the United States as well as a prominent NGO
representative. U.S. EPA Assistant Administrator Steve Herman introduced the morning's
plenary with observations about the need to accurately assess compliance status and then
use that information to deter future violations.
From their various perspectives, all participants in the panel stressed the central
value of the public right to know and the need to communicate effectively about violations
and the results of cases. The fundamental importance of the public role in all aspects of an
environmental compliance and enforcement program environmental information is a means
of encouraging compliance, and more broadly, to protect the environment itself by assuring
that citizens have adequate information about threats to the environment and public health
so they may shape their nation's policies, practices, and influence corporate behavior
accordingly. They reviewed recert international developments, including mandates for
access to environmental information, and examined the benefits of implementing the right
to information by law and in reporting methods which maximize the useful information for
citizens and governments concerned with compliance and minimizing or preventing pollution
generally. Panelists detailed practical measures, information management regimes and
new technologies which assist in public awareness and the strategic analysis of information
relevant to detecting violations and promoting widespread compliance.
2 PRESENTATIONS
The first speaker, Mr. Margana Koesoemadinata of Indonesia, stressed the
importance of compliance status as public information and the use of disclosure of information
to encourage compliance. He noted that in areas that have weak laws, weak enforcement
and corruption; public disclosure may be the most effective way to promote compliance'
Mr. Koesoemadinata went on to describe the "Proper" program in Indonesia, a country
with a population of about 200 million, whereby BAPEDAL (the environmental agency) has
implemented a system for the rating of environmental performance of industries and for
publicly announcing the ratings. BAPEDAL has developed public ratings and color coding
ranging from gold to black, to denote facilities which meet or exceed environmental
standards, those which achieve minimum compliance and discharge standards and those
in the red and black categories which are out of compliance or make no efforts to comply
Since the implementation of this system, BAPEDAL reports that compliance rates have
raised 51 per cent each year.
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1 36 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Indonesia recommends that such a system be considered around the world They
have found it to be an excellent example of how public information can be a powerful tool for
enVir°nmMest tSnaCtiK0ravchenko, a professor and President of a public interest law firm
"Ecopravo-Lviv" with particular expertise in Ukraine and the newly indePe^f ^ N £/'
discussed developments stemming form the Arhus Convention in June of 1998 While this
convention, formally entitled "Convention on Access to Environmental Information, Public
Participation in Environmental Decision-Making,, and Access to Justice in Environmental
Matters", was certainly a positive development and a "victory in public interest law , Ms.
Kravchenko made it clear that it. was far more important how well this convention was
implemented in practice in order to transfer these rights into realities. , ,,, -na
Professor Kravchenko noted that after the collapse of the Sov.et Union, Ukra me
adopted laws, including a constitutional right to a safe environment, in order to overcome the
legacy of Chernobyl. Because these are relatively new laws and "public rights , however
and enforcement and the economic as well as cultural climate are lacking, crtizens do not
assert their rights enough and officials are not receptive. Accordingly, the professor argued
for more specific enforcement mechanisms.
She cited the case of a small town where 2000 children suffered from water
contamination. Coal mining was responsible for the pollution of ground water and legal action
was costly to pursue, and the citizens ultimately lost their courage and interest to f o I o w
through and did not believe in the independent court. Recently, however, there was ^ ano her
case where a Judge overruled a Minister's decision allowing a major project without an
environmental impact statement She cited this as an important precedent that cit.zens
recommended specific actions, including the following. (1)
the need for expertise to prove cases which depends upon resources; (2) make information
more widely available; (3) develop environmental legislation with strong enforcemen
mechanism's and transparency; (4) promote citizens' suits, (5) P«»"ote envTOnrnwrtal
education, especially in the sphere of the rights of citizens; and (6) spread ,nformat,on about
Genera, of Vietnam's National Environmental
Agency, reported on the first large-scale environmental inspection of enterprises in Vietnam
which took place in 1997. He described the steering committee and inspection teams
assembled In each city and how they conducted 9,384 inspections. They found that about
half of the facilities were in violation of the law; 4, 390 enterprises were fined and over one
hundred were ordered to halt their activities. It was further noted that of the fined enterprises,
This flref 'large scale inspection process raised awareness about the obligation of
all individuals and organizations to protect the environment and fulfill the mandat e . ^e Law
on Environmental Protection. This mass inspection helped in making a national j ssessmen
of the current environmental compliance situation and has helped Pol'7Jfn^ow°r^°"
feasible and appropriate measures to increase the effectiveness of the environmental
Pr0teCti°Theeh?pections also facilitated close cooperation between different branches of
government and the mass media. The investigation helped increase the role and awareness
of the environmental inspectors in society. Tens of thousands of people were introduced to
the law on Environmental Protection by working with the inspection teams.
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THEME #2 PANEL DISCUSSION: COMMUNICATIONS, PUBLIC ROLE AND COMPLIANCE MONITORING 137
The final panel presentation was by Ms.Elaine Stanley, Director of U S EPA's Office
of Compliance, who discussed the experience of the United States in using compliance
monitoring information generally and recent initiatives to enhance public access to
environmental compliance data. One category of new approaches relies on increased public
accountability through the dissemination of facility specific compliance data to inform the
local community and to enable the facility to benchmark its own performance
The Sector Facility Indexing Project (SFIP) is a leading example of such an
approach. This project provides up-to-date environmental compliance information on a facility
specific basis, accessible to the public via the Internet at www.epa.aov/oeca/sfi it currently
contains records for over 650 facilities in five industry sectors: petroleum refining- iron and
steel production; primary metal refining and smelting; pulp manufacturing; and automobile
assembly.
ln t[?e Pas{. these records, although public, were very difficult for government users
and the public to access because they were spread across many different data bases Under
this project, EPA has integrated this information so it can be reviewed in one place and can
^ !£r understand the various impacts of an entire facility. Ms. Stanley reported over
46,000 user sessions and 250,000 hits on the Internet in its first year of operation.
Other EPA initiatives provide more general environmental data to the public to help
communities discover the existence of regulated entities in their neighborhood and assist
m compliance with environmental laws. For example, in 1998, EPA Administrator Carol
Browner announced a new World Wide Web site established for the Center for Environmental
information and Statistics.-to provide a one-stop source of information about the environment
Among other information, users can access environmental profiles for each state county
and territory in the United States to get: information on air quality, drinking water and surface
water quality, and the management of hazardous waste and toxic chemicals in a county
In closing, Ms. Stanley noted that today's technological advances provide new
opportunities for public access to facility compliance and performance data. She concluded
that government agencies have the responsibility to determine the most effective way to
provide public access, but also the responsibility to ensure equal access and accurate data.
3 CONCLUSION
• M * ,7hUS'todav>s '"formation technology makes possible a whole new era for the public
ngnt to know. Environmental agencies can bring together more information and make it more
accessible to a greater number of people than ever before. If laws and international
agreements providing for such access are actually implemented and enforced, nations can
expect that enhanced access to environmental information will lead to greater compliance
with environmental laws and the prevention of pollution in the first place.
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138 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP 2A: COMMUNICATIONS AND ENFORCEMENT 139
WORKSHOP 2A
COMMUNICATIONS AND ENFORCEMENT
Participants in this workshop engaged in a role-play "game" which was first introduced at
the Fourth International Conference during which participants will work in small groups in roles
to develop a "communications strategy" for a particular compliance and enforcement problem
within realistic resource constraints. Subsequent discussions benefited from a capacity
building support document on "Communications for Enforcement" prepared for the Fourth
International Conference and papers on this subject in Conference proceedings.
3. Summary of Workshop Discussion, Facilitators: R. Bakx, C. Currie,
J. vanDijk, C. Musgrove; Rapporteurs: J. Buntsma, B. Goinga '. 141
Papers 1 - 2 for Workshop 2A and a list of related papers from other International
Workshop and Conference Proceedings are in Volume 1
See also Workshop 2B: Encouraging Public Role in Compliance Monitoring and Impact
of Public Access to Environmental Information/Community Right to Know Laws on
Compliance and Enforcement Programs.
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140 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 2A COMMUNICATIONS AND ENFORCEMENT 141
SUMMARY OF WORKSHOP: COMMUNICATIONS AND ENFORCEMENT
Facilitators: Workshop 2A: Chris Currie, Rob Bakx
Workshop 2AA: Connie Musgrove, Jaap van Dijk
Rapporteurs: Workshop 2A: BetskeGoinga
Workshop 2AA: Joost Buntsma
GOALS
The papers and the discussions were designed to cover the following issues:
The role of communications as a compliance tool, as an enforcement sanction
and as a means of enhancing program effectiveness.
Ways to identify and to understand the. different needs of a target group for
communications about enforcement, including the regulated community
enforcers, licensees or permittee, the general public, politicians.
Legal problems in using information about non-compliers in communications.
Ways to develop a strategic approach for communications and enforcement
for a group of significant non-compliers; how communication is made part of
the total enforcement process.
Attracting press interest in "positive" enforcement stories and communication
results.
Special activities enforcers can undertake to ensure effective communications-
such as press release policies and requirements, contributions to newsletters
or trade press, broadcast, other.
1 INTRODUCTION
* «, Enforcement and communications are both instruments in the environmental policy
of the national as well as the local/regional government. Enforcement is one of the most
powerful instruments to influence behavior of individuals and consequently of companies
communication is every information flow and information exchange between organizations
or persons with the objectives to promote:
environmentally friendly behavior; and
compliance by the regulated community.
«, u °ne °f the main Prablems for environmental enforcement is the imbalance between
the huge amount of companies under regulation and limited enforcement capacity Therefore
a more sophisticated approach to enforcement is needed. Through communications the
effectiveness of enforcement can be improved.
Communications makes environmental enforcement more effective by influencing
the perception by the regulated community of the enforcement action, in other words the
effectiveness of enforcement depends on the perceived 'chance to get caught'
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142 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Like enforcement, communication is an instrument of environmental policy. It is
necessary to integrate these two instruments. This leads to two basic rules:
Rule 1. No Enforcement without Communication.
Rule 2. No Communication without Enforcement.
Integration of enforcement and communications demands a strategic approach,
based on a thorough analysis of the present situation and the environmental problem at hand,
the target groups and the means of enforcement, which are available.
The following objectives of communications can be distinguished:
Attention and agenda-setting.
Knowledge and understanding.
Social basis and public awareness.
Change of behavior.
• Cooperation.
2 PAPERS
The Conference sponsors prepared a Capacity Building Support Document on
Communications Strategies for Enforcement Programs. This document builds up to a
strategic approach for communication and enforcement, supported by a number of checklists.
The Conference Proceedings (Volume 1) contained a paper by Els Rauwerda on
developments in communications with regards to enforcement of the Netherlands'
environmental legislation.
3 DISCUSSION SUMMARY
3.1 Definition of Communication
The following definition of 'communication1 was used: "Communication is every
information flow and information exchange between organizations and /or persons, with a
certain objective", e.g. environmentally friendly behavior, or compliance by the regulated
community.
3.2 Experiences
Communication is necessary not only during enforcement but also during the
licensing procedure from authorities to industries. It was felt that communication is the most
fundamental aspect of enforcement and that it can have the following functions:
education
• deterrence
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WORKSHOP SUMMARV: 2A COMMUNICATIONS AND ENFORCEMENT 143
punishment
Communication contains information. This information must be correct and
understandable. For communication to be effective, it has to be a two-way system: from the
authorities to the public or industries (depending on the target group) and the other way
around. Therefore communication, when properly used, should generate feedback from the
target of the communication. It gives a view of the effects of enforcement communication.
It should however not be forgotten that internal communication within the authorities is also
very important.
Information that is communicated should be correct, understandable and clear.
Besides communications as a tool for authorities when applying enforcement, there is a need
for clarification on the importance of communication between different levels of government
and the way lawyers and the judiciary can use communication skills.
The role of the press is very important. But they should be encouraged to give good
news and not only news on environmental disasters. It was determined that this can be
accomplished by building a professional relationship between the enforcers and the
journalists of environmental specials in newspapers, magazines, radio and TV. It was noted
that especially local newspapers are keen on environmental news. Religious leaders can
also play an important role to get public environmental awareness.
3.3 Role-play: Water Pollution Case
In a role-play the enforcement authorities had to decide how to support their
enforcement actions by means of communication within a limited budget. A great number
of oil companies which were violating environmental regulations had to be brought back into
compliance. Three target groups had to be influenced: the industry-managers, the industry-
workers and the general public. Three governmental taskforces were formed to choose which
communication activities could be used towards these three different target groups. Possible
activities were radio, TV, newspaper (regional and national), billboards, letter, visit or personal
talk, meeting or congress, brochures and video. The taskforce had to put their selected
actions, which had a specific price attached to them, on a schedule and within budget. The
aim of this exercise was to demonstrate that different forms of communication would be used
towards different target groups, even although the violations by the polluter were the same.
The outcome of the role-play showed a distinct difference in approach for the three target
groups: in the first two targets the actions started off with some form of personal
communication, while the focus for the third target group in the first instance was publicity.
Also later in time there were differences in proposed actions.
4 CONCLUSION
Enforcement and communications are both instruments in the environmental policy
of the national as well as the local/regional government. Enforcement is one of the most
powerful instruments to influence behavior of individuals and consequently, of companies.
Communication is every information flow and information exchange between organizations
or persons with objectives:
environmentally friendly behavior; and
compliance by the regulated community.
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144 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
One of the main problems for environmental enforcement is the imbalance between
the huge amount of companies under regulation and limited enforcement capacity. Therefore
a more sophisticated approach to enforcement is needed. Through communications the
effectiveness of enforcement can be improved. The workshop materials were very useful in
sensitizing participants to the need to distinguish the objectives of communications and to
choose the right kind of communication activities based on both the situation and the target
group involved.
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WORKSHOP 2B ENCOURAGING PUBLIC ROLE IN COMPLIANCE MONITORING 145
WORKSHOP 2B
ENCOURAGING PUBLIC ROLE IN COMPLIANCE
MONITORING AND IMPACT OF PUBLIC ACCESS TO
ENVIRONMENTAL INFORMATION/ COMMUNITY RIGHT
TO KNOW LAWS ON COMPLIANCE AND
ENFORCEMENT PROGRAMS
Discussions built on papers published in the Proceedings of the Second, Third, and Fourth
International Conferences. In addition, discussions benefited from a new capacity building
.support document on the general subject of citizen enforcement commissioned
for the Fifth International Conference to tie together past writings on the subject.
8. Summary of Workshop Discussion, Facilitators: J. Bonine, P. van Erkelens,
A. Oposa Jr., L Paddock, E. Stanley, A. Steinmetz, Rapporteurs: M. Alushin,
D. Mowday, J. Rothman 147
9. South Africa: Case Study on Citizen Participation in Setting and Monitoring
Environmental Standards. (Capricorn Park/A Science Park in Cape Town),
Andrews, Angela 155
Papers 1 - 7 for Workshop 2B and a list of related papers from other International
Workshop and Conference Proceedings are in Volume 1
See also Workshop 3C: Citizen Enforcement
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146 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 2B ENCOURAGING PUBLIC ROLE IN COMPLIANCE MONITORING 147
SUMMARY OF WORKSHOP: ENCOURAGING PUBLIC ROLE
Facilitators: Workshop 2B: Elaine Stanley, Alex Steinmetz
Workshop 2BB: Lee Paddock, Paul van Erkelens
Workshop 2BBB: Antonio Oposa Jr., John Bonine
Rapporteurs: Workshop 2B: Michael Alushin
Workshop 2BB: David Mowday
Workshop 2BBB: JohnRothman
GOALS
Discussions were designed to address the following issues:
The role of citizens and citizen organizations in compliance monitoring.
The impact of their activities in enforcement presence and supporting follow
up.
What support citizens need from government.
Program implications of public access to information on compliance and
environmental monitoring.
Impact on program effectiveness.
Roles the public and citizen groups may play.
How to foster the public role.
How dependent is an effective public role on disclosure of compliance
information.
1 INTRODUCTION
Citizens and nongovernmental organizations are playing an increasingly important
role in assuring compliance with environmental requirements. Effective governmental
programs often include strategic partnerships among environmental NGOs, community
groups, unions, business trade organizations and others. All parties in these arrangements
should be aware of the opportunities and risks involved.
2 PAPERS
Papers related to this workshop include:
Citizen's Environmental Enforcement in Ukraine, Kravchenko, Svitlana
UN ECE Convention to Access to Information, Public Participation in Decision-
Making and Access to Justice in Environmental Matters: Towards More
Effective Public Involvement in Monitoring Compliance and Enforcement in
Europe, Jendroska, Jerzy
Good Governance and Community Participation as Tools to Make
Environmental Enforcement and Compliance Happen, Karanja, Mary
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148 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Experience of Malawi: Public Role in Enforcement, Makawa, Ernest
Public Access to Compliance Monitoring and Enforcement Data: A Look at
the Sector Facility Indexing Project and Other Agency Initiatives, Stanley,
Elaine and Teplitzky, Andrew
Public Influence on the Supervision and Enforcement of Environmental Law in
the Netherlands, van Dijk, Jaap
Public Access to Environmental Information - Legal and Practical Problems:
A Case Study of Tanzania, Ringia, Deogratias William
3 DISCUSSION SUMMARY: WORKSHOP 2B
3.1 The Economic and Social Impact of Citizens and NGOs
Participants agreed that the impact of citizens and NGOs occurs best when they
develop the "critical mass" to become a political force. Direct economic impact could occur,
for example, through a consumer boycott of products from a polluting company. It could also
occur through a political movement to reduce subsidies to polluting industries or to impose
taxes on pollution. The most important social force they can produce is strong general
support for environmental programs. Even when they have limited resources, communities
which are directly affected by pollution can and do act to attack the problem. Both economic
and social pressure can result from legal action by citizens against polluters or government
agencies that fail to effectively enforce environmental laws. In some countries, however, the
economic situation is such that both the industry and the local citizens prefer jobs rather
than environmental protection.
3.2 Roles the Public and Citizen Groups May Play
Early involvement can include participating in the development of standards.
Citizens may also be involved in the development of permit terms and conditions for particular
facilities. Later in the process citizens can stimulate government enforcement action (ranging
from inspection to formal enforcement proceedings) by reporting problems and demanding
government action. Citizens can participate in government-industry negotiations to settle
formal enforcement proceedings. If applicable laws provide for it, in some countries citizens
may directly enforce requirements by starting an administrative or court proceeding,
presenting evidence of violations, and requesting a order requiring the company to comply.
3.3 Barriers to Effective Involvement
The group agreed that there is only a limited amount of time and energy citizens can
spend. The more complicated requirements are, the more difficult it is for citizens to
participate in their enforcement. Even when citizens have a formal opportunity to participate,
limited hearings with predetermined outcomes can prevent citizens from having input and
discourage future participation.
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152 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Next came the question of how can NGO's summon the resources to fulfill this role.
One NGO began by describing how they were dependent on grants from foreign sources such
at the American Bar Association or the US AID. One European country described how the
NGO's were able to receive public funding to carry out their activities. An Asian country stated
that in developing nations it was difficult to operate without government funding and to be
totally depending on citizens for their income. However, on the other side, several
participants were extremely skeptical of government funding in that it might constitute a
conflict of interest when contesting government actions. Another participant said that if you
have government funding and do not "tow the government's line" you would be in danger of
losing your funding.
Another debate revolved around the use of the term "NGO" itself. Several participants
felt the term was negative and denigrating to the organizations. They felt that another term
was need, such as "community based organizations" or "citizen environmentalists."
Finally, the observation was made that if NGO's were so important to assuring public
access to and involvement in enforcement and compliance and the accountability of
government organizations, then this conference should have even greater NGO participation
that it now did, perhaps even as a co-chair of the conference as evidence of the commitment
to the NGO's key role in environmental compliance and enforcement.
5 DISCUSSION SUMMARY: WORKSHOP 2BBB
5.1 Promote and critically examine the AARHUS Convention
The group agreed unanimously that the "three pillars" provided by the AARHUS
Convention (and the Rio convention) i.e., public participation in decision-making, public
access to information, and public access to justice, are necessary minimum requirements
for successful citizen involvement. However, there was animated discussion about how these
abstract principles are applied in specific countries. For instance, several developing
countries reported that they had incorporated the "three pillars" into their laws but that in
practice they were not being applied. There was a general recognition that application of
the principles is a problem in every country.
The group "brainstormed" ways to involve the public. Ways to involve the public
included: creation of legal rights to public participation; provision of scientific advice; NGO
networking; use of radio and television; green marches; use of handbooks and "comic" books,
provision of information in marketplaces (e.g. to involve nomadic publics); plays and puppet
shows; support of religious leaders; support of academics; and local public hearings.
The group discussed the roles that NGOs play in setting program and enforcement
policy. All countries reported some role for NGOs in setting policy. Some found NGOs to
be a "loyal opposition." However, others believed that NGOs distorted priorities. Several
Western European representatives believed that in Western Europe government and NGOs
tend to share priorities and, therefore, they find less conflict between government and NGOs
than in other countries, e.g. the U.S. Many representatives were skeptical about that
conclusion.
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150 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
How does public participation address transboundary problems?
3.7 Conclusion
Citizens and organizations are playing an increasingly strong role. Smart
government administrators are seeking strategic partnerships with environmental
organizations, community groups, unions and business trade organizations.
As a political force, citizen interest can provide important support for environmental
programs. Grass roots, local level is a good place to start. Even when citizens have few
resources, they can be mobilized by an environmental problem that directly affects them.
Citizens can:
• Push government to inspect and enforce.
Participate in government - industry negotiations.
Directly enforce requirements if legal framework allows.
Some Barriers to effective participation include:
Bureaucratic resistance and public discouragement. Overcoming these may
require cultural change.
"Confidentiality" of information.
Overly complicated environmental standards.
Support is needed within each country for public participation including:
Legal authority in environmental laws include provision for real participation.
Public access to environmental discharge and monitoring information.
Training.
Technical and legal assistance.
Funding (but there is risk of NGO being influenced by funding source).
International Support is also needed:
• Funding.
World Bank is sponsoring programs to encourage governments to work with
NGOs.
DISCUSSION SUMMARY: WORKSHOP 2BB
After a review of the participants expectations, discussion centered on three issues:
Mechanisms to raise public involvement
The Aarhus Convention, especially access to justice
Role of the NGO's, including public versus private financing
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150 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
How does public participation address transboundary problems?
3.7 Conclusion
Citizens and organizations are playing an increasingly strong role. Smart
government administrators are seeking strategic partnerships with environmental
organizations, community groups, unions and business trade organizations.
As a political force, citizen interest can provide important support for environmental
programs. Grass roots, local level is a good place to start. Even when citizens have few
resources, they can be mobilized by an environmental problem that directly affects them.
Citizens can:
Push government to inspect and enforce.
Participate in government - industry negotiations.
Directly enforce requirements if legal framework allows.
Some Barriers to effective participation include:
Bureaucratic resistance and public discouragement. Overcoming these may
require cultural change.
"Confidentiality" of information.
Overly complicated environmental standards.
Support is needed within each country for public participation including:
Legal authority in environmental laws include provision for real participation.
Public access to environmental discharge and monitoring information.
Training.
Technical and legal assistance.
Funding (but there is risk of NGO being influenced by funding source).
International Support is also needed:
Funding.
World Bank is sponsoring programs to encourage governments to work with
NGOs.
DISCUSSION SUMMARY: WORKSHOP 2BB
After a review of the participants expectations, discussion centered on three issues:
Mechanisms to raise public involvement
The Aarhus Convention, especially access to justice
Role of the NGO's, including public versus private financing
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152 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Next came the question of how can NGO's summon the resources to fulfill this role.
One NGO began by describing how they were dependent on grants from foreign sources such
at the American Bar Association or the US AID. One European country described how the
NGO's were able to receive public funding to carry out their activities. An Asian country stated
that in developing nations it was difficult to operate without government funding and to be
totally depending on citizens for their income. However, on the other side, several
participants were extremely skeptical of government funding in that it might constitute a
conflict of interest when contesting government actions. Another participant said that if you
have government funding and do not "tow the government's line" you would be in danger of
losing your funding.
Another debate revolved around the use of the term "NGO" itself. Several participants
felt the term was negative and denigrating to the organizations. They felt that another term
was need, such as "community based organizations" or "citizen environmentalists."
Finally, the observation was made that if NGO's were so important to assuring public
access to and involvement in enforcement and compliance and the accountability of
government organizations, then this conference should have even greater NGO participation
that it now did, perhaps even as a co-chair of the conference as evidence of the commitment
to the NGO's key role in environmental compliance and enforcement.
5 DISCUSSION SUMMARY: WORKSHOP 2BBB
5.1 Promote and critically examine the AARHUS Convention
The group agreed unanimously that the "three pillars" provided by the AARHUS
Convention (and the Rio convention) i.e., public participation in decision-making, public
access to information, and public access to justice, are necessary minimum requirements
for successful citizen involvement. However, there was animated discussion about how these
abstract principles are applied in specific countries. For instance, several developing
countries reported that they had incorporated the "three pillars" into their laws but that in
practice they were not being applied. There was a general recognition that application of
the principles is a problem in every country.
The group "brainstormed" ways to involve the public. Ways to involve the public
included: creation of legal rights to public participation; provision of scientific advice; NGO
networking; use of radio and television; green marches; use of handbooks and "comic" books,
provision of information in marketplaces (e.g. to involve nomadic publics); plays and puppet
shows; support of religious leaders; support of academics; and local public hearings.
The group discussed the roles that NGOs play in setting program and enforcement
policy. All countries reported some role for NGOs in setting policy. Some found NGOs to
be a "loyal opposition." However, others believed that NGOs distorted priorities. Several
Western European representatives believed that in Western Europe government and NGOs
tend to share priorities and, therefore, they find less conflict between government and NGOs
than in other countries, e.g. the U.S. Many representatives were skeptical about that
conclusion.
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WORKSHOP SUMMARY-: 2B ENCOURAGING PUBLIC ROLE IN COMPLIANCE MONITORING 153
5.2 The group identified a series of obstacles to public participation
5.2.1 Access to Information from Government and Other Sources
Country representatives reported vastly different universes of government information
that is available to the publics. There was a general recognition that both formal and informal
systems for dissemination of information were desirable. There was consensus that for
formal systems to work there must be clear rights for public access to information.
5.2.2 Insufficient Culture of Public Participation
Some countries (e.g. Guatemala, Kenya, Columbia, Mongolia and Peru) reported
an insufficient culture of public participation. Lack of education and literacy were cited as
aggravating factors.
5.2.3 Financial obstacles
Effective public participation is often expensive to publics, however defined.
5.3 The Need to be Tolerant of Discord
There was a general recognition that encouraging public roles will inevitably cause
discord. In order to effectively bring the public into our debates and decision-making all of
us, government, NGOs and other public representatives will need to develop a tolerance for
discord.
5.4 Examine legitimacy of stakeholder process
The group was unanimous that the term "non-governmental organization" was overly
broad in that it could be understood to include groups protective of the environment as well
as trade organizations devoted to growth of business even at the expense of the environment
and could be understood to include non-profit as well as for profit organizations. Similarly
there is an uneasy relationship between the NGOs, even the obviously pro-environmental
groups, and the "public." Who represents the public? How representative are the NGOs.
Is there a difference between grassroots and mainstream environmental groups? Who
decides who represents the public? Does the government decide? Should NGOs decide?
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154 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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ANDREWS, ANGELA 155
SOUTH AFRICA: CASE STUDY ON CITIZEN PARTICIPATION IN
SETTING AND MONITORING ENVIRONMENTAL STANDARDS.
(CAPRICORN PARK/A SCIENCE PARK IN CAPETOWN)
ANDREWS, ANGELA
Legal Resources Centre, 54 Shortrnarket Street, Cape Town 8000, South Africa
SUMMARY
A science park, spanning 200 hectares and intending to be a densely developed light
industrial site presented a threat of pollution, chemical accidents and ground water
contamination to communities living nearby. Environmental controls which would minimize
adverse impacts were needed in the context of lax standards and poor enforcement by a
generally under resourced state. Opposition by citizen groups evolved into a collaboration
with the local authority to develop a preventative system of environmental management for
the Park. The system included the setting of performance standards for industries, the
evaluation of prospective investors and the setting of conditions and monitoring of compliance
therewith by industries occupying the Park.
1 INTRODUCTION
During 1997 a large development was planned for Cape Town called Capricorn Park,
which would involve the creation of a science park spreading out over 200 hectares of land.'
The park was planned to be the size of the central business district of Cape Town and its
developers estimated that it would create approximately 40,000 jobs. It was advertised as
a project which would provide much needed skills training to the citizens of Cape Town in
the fields of science and technology, in a campus like setting.
Communities and environmental groups were concerned at the proximity of what was
in fact to be a densely developed light industrial site close to the coast and adjacent
communities. The developers claimed that they were not in a position to fully disclose what
types of industries would occupy the site, and instead gave a very broad list of possible future
occupiers. The list included the electronics industry, which raised a number of concerns.
The first was the history of underground contamination in the past at sites such as Silicon
Valley where electronics plants had apparently stored chemicals in leaking underground
tanks. The second was the fact that the Capricorn Park site was located on a shallow aquifer
the contamination of which would adversely affect the nearby coastline which is a large
bathing amenity adjacent to low income communities. The third was the possibility of
accidents or spills involving toxic chemicals which could endanger the lives of adjacent
residents who live very close to he site.
2 ENVIRONMENTAL IMPACT ASSESSMENT
The local Council had sold the land to the park developer subject to a three tiered
agreement, which made provision for a broad brush' environmental impact assessment of
the whole site followed by more detailed environmental impact assessments as the site was
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developed and a final site specific environmental impact assessment for each industry before
it received its service connections. At the time the only statutory provision relating to
environmental impact assessments was contained in a policy provision promulgated under
the Environment Conservation Act, ho 73 of 1989 which required a "planned analysis, involving
public participation" before commencement of any large scale land developments. This
provision was strengthened somewhat by the Constitution which requires administrative
action to be procedurally fair, and which has an environmental protection provision. This
provision states that every person has the right to an environment which is not harmful to
their health and well-being, and requires that reasonable steps be taken in order to conserve
and sustain the environment and protect it from pollution.
3 FAILURETO DISCLOSE: SUFFICIENT IMPACTS
After the broad brush' environmental impact assessment was completed the
developer made application to the local authority for subdivision of the land in order to begin
developing. The local authority was required to zone the land as a result of this application
with conditions as it saw necessary in order to protect, among other things, the environment.
It was argued by the environmental group, the Wildlife and Environment Society, that there
was insufficient disclosure of information in this environmental impact assessment to enable
the local authority to exercise its decision making power in terms of the Constitution and
to take reasonable steps to discharge its duty to protect the environment. The developer
stated that in view of the fact that it had not secured contracts with occupants of the site it
could not accurately speculate about future industries and their impacts. It also did not
choose to disclose detailed information about impacts regarding those industries from whom
it had secured undertakings. The broad brush environmental impact assessment therefore
dealt mainly with issues of storm water, surface landscaping and aesthetic features of the
development. It did not look in sufficient detail, or in a meaningful way, at possible air and
ground water pollution, traffic impacts and risks of accidental chemical releases and spills,
noise and water consumption, issues which were of importance to surrounding communities.
4 CHALLENGETO SUBDIVISION APPLICATION
Once the subdivision was granted, an objection was lodged by Wildlife and
Environment Society in terms of the applicable provincial Land Use Planning Ordinance
which governs town planning. This law requires the provincial Premier to approve or deny
the subdivision, or make changes to it as he/she sees fit, if an objection is made. The
objection was made on the basis that there had been insufficient disclosure of information
for a proper impact assessment to take place, in particular into the cumulative impacts of
the development. Without such impact analysis the local authority it was argued was not
in a position to act reasonably in order to protect the environment as required by the
environmental clause and the just administration clause of the Constitution. This
encompassed in particular the requirement of running a planned analysis with full public
participation. This it was argued could not be fulfilled in the absence of adequate information.
Before reasonable steps could be taken by the Council in its environmental governance an
adequate analysis of impacts and mitigatory measures would be required which would guide
it, and which likewise was not possible without comprehensive disclosure. This challenge
considerably delayed the development during which time the Wildlife and Environment
Society began considering what course of action should be adopted in order to best protect
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ANDREWS, ANGELA 157
the diverse interests which would be affected by the development. The objective of the Society
was not to halt the development which was seen as an important source of future
employment and an economic growth point for the region. During this period the Society
disseminated information and gave a voice to the many other residents and environmental
groups which were concerned with the development (hereafter referred to as "environmental
groups").
5 INTEGRATED ENVIRONMENTAL MANAGEMENT
South African regulatory standards relating to the environment are laxer and less
clear than those which apply in Europe and North America. Furthermore industrial activities
are not regulated in a uniform manner. In some areas there is very little formal regulation
such as in the area of environmental air quality standards. Although there are regulations
as to what may be emitted into the workplace, the question of what emissions may be vented
into the environment generally, through smokestacks or otherwise is far more poorly
controlled. Local authorities control smoke emissions. Industrial emissions are very much
the subject of the regulators discretion. Permits are issued requiring compliance with
standards set on an ad hoc basis by a national pollution control officer who has an almost
total discretion as to what may be emitted.
A development of the type planned for Capricorn Park would be covered by many
areas of regulation, some of which are more effective than others, for example, waste disposal
ground water quality management, coastal zone management, air pollution, hazardous
installations, noise pollution, municipal services, such as sewers and storm water drainage
workplace heath and safety, building regulations and town planning regulations, to name but
a few. In most respects once a right to conduct industrial activity is granted, the protection
of the environment in such a development is governed through criminal prosecution of
offenders who are proven to have violated an environmental standard. The standard of proof
in such cases is guilt beyond reasonable doubt. Fines for contraventions are very low and
have not been shown to act as a deterrent. Regulatory resources for inspection and
prosecution are very scarce and in a country facing a high prevalence of violent crime
prosecution for environmental crimes is seen by many as a low priority. Large scale
developments therefore present a very real threat of causing serious environmental damage.
In this context environmental groups were of the view that it would be more practical
and protective of the environment and surrounding communities to develop an environmental
management strategy for the park which would prevent environmental damage rather than
prosecute polluters. During the period of delay caused by the Premier having to consider
their objection to the development, they proposed a proactive strategy of environmental
enforcement for the Park, should it proceed to be authorized.
6 PROACTIVE ENVIRONMENTAL MANAGEMENT
A proactive environmental management strategy, based of course on adequate
disclosure of information, with the following features was put forward by the environmental
groups:
Oversight body: A representative body, incorporating the developer, local
authorities and environmental groups' representative was proposed to in order
to develop and audit the management strategy.
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Policy review of developers proposals: Review of industry profiles and
development of a system of information disclosure for future activities of
occupants of the Park, including initial disclosure on intended industrial
activity, monitoring of activities once in operation and auditing of compliance
with the environmental management system.
Setting of detailed standards and procedures: After the review, standards and
procedures would be developed which would include controls on waste
(minimization, recycling and handling), water and energy consumption, air
emissions, management of hazardous substances and emergency responses.
7 APPROVAL OF THE SUBDIVISION
During the course of the above negotiations subdivision approval was granted to the
developer but subject to certain conditions. These included the requirement that an integrated
environmental management system be developed for the Park and that an Environmental
Advisory Board be constituted, including a representatives from civil society, the developer,
and various government departments, to oversee the implementation of the management
system. In particular the Board was required to assess industries wanting to occupy the
park, and to advise the local authority on conditions it should impose on activities of such
applicants. These conditions would then become land use conditions which could be
withdrawn if there was non- compliance therewith. It seemed that the Premier had been
informed of the proposals emanating from civil society and had given tacit approval to these
in these conditions. The problem of trying to create an environmental management system
where no regulatory framework existed for one was hopefully overcome through the use of
land use rights referred to above.
8 DEVELOPMENT OF AN ENVIRONMENTAL MANAGEMENT STRATEGY
The Council then proceeded to develop an Environmental Management Strategy in
based on the processes and features set out hereunder. The process was developed by
consultants employed by the Council. The first three components, namely the development
of a background information package, the investors application procedure and the
development of significant issues' to which quantifiable performance criteria could be
attached were developed by the consultant initially employed by the environmental groups.
This arrangement arose as a result of negotiation with the Council in order to give more
legitimacy to the process.
8.1 Background Information for Environmental Management
The environmental management approach for the park was based on two legs, first
detailed assessments of applications of investors with regard to environmental performance,
and second the development of an environmental management system for the park. In some
instances occupants would be required to develop in addition their own environmenta
management system.
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ANDREWS, ANGELA 159
The environmental management system structure consisted basically of a policy
plus an implementation, auditing and review plan. Investors were advised that a management
system along the following lines was being finalized which was based on a number of
internationally recognized environmental management principles and would include the
following items:
history, description and aims of the development;
roles of the local authority, developer, property owners association during the
different phases of the development;
legal requirements, set by South African law as well as the local authority and
who would be responsible for checking on compliance therewith;
discussion of other requirements to which the project was committed, such
as "the polluter pays" principle;
the environmental policy of the Park;
the environmental management program - objectives, targets responsibilities
and timelines;
.operating procedures for the park; and
the fact that applicants would be individually evaluated for potentail of adverse
impact on the environment and in certain instances would be required by the
local authority to develop and implement in addition their own environmental
management system.
Investors were also informed of:
applicable principles relating to environmental management systems generally
for example, Receiving Environment Standards and the principle of Integrated
Pollution Control;
environmental auditing systems including:
- auditing of the environmental management system's of the individual
occupants as permitted by the local authority; and
- process consumption and waste audits in which water and energy usage
and the compositions and quantities of outputs streams are examined and
compared to the companies performance criteria (i.e. permitted
performance conditions).
design and operational limitations of the Park; (These included for example
rules regarding the design of chemical storage tanks; transfer, handling and
storage of materials on site; noise abatement; disposal of waste products'
equipment maintenance and other issues);
further restrictions on use based on zoning which could be applied after the
assessment procedure for occupants had been completed; and
applicable legislation and principles applying to the Park. (This included
reference to the law relating to hazardous substances, health and safety in
the workplace, and emergency procedures and operational hazards both
applicable under South African law and in some instances developed beyond
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160 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
this for the purposes of the Park Environmental management system, for
example, the Environmental Protection Agency list of priority pollutants' list
of hazardous substances).
8.2 The Investors Application Procedure
One of the most important tools of management employed in the Park is prevention
of environmental harm, rather than punishment after the fact, of environmental transgressors.
Investors will therefore be required to disclose information about their planned activities to
the Environmental Advisory Board which then assesses the sensitivity of the proposed
operations with regard to the environment, in order to make it possible to evaluate whether
the applicant is suitable for investment at the Park. The assessment results in a
recommendation to the Council which will approve or disapprove the activity, or place
conditions thereon.
Once the required information is submitted, the applicant is rated green for general
approval, orange' for cases which will be examined and possibly further information
requested, and red' for cases which are refused. Orange cases are for example those
applicants who burn oil or coal, who have inadequate measures planned for dealing with a
number of environmentally hazardous activities, such as the handling and storage of
hazardous substances, or accidents and spills. Red cases are those which use pathogenic
organisms or which use or produce asbestos, PCB's and dioxins. The initial ratings are
evaluated by the environmental control officer, an employee of the local authority, who then
passes them on for further investigation by the Environmental advisory board, who can also
hear representations from the applicants. The executive committee of the local authority
is the final decision making body. Informative documentation is supplied to potential investors
in order to assist them in the application process. The Environmental Control officer liases
with potential investors during the procedure in order to assist them in finding ways to conform
with environmental norms and standards of the Park so that they can be admitted. Applicants
may also still have to apply to other government departments for permits where applicable.
The application questionnaire covers a number of topics, including the following:
nature and size of undertaking and whether technology used is the best
available;
choice of location and identification of possibly dangerous activities;
disclosure of information regarding other existing activities elsewhere;
noise levels likely to be emitted by the plant;
projected water consumption, and wastewater disposal;
energy consumption; and use of energy efficient machinery;
identification of risky organisms used in biological or medical industries;
practices for transporting, handling and storage of hazardous materials;
site inputs and outputs, and waste products and reduction programs;
details of hazardous components of inputs, products and wastes;
details of storage facilities for hazardous process inputs; and
provisions which have been made for spills and accidents.
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ANDREWS, ANGELA 161
In many of the activities where potential exists for detrimental effect on the
environment, the applicant is rated orange' until satisfactory arrangements can be made
to minimize the risk, for example proper arrangements made for the removal of waste where
no such arrangements were originally contemplated by the applicant.
Six significant issues to which) quantifiable "Performance Criteria" can be attached.
The next step in developing the Environmental management system was the drawing
up of a list of potentially significant issues to which quantifiable "Performance Criteria" (i e
environmental performance conditions) could be attached for occupants of the Park
Monitoring mechanisms were developed to check for compliance with these standards After
completing the information disclosure questionnaire, applicants would have to satisfy these
standards before being permitted to commence operations in the Park.
Examples of the application of some of these criteria is contained below:
Emissions to stormwater Stormwater from the Park is discharged into a lake
in the centre of the Park. In order to prevent contamination of the lake,
discharges of substances into the stormwater system which might have this
effect are not permitted. Performance criteria include a ban on discharges into
the stormwater, a routine for the environmental site officer for checking
accidental and intentional discharges and control parameters (i.e. standards)
for monitoring quality of stormwater (e.g. permissible pH, conductivity, coliform
and dissolved oxygen levels; maximum allowed concentrations of heavy metals
. and numerous other compounds).
Quality of water inflow into lak*- |n cases of spillages, washwater and
stormwater in materials handling, transfer and storage areas, water has to be
drained away from storm water systems to a special sump, to prevent
contamination of the lake. This requires preventative design in the handling,
transfer and storage areas, including concrete floors in and bunding around
these areas. Silt and litter traps are required at entry points of stormwater to
the lake. Design of the above features and monitoring of maintenance thereof
is conducted by the environmental site officer.
Emissions to sewers: Permission is required from Local Authorities for
industrial discharges into sewers. Investors who have had conditions set for
discharges to sewers are responsible for appropriate monitoring thereof.
Permissible pH and conductivity of sewerage discharges are set at specified
levels. There is a program for monitoring of pH and conductivity of sewerage
by the environmental site officer at various sites at increasing levels of
frequency leading finally (as is recommended) to continuous monitoring after
the site has been 75% developed.
Solid waste and disposal practices of individual owners: Hazardous waste in
particular is identified. All hazardous waste has to be treated on site or
removed by the producer or an independent removal contractor. Containers
for waste have to be approved by the local authority Medical Health Officer, and
waste containers continuously covered, save where solid waste is being
removed or deposited in them. All hazardous waste producers must keep a
record of hazardous waste produced and the fate thereof. Operators must set
annual targets for the reduction of hazardous waste produced for a given level
of activity. Audits of the above are carried out by the environmental site officer.
There is a separate set of controls on storage and handling as well as audits
for substances which are defined as hazardous chemicals.
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Ambient aroundwater: This is monitored by checking 6 -7 boreholes after
baseline levels have been established. This enables the park to be alerted to
any significant incidents of groundwater contamination. The baseline value
for each borehole environmental control officermes the performance criterion.
7 THE ENVIRONMENTAL MANAGEMENT SYSTEM
The local authority is initially developing the Environmental management system
through negotiation with the developer who is the precursor to the Property Owners
Association of the Park. As set out above expectations regarding environmental performance
of members of the association are in the form of the "performance criteria" which are
negotiated between these parties, prior to development .
The Environmental Advisory Board has been set up. This body evaluates applicants
to the Park and recommends conditions which may be imposed by the local authority on
activities. It also reviews the audits of environmental performance of the Park and can make
recommendations to the local authority regarding modifications of the environmental
management system. It is made up of representatives of the State and the civil society hence
it cannot take decisions on behalf of the local authority. In practice however the local
authority would probably follow its recommendations.
The Property Owners Association in practice has control over the common or shared
areas of the park, and also monitors environmental compliance with the Environmental
management system by its members. Day to day management of the Environmental
management system is the task of an employee of the Property Owners Association known
as the Environmental Site Officer. Implementation measures include general awareness
training of employees as well as competency training of employees whose duties could have
a significant impact on the environment. Other tasks of the Environmental Site Officer are
sampling and monitoring of emissions and activities, investigation and follow-up of incidents
and nonconformity, and doing audits where prescribed by the environmental management
system.
The Environmental Control Officer is an employee of the local authority who is
responsible for the day-to-day representation of the local authority's interests in the
environmental management of the Park. The Environmental Control Officer is involved in the
pre-screening of applicants to the Park, and also conducts ad hoc performance checks on
activities in the Park. Thus the bulk of auditing of compliance with the environmental
management system falls on the Property owners themselves, subject to checks by the local
authority Environmental control officer and review of the Park's environmental performance
through audits, conducted by the Environmental advisory board.
The final features of the Environmental management system are at this stage being
negotiated. The Environmental Advisory Board has been established and the first investors
have been evaluated and approved for the Park.
8 CONCLUSION
In the absence of strong environmental laws and performance criteria communities
can develop institutional mechanisms using Environmental Impact Assessment
Environmental Management Systems and schemes for compliance monitoring of terms am
conditions to more effectively control pollutions and detrimental impacts on human and nature
environments.
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WORKSHOP 2C: COMPLIANCE MONITORING 163
WORKSHOP 2C
COMPLIANCE MONITORING
Workshop discussions built on the description of compliance, monitoring techniques and
programmatic approaches in the "Principles of Environmental Compliance and Enforcement-
text and the UNEP training manual on industrial compliance. Discussions also utilized
papers published in the Conference Proceedings and several related capacity building
documents prepared for the Fourth International Conference including: Self-Compliance
Monitoring Requirements, and one on Multi-Media Inspection Protocols, as well as a new
document commissioned for the Fifth International Conference on Inspector Training course
Compendium, Course Comparison and Example Program Descriptions. Discussions in this
workshop provided an overview of all issues related to compliance monitoring Other
workshops: 2D, 2E, and 2F, focused on distinct aspects of compliance monitoring to allow
participants to focus on particular areas of interest. Further, inspector training was also
addressed in more depth in workshop 4C.
4. Summary of Workshop Discussion, Facilitators: H. ten Hoopen, H. Laing
M. Mulkey, G. van Tongeren; Rapporteur: J. Aden, J. A. Semones '. 165
5. Multi-Sectoral Approach to Compliance Monitoring, Amador, Julian D 169
Papers 1 - 3 for Workshop 2C and a list of related papers from other International
Workshop and Conferences Proceedings are in Volume 1
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164 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 2C COMPLIANCE MONITORING 165
SUMMARY OF WORKSHOP: COMPLIANCE MONITORING
Facilitators: Harley Laing, GervanTongeren, Henkten Hoopen,
Marcia, Mulkey
Rapporteurs: Jo Ann Semones, Jean Aden
GOALS
The discussion was designed to address the following issues:
Goals for compliance monitoring and country examples of decisions about use
of one or more of the following approaches:
- Inspections.
- Source self-compliance monitoring, record keeping and/or reporting.
- Citizen complaints, monitoring.
- Supplemental information.
- Ambient monitoring.
- Aerial reconnaissance.
Decisions on the structure of an inspection program:
- Whether to separate permitting and compliance monitoring responsibilities.
- Use of dedicated environmental compliance inspectors and/or part time
duties for environmental or non-environmental professionals such as oolice
or other staff.
- Single versus multi-media or integrated inspections.
- Use of governmental personnel or third parties or a combination.
- Balancing inspections for routine, for cause, for follow up and for case
development.
Overview of compliance monitoring technology:
- What is the state-of-the-art, what is particularly cost-effective.
- By medium (air, water, groundwater, soils); whether point or non-point
fugitive releases.
- Daytime or nighttime surveillance (e.g. lidar technology for nighttime
distanced observation and measurement of air releases).
Management of compliance monitoring data, quality control programs for
sampling.
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1 INTRODUCTION
Many nations face similar problems in developing compliance monitoring programs
and decisions about the use of one or more of the following approaches: inspections, source
self-compliance monitoring, record keeping and/or reporting, citizen complaints and
monitoring, supplemental information, ambient monitoring, and aerial reconnaissance. The
discussion focused on examples of special problems and special approaches to compliance
monitoring in a variety of countries.
2 PAPERS
A paper on random and risk-based inspection to increase enforcement effectiveness
was prepared by Ivan Rajniak of the Slovak Inspectorate of the Environment. The document
discusses ways to use these tools to increase the agency's efficiency at detecting
companies operating outside the legal framework.
Also, a paper on liquid waste management in western Australia was prepared by
Adam J. Parker, et al which describes a system for collecting waste disposal information
using electronic data exchange and tracking of truck movements. This paper points to the
successful use of global positioning systems to improve compliance and increase the viability
of the hazardous waste industry.
In addition, a paper on understanding compliance through root cause analysis was
prepared by Joanne Berman and Tracy Back of US EPA which offers a research-oriented
approach to identifying sources of noncompliance and trends in targeted industry sectors.
This information is then used to refine strategies for compliance promotion, monitoring and
enforcement for those sectors.
3 DISCUSSION SUMMARY
3.1 Enforcement Programs
The Rotterdam region is the most densely populated area in the Netherlands. More
than 1 million people live within an area slightly under 700 km2. A large industrial complex
which includes petrochemical companies and refineries is located in the same area. Major
environmental problems include air pollution, industrial and residential waste, soil
contamination, noise and safety concerns. The DCMR Environmental Protection Agency
represents both the provincial government and the local government to speak with one voice
in addressing these issues.
Enforcement is seen not as an end in itself but as an instrument to promote
compliance with environmental rules. Effective enforcement makes maximum use of
enforcement options to achieve environmental objectives. These options include: periodic
inspections, communication with companies and residents, and the use of administrative
and criminal enforcement actions.
In order to achieve a sustainable society, DCMR supports a "tailor-made
enforcement approach for those enterprises that distinguish themselves in environmental
behavior. This differentiation is based on an evaluation of the environmental risk, the
environmental impact and the environmental performance of each enterprise. Enterprises
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WORKSHOP SUMMARY: 2C COMPLIANCE MONITORING 167
are categorized as "frontrunner" companies which implement a wide range of environmental
measures, "middle runner" companies which implement limited measures, and "straggler"
companies which either do not comply or comply inadequately.
Egypt and Slovakia use a "tiered" approach to conducting inspections at industrial
facilities. In Egypt, a general visit is conducted at all facilities. A second visit is conducted
at those facilities who have not complied. A third visit involves detailed scrutiny of the
operation. In Slovakia, for larger plants, a multimedia effort involving air, water and waste
inspectors is utilized. At smaller facilities, media specific inspections allow for more
specialization. In both Egypt and Slovakia, the inspections are targeted based on industry
sectors.
Sweden places strong reliance on self-monitoring. A surveillance program is jointly
funded by operators and the government. Ghana places strong reliance on investigating
complaints from the public. Resulting actions include permit withdrawal, remediation,
relocation, plant closure, administrative orders, and prosecution.
3.2 Sustainability
The Inter-American Development Bank is taking a strong role in ensuring that every
project is being done in a sustainable manner. Proposals for dams, highways, mining and
irrigation projects are being evaluated to ensure that they meet not only the environmental
needs of today but of the future as well. The Inter-American Development Bank is working
with other banks in joint ventures around the world to achieve these goals.
Nigeria has developed a requirement that each company conduct an environmental
audit every five years. Approved consultants conduct the audits and inspectors review
facilities for compliance. The national government is planning to publish a report on the status
of these companies.
3.3 Public Participation
In some countries citizen participation in environmental issues takes many forms
and presents many problems. For example, in Ecuador, local residents took matters into
their own hands and shut down an oil pump which local residents felt was polluting the water.
The government is interested in promoting media coverage of these kinds of events but is
unsure of the proper approach. In St. Lucia, the government has a good deal of environmental
information and data since it licenses all industries., However, it is uncertain as to how to
develop its messages and to which audiences. In Slovakia plants are required to display
emissions data in the front hall of the facility. So far the public isn't paying much attention.
Cambodia promotes public participation in its one, very broad environmental law. However,
since the environment is a new issue, environmental offices share overlapping responsibilities
and no standards exist for water quality, air or effluent discharge.
In other countries a variety of approaches are being tested to actively promote citizen
involvement. Jamaica has developed a method to distribute permit and licensing information
to the public. Information regarding conditions of approval is made available through the
parish wardens and local planning authorities. In addition, a national environmental education '
program for schools, police and the judiciary has just been launched. Bulgaria is designing
a program to employ public/citizen inspectors to augment the state inspection effort. The
program allows citizens to accompany state inspectors on certain site monitoring activities.
Sweden publishes all industry data including production data and all emissions data are
publicly available.
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4 CONCLUSION
While no single approach emerged to resolve the common goals of strengthening
enforcement programs, improving enforcement capacity and enhancing public participation,
there was agreement that many tools can be used to achieve these goals. While these tools
may be used differently at different times in different countries, there was agreement that
effective enforcement makes maximum use of diverse compliance tools in order to achieve
maximum environmental benefit.
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AMADOR, JULIAN D. 169
MULTI-SECTORAL APPROACH TO COMPLIANCE MONITORING
AMADOR, JULIAN D.
Environment and Natural Resources, Environmental Management Bureau, 99-101 Topaz
Building, Kamias Road, Quezon City, Philippines
SUMMARY
The growing awareness of environmental impacts associated with development
projects coupled with the increasing demand for public participation in managing such
impacts, callsfordeliberateeffortstocontinuouslyinvolvevariousstakeholdersintheoverall
strategy on environmental protection. In the Philippines, public participation is pursued not
only in planning for environment friendly development but is greatly prioritized in the actual
implementation of such development. The Philippine Environmental Impact Statement
System in particular, provides participatory mechanisms for various stakeholders not only
dunngthe review process butas well as afterthe EnvironmentalComplianceCertificatehad
been issued. Ensuring public participation in compliance monitoring gives greatercredibilitv
to the Environmental Impact Statement System.
The Multi-Partite Monitoring Team is a required mechanism underthe System Its
creation aims to encourage public participation and greater stakeholders' vigilance and to
prov.de appropriate check and balance mechanisms in compliance monitoring of development
project implementation. This multi-sectoral approach delegates roles and functions to
identifiedstakeholders(localexecutives,community leaders, non-governmentorganization
indigenous people, etc.) regarding monitoring compliance, handling of complaints'
dissemination of information and preparation of reports. While the Multi-Partite Monitoring
Team creation does not absolve both the regulator and the industry of monitoring
responsibilities.itseffectiveoperation provides strong basisfor regulatory and management
decision-making processes.
Jhf Multi-Partite Monitoring Team is seen as comprehensive tool to address
biophysical and socioeconomic monitoring of a particular development Its approved
environmental monitoring plan systematizes its monitoring work. An environmental
monitoring fund put up by the project proponent is established to support the Multi-Partite
Monitoring Team. In cases of damages due to accidents and the necessary rehabilitation
an environmental guarantee fund is likewise established.
Documented case studies show the effectiveness of this multi-sectoral approach
especially when there is limited monitoring capability on the part of the regulatorand a strong
effort to promote local environmental governance.
1 BACKGROUND
The present state of the Philippine environment calls for the integration of
environmental considerations in development planning. Towards this end, the Philippine
Environmental Impact Statement System is believed to be one of the most powerful tools
to achieve sustainable development, a development that meets the needs of present
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170 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
generation without compromising the ability of future generations to meet their own needs
(1992 Earth Summit). In the Philippines, the successful implementation of the Environmental
Impact Statement System is considerably dependent on how effectively public (stakeholders)
participation is pursued. Lack of public participation usually results to a low social
acceptability while extensive public participation often guarantees high social acceptability.
Despite meeting the technical requirementsof the EnvironmentallmpactStatementSystem,
many development projects are delayed by strong opposition that is largely due to failure in
public participation. This may, however, positively demonstrate the extent of public
awareness and consciousness of development-environment interactions and the need to
involve various sectors in sustainable development planning.
2 SOME LEGAL CONSIDERATIONS
While the Philippine Environmental Impact Statement System was actually
implemented in the early 1980's, it was only in the 1990's that public participation became
significantin the Environmentallmpact Assessment process. The latest implementing rules
and regulations of the Environmental Impact Statement System Law "enhances maximum
public participation in the Environmental Impact Assessment process to validate the social
acceptability of the project or undertaking so as to ensure the fullest consideration of the
environmental impact of such project or undertaking".
While the task of protecting the environment is primarily given to one department,
in reality, a number of government agencies, both at the national and local levels impinge
on this task, qualifying them as partners.
The Local Government Code of 1991 provides for the devolution of some environmental
functions from the national government agencies to the local government units. This particular
law gives local executives the mandate to manage their local environs. Thus, their
participation is not only desired but also required.
In addition, there is a strong effort among organized communities, peoples' groups
and other marginalized sectors to participate in environmental protection efforts.
3 PUBLIC PARTICIPATION DEFINED
The environment involves not only the biophysical aspect but also the socioeconomic
dimension of development projects. People are partof the environment and are often affected
by developmentprojects. Public participation therefore becomes crucialin making decisions
that affect their lives and their environment. It also recognized that people possess intimate
knowledge about their environment, have needs and aspirationsforsocioeconomicuplifting
and are recipients of benefits or environmental stress arising from development projects.
Public participation gives citizens the opportunity to influence major decisions that affect
them. In the Environmental Impact Assessment process, the goal of public participation is
to enable citizens to take responsibility for environmental protection and management through
active involvement in decision making.
Public participation is the most effective process to determine social acceptability
of a project or undertaking. In addition, it offers the following added values and benefits:
Helps to identify and address concerns of stakeholders.
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AMADOR, JULIAN D. 171
Focuses planning on issues or concerns.
Provides alternatives for planning consideration.
Provides added sources of expertise.
Reduces level of misinformation and distrust.
Improves decision making.
Empowers the citizen to take responsibility in environmental protection.
^ ^^ effectivePublic Participation. Stakeholders
, Cant'y affeCted by a Pr°ject °r undertaking such as, but not
impact APssesCsSCi SSU?" "" elidted h ^ f°"°Win9 ^ °f the Environmental
Scoping.
Baseline studies, ecoprofiling or validation.
Impact identification and prediction.
Validation of impact identification/prediction and impact evaluation.
Negotiation and dispute or conflict resolution.
Public hearing.
Environmental Management Planning.
Environmental monitoring.
Implementation of sanctions or penalties.
4 PUBLIC PARTICIPATION IN COMPLIANCE MONITORING
* Tered by the Environmenta' Impact Statement System and issued an
o
of Env ronmentand Natural Resources. As a minimum requirementin compliance monitorinq
correCs±dS S £ """^ ^ ^ DePartmento^nviranmentand Natural ReSSSS
correspond to the conditions provided in the Environmental Compliance Certificate In
'
. ent
li also be monitored. Further, the industry is required by law to
ed?' ThS Departmentof Environmentand Natural Resource have
established a self-monitoring system Co guide the industry
S6t '" the
Monitor compliance with the Environmental Management Plan and with
applicable laws, rules and regulations.
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172 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Provide a basis for timely decision-making and effective planning and
management of environmental measures through the monitoring of actual
project impacts vis-a-vis the predicted impacts.
To promote public participation and in the light of limited resources and capability
for monitoring the Department of Environment and Natural Resources has initiated a multi-
sectoral approach to compliance monitoring especially for environmentally-criticalprojects.
This mechanism calls forthe organization of the Multi-Partite Monitoring Team by the project's
proponentas early as possible prior to the construction/implementationphase of the project.
This, however, does not preclude the Departmentof Environmentand Natural Resourcesor
the proponent from conducting its own monitoring, as deemed necessary.
The purposes for organizing the Multi-Partite Monitoring Team are to encourage
publicparticipationandgreaterstakeholdersvigilanceandtoprovideappropriatecheckand
balance mechanisms in the monitoring of project implementation. The Multi-Partite
Monitoring Team shall:
Monitor project compliance with the Environmental Management Plan,
Environmental Compliance Certificate conditions and other related permits.
Gather relevant information to facilitate determination of causes of damages
and validity of complaints or concerns about the project.
Prepare, integrate and disseminate monitoring reports and submit
recommendation to the Department of Environment and Natural Resources.
Monitor community information, education and communication activities.
The composition of the Multi-PartiteMonitoring Team and their responsibilities shall
be provided in a Memorandum of Agreement negotiated by the proponent, the Department
of Environment and Natural Resources and the major stakeholders. In all cases, the Multi-
Partite Monitoring Team shall be composed of representatives of the proponent and of a broad
spectrum of stakeholdergroups including representativesfrom the local government's units,
non-government organizations, and peoples organizations, the community, the women's
sector and whenever necessary, the academic, relevant government agencies and other
sectors. Criteria for the selection of representatives to the Multi-Partite Monitoring Team
should consider capability in monitoring, credibility and stature in the community,
commitment with a high sense of civic duty and availability for regular monitoring activities.
The Multi-Partite Monitoring Team is operationalized through the formulation of an
annualized monitoring plan that covers air and water quality, biophysical and socioeconomic
monitoring activities. It may engage the assistance of experts in its monitoring activities in
cases when such expertise cannot be provided within the Multi-Partite Monitoring Team.
5 FUNDING REQUIREMENTS
To support the Multi-Partite Monitoring Team operation, the proponent commits tc
establish an Environmental Monitoring Fund. The amount to be allocated for the
EnvironmentalMonitoring Fund is determinedon the basis of the estimated cost of approve<
environmental monitoring plan.
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AMADOR, JULIAN D. 173
An I
determined b7thTn?n^T^ee Fmd 'S "kewise established for projects that have been
DubTcrSforwhS mentf°fEnvironmentandNatural Resources to poseasignificant
publ c risk or where the project requires rehabilitation or restoration. The Environmenta
Monitoring Fund may be used for the following purposes: nv.ronmemai
' I!!"!6*3,? re?bimation of areas affected by damages in the environment and
the resul ,ng deterioration of environmental quality as a direct consequence
of project construction, operation and abandonment
' imp'acTJS^ Paffles and -""-munities ef,ec,8(1 by ,he negative
studles- **as™be ne8aed
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174 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP 2D: MULTI-MEDIA (INTEGRATED) INSPECTIONS AND PERMITTING 175
WORKSHOP 2D
MULTI-MEDIA (INTEGRATED) INSPECTIONS AND
PERMITTING
Many nations are moving toward integrated permitting and inspection and others are
considering these approaches.
3. Summary of Workshop Discussion, Facilitators: C. Booth, R. Cheatham,
K. Macken, T. Maslany; Rapporteurs: G. Ginsberg, M. Renders '. 177
Papers 1 - 2 for Workshop 2D and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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176 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 2D MULTI-MEDIA (INTEGRATED) PERMITTINGAND INSPECTION 177
: MULTI'MEDIA INTEGRATED) PERMITTING
Facilitators: Workshop 2D: Ken Macken, Tom Maslany
Workshop 2DD: Christopher Booth, Reggie Cheatham
Rapporteurs: Workshop2D: Michael Fenders
Workshop 2DD: Gail Ginsberg
GOALS
Discussions were designed to address the following issues:
The extent of country experiences with integrated permitting and/or integrated
(multi-media) inspections.
How an integrated permit is defined, specifically whether it covers procedural
integration, administrative integration, substantive integration or all three
What is different about integrated versus single media or program permits.'
How integrated or multi-media inspections are defined including multi-media
screening, cross program or combined inspections, team inspections and
process-oriented inspections.
Advantages and disadvantages of integrated permits and whether they are
more or less efficient and effective and why, in what circumstances.
Potential and actual results from integrated permits that would not have
resulted from single-mesdia permits.
Level of difficulty in issuing and monitoring compliance with integrated permits-
more or less difficult to achieve compliance by the regulated community.
Special expertise needed to implement integrated inspection programs.
Impact on integration of compliance and pollution prevention concerns and
approaches.
1 INTRODUCTION
Many countries have either already adopted multimedia approaches to permitting
and enforcement or are planning to do so. The current interest in developing such approaches
is largelydriven by the European Community directive for Integrated Pollution Production
and c°ntrol (IPPC) which requires integrated permitting beginning in 1999, to be fully
implemented by 2007 European nation participants, in particular, were interested in gaining
experience and knowledge in preparation for meeting these requirements. Other nations
expressed interest in these concepts from a resource, pollution control, and environmental
Benefits perspective.
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178 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 PAPERS
Papers prepared by Padraic Larkin, "incorporation of Environmental Management
Systems into Integrated Pollution Control Licensing in Ireland", and Mikael Lundholm,
"Integrated Permitting in Sweden," describe strategies and processes for integrated
permitting, inspection and enforcement response in those countries.
3 DISCUSSION SUMMARY: WORKSHOP 2D
Best quotes:
"Which imbecile has written those conditions?" Ireland, on the need to integrate not
just media programs, but permitting and inspection functions as well.
"When you are not the lead dog, the view never changes" Canada, on the difficulty
of implementing change under current administrative structures, with more general
applications as well.
3.1 Defining "integrated, permits and integrated permitting"
The following definitions, drawn directly from the workshop write-up on this subject
in the Fourth Conference Proceedings, were adopted by the participants.
"Integrated permits were defined by the participants as: one permit related to one
facility covering all elements of the environment. The group realized that there were different
approaches and goals for integrated permitting systems and integrated permits that existed
around the globe, ranging from integration of permitting processes to integration of the
substantive requirements in a permit. Three categories of approaches were identified with
three types within one the categories yielding a total of five different approaches:
1 The Staple approach which added together the results of what were essentially
separate permitting processes to deliver a single permit.
2 A coordinated approach in which separate permitting processes are
coordinated to ensure that cross-media and cross-program transfers of
pollution do not occur and that information about the facility is shared for
purposes of decision-making on a media-by-media and program-by-program
basis.
3 Holistic approaches which create new substantive requirements as a result
of permit integration at three possible levels:
a) best available technology from a multi-media standpoint is applied;
b) pollution prevention and cleaner technology is emphasized in addition to a
base-line of compliance including resource; and/or
c) the integrated permit takes into account overall environmental impacts and
the management system which implements them."
3.2 Country experiences with integrated permitting
In reviewing country experiences, fully two-thirds of those represented had
implemented some form of multi-media or integrated permitting and/or multi-media
inspections. Several countries had experience with integrated permitting that is holistic.
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WORKSHOP SUMMARY: 2D MULTI-MEDIA ( INTEGRATED) PERMITTING AND INSPECTION 179
Among the countries participating in the workshop, Ireland, Sweden, Israel, and Greece had
experience with holistic approaches, taking into account overall environmental impact,
including ecological conditions in a single environmental permit. Finland was mostly
integrated, except for water. Brazil, Bulgaria, Belgium, Poland, Romania, and the U.K. have
multi-media permits, with the Brazilian state of San Paulo's "born integrated and multi-
media". Hungary has sectoral permits, sometimes integrated, with other nations moving
towards or experimenting with various multi-media approaches.
Ireland incorporates a condition requiring an Environmental Management System
in its Integrated Pollution Control Licenses as a way to assure implementation of an
integrated approach and allow for inspection and enforcement response around the
parameters of the identified and enforceable management system.
3.3 Implementation Issues: Legal; Organizational, Management; and Expertise
It was noted that moving to integrated approaches is much easier if a country
adopts integrated laws and requirements. Single medium permitting and inspection,
however, remain the norm in many countries, and so organizational lines are still defined by
medium. Accordingly, a move to integrated permitting or inspections —absent integrated
laws and multimedia expertise— raises organizational issues created by both the
requirements of single media expertise, the need to cut across organizational authority, and
the ability to evaluate systems and new technologies.
3.4 Conclusion
The following conclusion drawn from the Chiang Mai write-up remains the same:
"Most all nations noted a problem with the need for greater expertise and management of
multi-media permitting and inspection. Several nations expressed concerns with the difficulty
of enforcement with multi-media permitting and inspection. All noted a lack of training and
resources for multi-media approaches and several expressed concerns that it would be easy
to miss problems if a multi-media inspection did not retain adequate expertise and resources
to address all the media in detail. It was observed that as cross-media and holistic
approaches and expertise for environmental management and inspection develop, that
expertise may be used to fashion new and integrated laws with enforceable requirements
that cut across all media."
4 DISCUSSION SUMMARY: WORKSHOP 2DD
An integrated approach to multimedia permitting and inspection produces many
challenges and many benefits which are common to both activities. Although the discussion
below attempts to identify factors unique to each of these activities, the reader should bear
in mind that there is considerable overlap.
4.1 Challenges to Integrated Permitting
In many countries, different media may be managed by different parts of an agency
or even different agencies of government. A multimedia approach may necessitate
restructuring the government, in some instances leading to the creation of new, large
bureaucracies. There may be resistance from those who see themselves as losing power.
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180 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Reluctance will also come from those who perceive a loss of expertise through integration
of all media. Finally, someone must answer the question: Who executes or issues a
multimedia permit?
There is no clear consensus on whether multimedia permitting requires integration
at the administrative and procedural levels, as well as substantive integration. However, there
is agreement that coordination is the responsibility of the government, not the permit
applicant.
Single media experts often fail to communicate with one another. A multimedia
approach requires constant consultation, clear and comprehensive guidance, and
management willingness to make experts work together. A corollary is that many current
regulatory staff have only single media expertise. A multimedia approach demands skills
which may not currently exist, and raises the potential for loss of single media expertise.
Where there is a requirement for both a business license and an environmental
permit, the conditions of each may not be coordinated and could be incompatible.
An unanswered question is: How are environmental benefits/impact quantified in a
multimedia approach?
4.2 Benefits to Integrated Permit Approach
From both an environmental and a regulatory standpoint, there can be many
advantages to using integrated permits. One benefit of an integrated permit is the ability to
avoid exporting pollution from media-to-media. Another benefit is that a multimedia approach
forces the regulators to look into the processes in operation at a particular facility and not
just look at the end of the pipe. This strategy may lead to process-based solutions, may
also be more energy efficient and fewer natural resources.
Some countries see resource advantages to issuing a single, integrated permit, as
well as advantages in prosecution of violations. The clear advantage for the regulated
community is the prospect of "one-stop shopping" - the ability to obtain just one permit for
all environmentally-related activities at a single facility.
4.3 Challenges for Multimedia Inspections
In many, if not most countries, there is a lack of expertise to perform multimedia
inspections. Few agencies have inspectors trained to perform these inspections, or very
few such inspectors. The challenge is to insure a critical mass of inspector resources and
to build multimedia inspection teams. In some countries, inspectors do not have the level
of education needed to develop successful multimedia inspectors. The question remains
on the table: Is there a need for a "super inspector"?
Several countries raised the question of which entity should conduct the inspections
- the central government vs. the province or state? A related issue is that public complaints
often focus on a single media problem.
Although multimedia inspections are often considered advantageous to the regulated
entity, there are also disadvantages. For example, when the government knocks on the
facility's door with a group of inspectors, there may not be sufficient management staff on
duty to escort the inspectors. This may or may not be advantageous to proper conduct of
the inspections.
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WORKSHOP SUMMARY: 2D MULTI-MEDIA (INTEGRATED) PERMITTING AND INSPECTION 181
There is considerable debate over the question: What is the role of the multimedia
(or other) inspector? Is the inspector an advisor or an enforcer? This issue was hotly debated
during this workshop, with no clear consensus emerging from the participants. A related issue
is whether the inspector is empowered to investigate beyond the confines of the facility's
permit? }
4.4 Benefits to Multimedia Inspections
Everything must go somewhere. The multiple inputs to any industrial process all
end up somewhere, either in the environment or the final product. A multimedia approach
to inspections can focus on industrial processes and enable the government to identify the
cross-media transfer and the endpoint of all pollutant contributions.
Multimedia inspections, especially those which use a process approach can help
facilities identify opportunities for pollution prevention. Solutions to pollution problems may
be process-based. In some instances, it may be advantageous to conduct multimedia
screening inspections.
There may also be opportunities for technology transfer as a result of multimedia
inspections. For example, one participant related the experience of using the knowledge
gamed from inspection at one type of dioxin-emitting facility to evaluate the feasibility of
requiring another dioxin emitter to meet lower standards.
4.5 Lessons Learned
A well-drafted, enforceable integrated permit is essential to the success of a
multimedia inspection program.
4-6 Conclusion
A multimedia approach to permitting and enforcement enables the regulator to
svaluate a single facility's technology on a holistic basis and, balancing various
:onsiderations and inputs, to design the best strategy for the facility and the environment
However, the advantages of multimedia permitting and inspections do come at a cost Most
jovemments do not currently have personnel with multimedia experience and it is feared
hat where regulatory staff operate across all media, there is an accompanying loss of
sxpertise to each individual medium. There also may be a need for substantial reorganization
jf regulatory agencies in order to achieve true integration across programs.
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182 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP2E: SOURCE SELF-COMPLIANCE MONITORS REQUIREMENTS 183
WORKSHOP 2E
SOURCE SELF-COMPLIANCE MONITORING
REQUIREMENTS
n.1 keeplng- and/or reportin9 plays an essential rale
Workshop W°^h°P 2E and a Iist of re'ated papers from other International
Workshops and Conference Proceedings are in Volume 1
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184 FIFTH INTERNATIONAL CONFERENCEON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 2E SOURCE SELF-COMPLIANCE AND MONITORING REQUIREMENTS 1 85
SUMMARY OF WORKSHOP: SOURCE SELF-COMPLIANCE
MONITORING REQUIREMENTS
Facilitators: Kees Boekel, Ron Kreizenbeck
Rapporteur: Maria Comino
GOALS
Discussions were designed to address the following issues:
Design of source self-compliance monitoring, record keeping and/or reportina
requirements: ' H y
- Types of sources to which it applies.
- Parameters and frequency of monitoring.
- Form of reporting (standard forms, all data or exceptions) and frequency
(real time, monthly, quarterly, semiannually, exceptions) electronic versus
paper.
- Data management.
- Quality control and assurance programs.
Uses for source self-compliance monitoring information in the enforcement
program:
- Assurance of permittee or regulated community's self awareness.
- Requirements for corrective and/or preventive response by the regulated.
- Basis for targeting inspection.
- Basis for defining a violation and enforcement response.
- Modelling of ecosystem performance.
Use of environmental audits by third parties or by regulated sources:
- Voluntary and confidential or requirements to conduct and report self-
evaluations.
- Nature of reporting (entire report, exceedences, environmental
performance).
INTRODUCTION
Countries are at different stages in their development of monitoring and source self-
h" ' Onn9 rec'"lrefments. Computer technology is assisting the collection
™ r Vi6 , er °f mformation from oP^ator to regulator. There is growing
recognition of the value of source self-compliance monitoring because it shifts some of the
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186 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
responsibilities that enable compliance to the operator. Equally, participants stressed the
importance of ensuring that only useful information is collected to avoid the collection of
lengthy data with little utility.
Overall, participants confirmed the value of source self-monitoring as a tool in the
monitoring process, but emphasized the importance of effectively reviewing the source self-
compliance requirements.
2 PAPERS
Reference was made to the papers prepared by Markku Hietamaki on Self-
Monitoring, Reporting and Compliance Monitoring in Finland, and Calderon Bartheneuf J.L.
on Environmental Auditing in Mexico, included in the Conference Proceedings Volume 1.
3 DISCUSSION SUMMARY
3.1 Preconditions to Effective Source Self-Compliance Monitoring
It was noted that source self-compliance monitoring is appropriate where the
sources can be precisely measured. For example, it is not appropriate in the case of waste
management where measurements are only a part of compliance monitoring. Technical
information must be in a form amenable to verification, and the parameters and purposes
for information collection should be clearly specified to ensure that only data relevant to the
compliance assessment is collected. In some countries, source self-compliance monitoring
requirements are included in the operator's license conditions.
3.2 Incentives
The principal reason for self-monitoring requirements is to ensure industrial self-
compliance at the site of industrial operations and secondly to provide continuing information
to regulators to monitor compliance status and respond to violations.
It was also noted that operators in many cases needed incentives for source self-
compliance monitoring, but for instance in Nordic countries, self-compliance monitoring is
generally used. To be effective, they needed to be based on a clear understanding of the
likely responses of regulators to particular violations.
Incentives could include providing regulatory flexibility in exchange for the provision
of more detailed information. Source self-compliance monitoring could be an aspect ol
environmental performance awards to show where operators had gone beyond minimum
requirements. Model operators needed to be rewarded particularly in those countries where
'cowboy' operators were prolific.
3.3 Advantages of Source-Self Compliance Monitoring
Several advantages of source self-compliance monitoring were noted for both the
regulator and the operator.
For the agency, it can contribute to the overall efficiency of its compliance an<
enforcement programs, by generally decreasing demand on the agency and allowing th<
agency to develop and focus its expertise on the review and evaluation of the monitoring data
It can help clarify where the key problems are.
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WORKSHOP SUMMARY: 2E SOURCE SELF-COMPLIANCE AND MONITORING REQUIREMENTS 1 87
For the operator, it can become part of good business practice. It can also assist
operators meeting their obligations under ISO14000.
3.4 Clarifying the Role of Regulator
Although there were advantages to source self-compliance monitoring, a clear
identification of the role of the regulator was required to ensure its proper implementation
With current trends towards delegation of many government functions to the private sector
it is important that the regulator approves the self-monitoring and reporting system and has
the power to evaluate the results and to subsequently require the adjustment of operators-
activities. Operators needed to be fully aware of that potential. Such a definition of roles
would contribute to the overall transparency of the process.
3-4-1 Operator Responsibility for Compliance
For the same reasons, operators needed to understand that satisfaction of
international standards like ISO14000 did not remove the responsibility of the regulator
properly reviewing monitoring data and conducting inspections to verify this information This
was because ISO14000 did not adequately identify overall environmental goals or standards
to which operators needed to direct their performance.
3.4.2 Roles of Third Parties
Third parties could also be involved in the process of auditing the operation of
monitoring systems. However, the impartiality of third parties had to be thoroughly assessed
to ensure that in the preparation of their reports they are not partial to particular operators
Third party audits provide information on compliance and can reduce demands on an agency
but the role of the regulator must remain one of determining ultimate compliance that cannot
reqU'reS the re9ulator to develop the ability to assess self-monitoring
3.4.3 Confidentiality
Participants also noted the tensions between the provision of information for
enforcement work and the need to provide some protection of operator information to protect
commercially confidential information. The challenge was to look at how both considerations
could be adequately balanced.
4 CONCLUSION
Recognizing the needs identified above, in particularthe overriding role of government
in defining and evaluating the monitoring process, there is good potential for further
implementation of source self-compliance monitoring requirements, assisted by ongoing
improvements to computer record-keeping.
Workshop participants identified advantages of source self-compliance for both the
regulator and the operator. For the agency, it can contribute to the overall efficiency of its
compliance and enforcement programs. For the operator, it can become part of good
business practice. a
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188 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
At the same time, participants emphasized the importance of being clear on the role
of the regulator. With current trends towards delegation of many governmental functions,
it is important to ensure the regulator retains key powers to evaluate monitoring results and
to subsequently require the adjustment of operators activities. It must also be clear that
satisfaction of international standards like ISO14000 does not remove the responsibility of
the regulator to properly review monitoring data.
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WORKSHOP2F: DETECTINGHlDDEN OPERATIONS OUTSIDEOF LEGAL FRAMEWORKS 1 89
WORKSHOP 2F
DETECTING HIDDEN OPERATIONS OUTSIDE OF LEGAL
FRAMEWORKS
1. Summary of Workshop Discussion, Facilitators: L Spahr T
Rapporteur: A. Lauterback'-
191
o, 2F fr°m °ther '
Conference Proceedings are in Volume 1
Workshops and
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190
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 2F DETECTING HIDDEN OPERATIONS ,191
SUMMARY OF WORKSHOP: DETECTING HIDDEN OPERATIONS
OUTSIDE OF LEGAL FRAMEWORKS
Facilitators: Linda Spahr, Ton Spel
Rapporteur Andrew Lauterback
GOALS
Discussions were designed to address the following issues:
Problems countries experience with hidden operations, e.g. unpermitted,
unauthorized wetlands or natural resource destruction, construction without
a permit, illegal logging, waste or product import/export. How much is known
about the magnitude of these problems given that by definition they are hidden.
How enforcers have successfully detected hidden operations for these
problems and what the key factors were in their success.
What problems face officials and how might they be overcome with improved:
• Data analysis.
• Education 'of citizenry.
• New types of inspection and investigation methods.
• Other.
1 INTRODUCTION
Given the economic incentive to avoid costs of pollution control or pollution prevention
it is important to reward those comply by ensuring that those who try to avoid the regulatory
scheme are detected and brought within its requirements. The workshop focused on how
environmental compliance and enforcement personnel can effectively detect hidden
operations, those operating outside the legal framework such as the sources operating
without permits or who remain outside our registries.
2 PAPERS
No new papers were prepared for this workshop.
3 DISCUSSION SUMMARY
3.1 Types of Hidden Illegal Operations
Most countries appear to be experiencing similar types of illegal operations that fall
outside the purview of the regulatory program. Most prevalent among these hidden ventures
include: concealed violations at legally operating facilities, illegal operations that fall entirely
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192 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
outside the regulatory scope, masking an operation under the guise of a legal operation; i.e.,
fraud, and other criminal activities that as a consequence cause environmental violations,
e.g., illegal drug manufacturing generates hazardous waste.
3.2 Problems in Detecting Illegal Operations
The countries participating in the workshop discussion experienced similar problems
in detecting illegal operations. Those problems included:
knowing where to look;
the enforcement authorities may have the information, but that information may
not be admissible in court (such information could still be used for targeting
purposes);
problems with information exchange between governmental agencies; and
a lack of training of police officers to detect hidden illegally operating facilities.
3.3 Detection Techniques
Uncovering hidden illegal operations is one of the biggest challenges facing
environmental enforcement officials. It requires experimenting with innovative techniques.
Some of these approaches have been successful, including:
• mapping sensitive sites with aerial photography in order to develop a database;
use of environmental criminal intelligence and analyses;
comparing data from similar time or events; e.g., discharge data of facilities
over time by use of composite samplers hidden in manholes;
looking at chemical signatures, including oil from ships;
blending traditional criminal investigative techniques with regulatory inspection
techniques;
using microtaggants and DNA analyses of selected endangered species in
order to develop a database;
use of Global Positioning Systems to monitor barge and ship movements in
order to determine illegal dumping in harbors and ship channels; and
use of tips from networks established with other governmental authorities and
citizen volunteers.
4 CONCLUSION
Although the workshop topic concerned the detection of hidden illegal operations,
most comments and discussion gravitated toward interactions between the police and the
administrative agencies and also the desperate need for additional training. It was felt that
the law enforcement authorities were not sufficiently trained to recognize environmental
violations and provide initial response. There was also a feeling that a greater degree of trust
between the police and the administrative authorities was needed in order to enhance
cooperation required for uncovering illegal operations.
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THEME #3: CARROTS AND STICKS 193
THEME #3
CARROTS AND STICKS
abiHUtUS^ 3ny stuccef ful environmental compliance and enforcement program is its
ability to deliver incentives for compliance and consequences - or disincentives-to violators
comZS' ^T tf e' ^ 3nd aPPr°Priate mamer in reiation to ^SS^^ffS
D™^? ^
SuS; n h f SeaJ, f°r thS right mix and type of carrots and sticks ^ diffeTerrt
.moortanf anH m'T* r K maintai" comP|iance behav'°r. Both carrots and sticks Ire
Sred tS Z± 6tWhen ,they 3re US6d t09ether and in the rj9ht balance- This theme
explored the development, implementation and results of different "carrot and stick"
tTuS^
Theme #3 Workshops:
3 A Structuring Incentives for Private Sector Compliance
3 B Environmental Crimes and Criminal Enforcement
3 C Citizen Enforcement
3 D Structuring Financial Consequences in Enforcement- Penalty
Policies, Recovery of Damages, Recovery of Economic Benefit of
Non-Compliance
3 E Role of Negotiation in Enforcement
3 F Administrative Enforcement Mechanisms: Getting Authority and
Making It Work
3 G Compliance Schedules and Action Plans: Content, Enforceability and
Use in Compliance and Enforcement
1 . Summary of Theme #3 Panel Discussion, Moderator: H rova-
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194 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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THEME #3 PANEL DISCUSSION: CARROTS AND STICKS 195
SUMMARY OF THEME #3 PANEL DISCUSSION: CARROTS AND STICKS
Moderator: Helena Cizkova
Rapporteur: Jo Gerardu
1 INTRODUCTION
to deliVerTnSv^SSrTirrnmemal 'Ompliance and enforcement program has the ability
fair 2nd I™ f forcomP|iance and consequences to violations in a timely, predictable
m L I H f Pprop/iate manner- The environmental enforcement programs search for the right
sticks- Both are important and most effective '
PRESENTATIONS
sticks IngMtxi^f'H [hP°frted ab°UJ the Way MeXiC° balanced between carrats and
sticKs in 1988, Mexico had the framework for prevention but a weak legislation In 1995
f°EnVir0nment (PROFEPA) was created that was responSS regu.S
^?^^ f°r Water TWS means more than 28'000 ™usW™
pd h 'mpa-Ct r"the environment- The balance between carrots and sticks
Th« L T ?•3 Venficatlon pr°9ram that can lead to sanctions and a voluntary audit
nn vtenficat.on program can lead to sanctions on closure of the facility by PROFEPA
without going to court. In 5 years 2,300 closures were reported but the oercentaae of
oroaLm h"" 7"** ^^ ^^ fr°m 2°% in 1 "2 to ^^^^S^^Si
SSS±L« t!?^ 3n '"f by an independent audit°n the company has to fuM a
Tte S?^t« v are,n0t regUlated by Mexic° but are internationally (mostly EPA).
^ri?,ct • V ,? Afnu 3 Plan' After fulfilling the action Plan tne company gets a "clean
mdustry facmty. At the moment almost 900 facilities are in the program. At the end of 1997
157 facHJies have gotten the certificate with considerable resultsfor the envLnment
most oollut nnS aW Kab.h°T* reP°rted that in the end of 1989 a list was created w«h the
Se ooTu 1 bS r y Tvf '"spectorate- Forei9n inves«ng companies were asking about
me pollution by facilities. The Inspectorate started a training program created with the U S
fhlTT^1 Pr°teCti0n A9ency' With this knowled9e the facilftie^Twere nsplctec^ Wifh
MlrvTnvlS690'13 ^ W!th thS fadlitieS Started: the penalties were the st£ but ifthe
^neaoSZ LnZrT^r ^ ™M b& environmentally friendly, the penalties could
the end SS £ 11 ? ! "^ Inspection ** techniques were not there and in use
me end would be a 4 times higher penalty.
-omn,ia Ms ,C°nnie Musgrove reported about civil enforcement having its limits. It can realize
S nceniT"^' "! ^t*™* S°metimeS hard to prove' ™e USEPA developed
3 ner incentives (carrots and sticks) as compliance assistance programs Facilities can
Sfa"VxedaVnd±r V?P^* "T ^ M b°rders and <*^f penalties
™v to S..M pub"sthed; Econom«c benefits are recovered. Those who do not participate
Srh' en°rmTt- '^ successful compliance assistance programs
m i.c^.micalhhazardrfPorting act, nationwide; 2) multi-media compliance
w r ' Chlca9°: 3)rock crushing operations under the Clean Air Act
. V.olat.ons were published widely and warning letters were sent and companies'
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196 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
reported their violations. The companies that did not report were subject to enforcement
activities and high penalties. The lesson learned were that you need strong enforcement
and in limited time.
Mr. Antonio Oposa, Jr. reported about the loss of Philippine forests despite the
appropriate environmental laws. Nobody was jailed for illegal logging. A special team was
formed of participants of the Department of Justice, the Department of Environment and the
National Bureau of Investigation. The team had an opportunity in 1992 when a saw mill was
discovered with illegal logging behind an official facility; there were armed guards. Together
with the enforcement activity, the prosecutor was brought to the saw mill and in three hours
those responsible were in jail immediately. This was the first time that illegal logging was
punished. This resulted in special prosecutions for illegal logging; the results were zero
convictions in 1992 to June 1995 with 185 convictions. But this will not restore the illegal
logged trees. Oposa propose a needle instead of a stick because a needle is used swift,
painful and public as deterrence. Don't be nice for people that operate outside legal limits,'
but make sure that humanity has its thinking role as part of us here.
3 DISCUSSION
In response to a question Mr. Azuela stated that for Mexico the conclusion was that
voluntary programs do not work without enforcement. Ms. Musgrove explained that if there
were no economic benefits by violating the law the penalty could be waived to zero.
4 CONCLUSION
Ms. Helena Cizkova concluded that the questions remains what is the carrot and
the stick. The local situation will be very important for the answer to this question. What
will work in one place or one situation may not in another situation. But always make sure
you have the right balances of carrots and sticks or candies and needles. In the presentation
there were examples of the ways one can develop carrots and sticks given the specific
situation.
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WORKSHOP 3A: STRUCTURING INCENTIVESFOR PRIVATE SECTOR COMPLIANCE 197
WORKSHOP 3A
STRUCTURING INCENTIVES FOR PRIVATE SECTOR
COMPLIANCE
~rf exami"f the ^entives countries are using to promote compliance, and
mproved env,ronmental performance generally and also explore the relationship between
Sn noC?, r%°^,Ca7tS 3nd the threat °f the ^cement stick. It also examined the
ISST9 H fh d1evtel°Pment of environmental audits and environmental management
ItaiSS,* P relatlon'°the International Standards Organization's Series iS
Standards, the European Umon's eco-management and audit regulation or other schemes
?v^m <, He been aSkSd t0 reSp°nd t0 ComPar|y run environmental management
systems. Some have responded with explicit policies which encourage such advances but
which maintain a traditional line between an independent regulatory and enforcement roS
advfcat no HhmSff f!"°mfprivate Sector and marketplace initiatives while others a e
worSn9^ 9 ."I'6! fr°m 9°vernment enforcement to the marketplace. The
S2™ ^ ^ PaperS and worksh°P discussion summaries from prior
conferences on both promoting voluntary compliance and economic incentives
3. Summary of Workshop Discussion, Facilitators: K. Boekel M Dooley
H. Laing, M. de Nevers; Rapporteurs: R. Cheatham, N. Peaple ' 199
4. Structuring Incentives for Private Sector Compliance: Pilot Projects on Audits
and Links Between IS014000 Series. Boehm-Amtmann, Audrey 207
\V l2J°r Work!lhop 3A and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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198 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 3A STRUCTURING INCENTIVES FOR PRIVATE SECTOR COMPLIANCE 199
STRUCTURING INCENTIVES
Facilitators: Workshop 3A: Harley Laing, Kees Boekel
Workshop 3AA: Marlen Dooley, Michele de Nevers
Rapporteurs: Workshop 3A: Nigel Peaple
Workshop 3AA: Reggie Cheatham
GOALS
Discussions addressed the following objectives and issues.
• Approaches countries have employed to motivate compliance through positive
incentives; what is known about how effective such approaches are and factors
contributing to success or failure of compliance incentive schemes.
How countries link compliance incentives and enforcement sanctions:
- Whether and what successes of programs designed to promote compliance
can be achieved independently or in relation to inspection and enforcement
response.
- Successful relationships between incentives, technical assistance
inspections, and enforcement response.
- How enforcement response policies might be designed to promote
compliance as well as deter violations.
How government compliance and enforcement programs are responding to
regulated sources which adopt Environmental Management Systems either
certified for conformity with ISO 14001 or other EMS standards:
- What is known about compliance status and ability to self-monitor correct
and prevent violations of entities which adopt such systems versus those
who do not.
- Potential effectiveness of the for International Standards Organization's
international environmental management standards (ISO 14000 series) in
promoting compliance.
- Potential for or limitations on the opportunity for official government
recognition in efforts to promote compliance and take enforcement
response.
How to maintain accountability for performance within compliance incentive
schemes; how to account for their effectiveness and results and how success
might be defined .
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200 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
1 INTRODUCTION
Effective environmental compliance and enforcement programs should include an
ability to deliver incentives for compliance arid consequences to violators in a predictable
and fair manner. Such "carrots and sticks" are most effective when they are used together
and in the right balance.
The issue of structuring incentives has been a continued discussion topic from
previous conferences and the papers for the Fifth International Conference on Compliance
and Enforcement continue to demonstrate various efforts by countries to implement such
programs. With the above mentioned goals, workshop participants focused on three major
areas: 1) ISO 14001 or other EMS standards; 2) Approaches to Motivate Compliance; and
3) Technical Assistance. These discussions continued to explore the fragile balance between
incentive programs and enforcement.
2 PAPERS
Several authors developed new topic papers associated with structuring incentives
for private sector compliance. The following are presented in the Fifth International
Conference on Environmental Compliance and Enforcement Proceedings, Volume 1:
Enforcement and Encouragement; An Investigation in the Brick and Roofing
tile Industry, Schoenmakers, John M.J.
A Socio-Cultural Approach to Environmental Law Compliance; A Philippine
Scenario, Oposa, Antonio A., Jr.
Enforcement Versus Voluntary Compliance: An Examination of the Strategic
Enforcement Initiatives Implemented by the Pacific and Yukon Regional Office
of Environment Canada 1983 to 1998, Krahn, Peter K.
Industrial Estate Authority of Thailand Strategy for Environmental Compliance,
Homchean, Kasemsri.
• Penalty Cap Programs, Schaeffer, Eric.
3 DISCUSSION SUMMARY: WORKSHOP 3A
3.1 Approaches to motivate compliance through positive incentives; effectiveness
factors that contribute to success of failure.
Compliance incentive schemes are now widely used by environmental regulators
throughout the world. There are many different sorts of incentive: economic incentives; legal
incentives; regulatory incentives and public relations incentives.
• Economic Incentives:
- Romanian industries are given tax credits for investments in environmental
technologies.
- The Inter-American Development Bank provides loans for companies
wishing to make environmental investments.
- Malawi has recently introduced a law that provides for general economic
investments for compliance.
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WORKSHOP SUMMARY: 3A STRUCTURING INCENTIVES FOR PRIVATE SECTOR COMPLIANCE 201
• Legal Incentives
In the USA, companies are sometimes exempted from criminal prosecution
in cases wh*r« th«w admit to non-detected
Regulatory Incentives
- In several countries, extensions to the license period are allowed for
companies with a good compliance record, also, it is common for fewer
inspections to be carried out on such companies, thereby allowing more
time for regulators to focus on non-compliant industry.
- In Peru, industry is encouraged by regulators to adopt environmental
management systems in the understanding that these will assist the
regulated community to improve their performance.
Public Relations Incentives
- In the USA, the Sonoma Green Business award scheme is used for
ndustries meeting or exceeding a selected series of key environmental
regulations, companies with the award can use it in their advertisina
cooperat.on with the press has encouraged companies to achieve
compliance in order to benefit from the positive publicity, the scheme has
SLS ^ '"f UranCe C°StS for comPanies in receipt of the award and
enabled the regulator to reduce inspection frequency.
- Similarly, in Canada, regulators have established a comprehensive scoring
system for each industry sector and facility, this information is available on
h« »n ' °nS conse
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202 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.2 Successful relationships between incentives, technical assistance, inspections,
and enforcement responses
To make incentives successful, it is important for regulators to provide technical
assistance, while at the same time, continuing to monitor the state of compliance through
inspections and other means. However, the use of incentives must be backed up by a clear
understanding on the part of the regulator and of the regulated that non-compliance will lead
to appropriate enforcement action.
An example of a successful relationship between incentives, technical assistance,
inspection and enforcement can be found in the operation of the Canadian scoring system
on the softwood logging industry. Having established a public relations incentive scheme (the
award scheme described under section 3.1), the regulator was asked by industry's leading
environmental players, to provide technical advice on how they could improve their scored
and even on how to achieve the maximum score. Was it time for the regulator to pack his
bags and move on to the next industry? Certainly not, continued inspection and monitoring
revealed that after a period of time, compliance began to fall. Tough enforcement action on
the offenders was taken in order to send an unequivocal message to the regulated community
that no back-sliding would be tolerated.
3.3 Government responses to Environmental Management Systems certified for
conformity with ISO 14001 or other EMS standards
. Although, in some countries, regulators are considering whether it would be sensible
to adopt different enforcement strategies for companies using environmental management
systems, to date, regulators have not done so because such systems do not provide a
guarantee that accredited companies are not polluting the environment.
Of the two systems under discussion, ISO 14001 and EMAS (the EC Eco-
Management and Audit Scheme), it was agreed that as the former only requires the
establishment of environmental management processes, it appears to be less useful to
regulators than the latter which also requires some measurement of actual environmental
performance.
3.4 Conclusion
There are many different types of compliance incentive and they are becoming
increasingly used by environmental regulators around the world. However, to ensure their
success, regulators need to target them on the needs of the regulated community, to provide
technical assistance in order to help the community benefit from the incentives offered, and
to carefully monitor the state of compliance. Where non-compliance does occur within an
incentive scheme, the regulator must be prepared to take firm and fair enforcement action.
Although, in some countries, regulators are considering whether it would be sensible
to adopt different enforcement strategies for companies using environmental management
systems, to date, regulators have not done so because such systems do not provide a
guarantee that accredited companies are not polluting the environment.
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WORKSHOP SUMMARY: 3A STRUCTURING INCENTIVES FOR PRIVATE SECTOR COMPLIANCE 203
4 DISCUSSION SUMMARY: WORKSHOP 3AA
Workshop participants first identified items they would explore with regard to
structuring incentives. Several participants wanted to identify the balance between
enforcement and incentives and potential limits associated with each activity in creating
behavior change in environmental compliance. Some recognized that traditional command
and control approaches were ineffective in environments attempting to attract economic
development and wanted to identify incentives that could both encourage economic
expansion and environmental protection. Command and control approaches were identified
Chan e promoting incentives or helping in establishing motivators for positive behavior
Participants questioned the definition of "incentive" and believed that defining
incentives only as positive was too narrow. They identified both positive and negative activities
as definitional boundaries for incentives. For example, tax or fee reductions may be
considered a positive incentive for the regulated community. While public release of
information about poor environmental performance would be viewed by the regulated
community as negative, it could be an incentive for poor performers to improve behavior or
good performers to maintain their performance.
4.1 IS014001 and other EMS Standards
In analyzing ISO 14001 and other EMS standards, participants determined that
such standards only put a management system in place. This system, when properly
implemented, allows facility managers to control the various aspects of environmental
management through the identification of environmental issues and thereby be more aware
of environmental issues at the facility. In addition by identifying the issues, facility managers
can set goals and objectives along with implementation activities to achieve these goals and
objectives. The measurement of these activities and the associated success or failure
enables facility managers the ability to make adjustments with an emphasis on continuous
improvement. Such improvements can potentially allow facilities to go beyond compliance
standards.
Workshop participants believed that IS014001 and other EMS standard have several
helpful aspects. In addition to fostering beyond compliance behavior, these standards can
create new company cultures and awareness of environmental issues, influence the
environmental performance of other companies doing business with a company utilizing such
standards (e.g. supply chain must meet same standards in order to do business) and create
economic benefits such as insurance premium relief, favorable treatment by financial
institutions, or investor confidence.
All participants agreed that ISO 14001 or other EMS standards will not produce or
ensure compliance with environmental standards by itself. However, it was agreed that if
implemented successfully, an EMS should bring the facility into compliance with
.environmental laws. The need for performance data was identified, and in developing countries
participants believe that technical assistance in implementing these standards was a
significant need. Several participants identified experiments and projects that are currently
working to assess this performance. If this performance is indeed acceptable, participants
believe that ISO 14001 or other EMS standards could be used as a component for positively
rating environmental performance of facilities and potentially produce public recognition
programs or reduced inspection frequency at high performance facilities
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204 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.2 Approaches to Motivate Compliance
Based on the modified definition of incentive, workshop participants explored various
approaches that might motivate compliance with environmental requirements. They are:
Publicizing enforcement and compliance data on both good and bad
companies.
Press releases for enforcement actions pursued against bad actors.
Governmental economic support for good companies and facilities.
Reduced liability from past activities at sites purchased for new usage.
• Favorable treatment from financial institutions in securing loans.
Certificates of compliance recognizing good environmental performance.
Voluntary agreements which guarantee no future regulatory requirements if
agreement fulfilled.
Tax relief.
Environmental fees that stimulate compliance or a desired behavior change.
Amnesty programs.
Reduced penalties for companies that conduct audits and disclose violations.
Although workshop participants did not discuss the feasibility of the above
mentioned approaches, most indicated that the implementation of these approaches would
require a shift of resources by the regulator to be effective. Voluntary agreements must be
constructed to promote a desired behavior, but must retain a protective provision for
agreements that are not fulfilled. Many also felt that some level of technical assistance is
needed regardless of whether an incentive is utilized or not.
4.3 Technical Assistance
Workshop participants agreed that there is a need for technical assistance, but were
very concerned with the interaction between government advice and assistance verses
enforcement. The group identified the following definitional boundaries, potential resources,
and practices that may be considered:
• Purpose of assistance must be clear to the facility.
Assistance should consist of general information only.
Assistance should be requirement based and oriented toward interpretation
and clarification of requirements.
Use of public educational institutions to provide third party assistance.
Hiring retired professional experts as consultants and advisors.
Establishment of business clubs of like facilities to discuss common issues
and solutions.
• Develop mentoring arrangements.
Promote technical transfer of technology and best practices.
Several participants did not believe that enforcement personnel should provide
technical assistance due to possible conflict of interest, resource limitations, and the
abundance of other private and NGO resources. Enforcement personnel could provide
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WORKSHOP SUMMARY: 3A STRUCTURING INCENTIVESFOR PRIVATE SECTOR COMPLIANCE 205
technical assistance on regulatory issues and interpretations. One participant identified the
need to aaeiet non-regulated entities that fall below the limits required oTrtSsTmS
compliance standards, but still contribute an environmental impact
4.4 Conclusion
Wo*sh°P Partlc'Pants analyzed the complexities and concerns posed by incentive
tmrt , enf°rcement- Focusin3 °" 'SO 14001 and other EMS standards, approaches
t motivate > compliance, and technical assistance clearly demonstrated the continuing
to eSth t?h9 T df Vel?-Ped and devel°ping country environmental programs In order
'hmf 6 °bjeCtlVe °f environmen^' compliance and protection, workshop
, successful demonstration and measurement will continue to allow
of
,
far , successful demonstration and measurement will continue to allow
for the exp oration of create approaches to compliance incentives. The participants believe
be d^npH^ Can ^ b°th faV°rable °r unfavorable t° t"e regulated corn'mSty but shSd
bhaftechn?c^ T^T excellence,in environmental performance. They also identified
d^linnm f L , ,e 'S a C0ntmuin9 need, but care must be exercised in the
development, delivery, and scope of such assistance.
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206 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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BOEHM-AMTMANN, AUDREY 207
STRUCTURING INCENTIVES FOR PRIVATE SECTOR COMPLIANCE-
PILOT PROJECTS ON AUDITS AND LINKS BETWEEN ISO 14000 SERIES
AND EM AS
BOEHM-AMTMANN, AUDREY
Bavarian State Ministry for State Development and Environmental Affairs
Rosenkavalierplatz,2, Munich, Bavaria, D-81925 Germany
SUMMARY
«f c* * September 15,1997, saw the start of two pilot projects of the Bavarian State Ministry
of State Development and Environmental Affairs involving transnational corporations that are
members of the Environmental Pact of Bavaria". We are conducting a pilot project with the
BMW corporation at its Spartanburg plant in South Carolina and one with the Siemens
cenE 'ion n"f FhaVana-- ThetSU?eCt °f these Pilot Pr°i«:ts is the combined validation and
S!?Wn? of'h,e Part'cipant "idustnal locations in accordance with the EMAS Regulation
ISO 4001 and ISO 9000. The aim is to examine and evaluate the widened scope of a
substi ution (not deregulation) of environmental regulatory law and other sector-specific
regulatory laws resu ting from this procedure, for example, the law governing shop and factory
mspecton, occupational safety law, including the law governing the statutory industrial
mS fh"3, concerning accident prevention, the law governing hazardous
materials, the law governing preventive maintenance, the law of the insurance industry etc
This paper describes the pilots, how they developed and their status. "
1 INTRODUCTION
~«4- . Thetc°a'ition government of the Federal Republic of Germany has agreed that a
cardinal contribution of contemporary politics is to make government "leaner" and to prune
the bureaucracy. In consequence, government activity in the normative, administrative and
judicial domain is to be reduced to the bare essentials. On July 18,1995, the Federal German
™rt8- TH t0 S6t UP 3 "non-administrative, independent lean State committee of
K?,Pth K I committee was constituted on September 21,1995. The resolutions adopted
KlrfK °T,fXPc:e? "the Lean State Advisory Council -were submitted to Chancellor
Helmut Koh . The Federal Chancellery has put the Federal Ministry of the Interior in charge
of coordinating the implementation of these resolutions. The President of the Federal
Semen,^e^oS.' "" '"**"' '^ *™ '^^ * * f°r the departments to
n*«* -°»n fNovember 29' 1996'the advisory council adopted a resolution on "Reinforcing
private initiative: eco-audits and the means of transferring them to areas other than that of
the environment." Sections 2 and 5 state the following:
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208 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Section 2. "On the basis of adhering to the law of the environment
with the methodical approach of the functional equivalency, with a voluntary
effort on the part of companies and sovereign activity, it is possible to reduce
the burden placed on the companies and authorities in the areas of
supervision, information and duties to report in a way which is legally
unproblematic.
Restricting certain state supervisory or approval procedures in such
a way is justified from the point of view of the prohibition of excess which is
contained in the rule of law, which places state competencies or instruments
of intervention under the reservation that such measures themselves must
themselves be necessary and proportionate. If a private individual has
demonstrated by possessing his or her own qualification (under professional
law) or by carrying out certain more general preventive measures, for instance
in his or her own company, that one may expect certain ecological standards
to be maintained in general terms, it is not justified, particularly in the light
of the prohibition of excess, to subject such entrepreneurs or traders, or the
projects which they operate, to additional (project) controls. In this sense,
the eco-audit is a significant step in a direction which is as correct as it is
promising for the future - a course which one should also set outside of the
area of the law of environmental protection."
Section 5. "In accordance with Articles 12 and 19 of the EMAS
Regulation, it is possible to include international standards in the EMAS
system of the EU after their recognition. With regard to the fundamental
differences between the draft ISO standards 14001 on the one hand and the
EC's EMAS Regulation on the other, and from the point of view of the
requirements of the international competitiveness of the German economy,
there is an urgent need to prepare a model to link the two systems. It would
make sense once the model has been prepared to test it in practice in a pilot
project at Lander level, and to involve the competent authorities, as well as
to use it for inclusion of the system in accordance with ISO 9000 et seq."
The advisory council identifies itself with the guidelines of the Environmental Pact
of Bavaria of October 23, 1995, a joint approach to protecting the environment, through a
voluntary agreement between Bavarian industry and the Bavarian state government aimed
at greater protection of the environment. On the other hand, it issues a high-priority
recommendation for action, which is observed by the Bavarian State Ministry for State
Development and Environmental Affairs in continuing the initiatives of the "Environmental Pact
of Bavaria." In the further development of the legal maxims for action established there:
Industry has long acknowledged the existence of the synergetic effects resulting from the
association between quality and environment management systems and the EMAS
Regulation - also known as "generic management systems" or "integrated quality assurance
and environment management" or "occupational health and risk management." These
synergies are now to be combined on the government side as well into a new, constitutionally
correct concept that conforms with stipulated EC legislation, relieves industry and
administration as a whole, and provides precise instructions for the enforcement agencies
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BOEHM-AMTMANN, AUDREY 209
on how this is to be carried out. Given ail the political statements in the spirit of UNCED
Agenda 21 and the "Shared Responsibility" doctrine of the EC's fifth Environmental Action
Program, it is high time to put an end to the hyperbolic and haphazard development of
corporate technical standardization at national (DIN), European (CEN) and international (ISO)
levels, the self-reliant regime of the EMAS Regulation and state regulatory law, and to bundle
all these functions.
2 THE MODEL OF SUBSTITUTION OF REGULATORY LAW IN THE
"ENVIRONMENTAL PACT OF BAVARIA"
The legal framework for a system that combines the above functions is a difficult one-
Article 1 Section 3 of the EMAS Regulation stipulates that "Existing EC and national
laws ortechmcal standards for environmental controls and the corporate obligations resulting
from these laws and standards remain unaffected by this system."
In this way, the EMAS system of the European Community, the national regulatory
law of the member states, and the regime of technical standards exist side by side as
unrelated entities. The EMAS Regulation received ultimate approval, albeit "with some
resignation" from the Federal Republic of Germany, by all accounts in full awareness of the
systematic inconsistencies in the history of that Regulation, but this cannot begin to explain
the fact that it articulated a broadly based option and an equally broadly based optimism
concerning the use of the EMAS Regulation for "deregulating" regulatory law.
2.1 Reconciling: Substantive Environmental Requirements with EMAS Approach
On July 19, 1995, the Bavarian Minister President Dr. Edmund Stoiber entitled his
government policy statement "Bavaria's Environmental Initiative: Cooperative Protection of
the Environment, Sustained Development, Ecological Prosperity." Addressing the Bavarian
State Parliament he referred to the negotiations, already under way, on the "Environmental
Pact of Bavaria" by citing, among other things, the guiding principle underlying the EMAS
Regulation:
" The more industrial companies are prepared to assume their own responsibility,
the more we want to free them from state control."
Article 83 of the German Basic Law states that it is the business of the Lander to
enact federal law in the way they choose - including directly effective stipulations of EC
secondary law like the EMAS Regulation.
The administration therefore interpreted the guiding principle cited in the government
policy statement of July 19, 1995, as a constitutionally correct approach to the solution,
belonging to the class of choice-of-law rules with respect to Article 1, Section 3, of the EMAS
Regulation. This was necessary in order to avoid the cumulation of the EMAS Regulation
and regulatory law, and to link these two systems. Expressed in the categories of German
Basic Law, the approach to the solution is based on the prohibition of excess, which places
state competencies or instruments of intervention under the reservation that such measures
themselves be necessary and proportionate. To that extent, there is full agreement with the
formulation of the Lean State Advisory Council. Of course this approach is also the result
of the principle of subsidiarity.
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210 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
As its next vital step in conjunction with the EMAS Regulation, the administration
introduced the term "substitution" of regulatory law in place of the term "deregulation" of
regulatory law. This was to avoid misleading associations that might suggest a lowering of
those material standards of protection defined by the German Basic Law and Article 130r
of the EC Treaty - after all it is precisely this point that the "Environmental Pact of Bavaria"
explicitly excludes. It makes it clear that the logic of this combined model resides in the
definition of the union of sets between the EMAS Regulation and regulatory law.
2.2 Role of Compliance and Government Enforcement Responsibilities
2.2.1 Requirements for a Compliance Audit
The EMAS Regulation states that the "observation of all relevant environmental
provisions" is a necessary condition for entry in the registry of industrial locations, Article
8, Section 4. The principles underlying this regulation, as well as Articles 2a and 3a of the
regulation, are aimed at the observation of all relevant environmental provisions. The official
English text reads:"... in addition to providing for compliance with all relevant regulatory
requirements regarding the environment" - hence the usual expression "compliance audit"
for an audit procedure of this type. The EC Commission has declared only this interpretation
as conforming with the obligations and not a so-called "system audit" which essentially
confines the audit to the corporate management system.
This compliance approach is the key to a "substitution" of regulatory law as such
through the voluntary fulfillment of the regulations of environment law in accordance with this
section of the article and the annexes to the Eco-Audit Regulation. It is an act for which the
legal entity in question is directly responsible, instead of one that is subjected to nationally
enforced environmental law. The only change is in the definition of the fulfillment of the
obligation, not, however, the obligation itself. This makes it clear that, in fact, it is not the
substantive "deregulation" of environmental law that is at issue here, but a partial privatization
of the enforcement of environmental law. This "magic" formula can resolve the dichotomy
involved in taking care of the industrial site and protecting the environment. Not last, this
approach makes an effective contribution to reducing the much lamented deficit in the national
enforcement system in the sphere of environmental law accompanied by the continued
downsizing of human resources.
2.2.2 The Principle of Functional Equivalency: Retaining Independent Government
Enforcement Role
This actual compliance with the regulatory requirements as the performer's own
responsibility does not automatically lead, however, to a corresponding withdrawal and
relinquishment on the part of the enforcement agencies. According to Article 4, Section 5,
of the EMAS Regulation, state environmental control remains unaffected. Contrary to the
certification of product safety, for example, the environmental assessment attested by an
independent environmental auditor does not a priori imply that the respective company will
permanently comply with all relevant provisions.
In order to keep a check on the problematic nature of parallel controls arising from
this, we defined the principle of "functional equivalency" in cooperation with the Federal
Ministry of the Environment. In November 1994, during the German Presidency of the EC
Council, we discussed it at a plenary meeting in Munich of the IMPEL network of enforcement
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BOEHM-AMTMANN, AUDREY 211
officials of the member states (EU Network for the Implementation and Enforcement of
Environmental Law). Its title was "The Relationship between Eco-Audit and Regulatory
Controls." The basic outcome of the Munich IMPEL Plenary Meeting is as follows:
The substitution of the tasks of the enforcement agencies through voluntary
corporate controls is only possible if the respective instrument of the EMAS Regulation and
regulatory law is equivalent as regards its aims and the effectiveness of its controls, that is
if it is functionally and substantially equivalent. "Functional equivalency" works on this
assumption - to distinguish the identity of two systems. These aims of regulatory law and
of the EMAS Regulation are ascertained by interpreting the wording and the purpose of the
provisions, i.e. by a comparison of the systems.
The term "functional equivalency," which originally comes from the structural-
functionalist system theory of the American sociologist Parsons in the fifties, is especially
apposite, because, although widely ignored in European literature so far, its central idea can
be applied to European law and is immanent to the principle of mutual recognition derived
from Article 30 of the EC Treaty. 'On the one hand, this is also based on the principle of Article
3b, Section 3, of the EC Treaty that the measures have to be proportionate and not excessive.
On the other hand, an equivalency clause does not mean amending the legal situation to
fit in with Community law, and is therefore neutral to competition. An equivalency clause is
also different from an outline provision, because it requires the determination of factual
equivalency by the competent enforcement official from case to case.
It has been assumed that for the entire monitoring sphere, there exists a reciprocal
functional equivalency between regulatory law and the catalog of obligations of the EMAS
Regulation, i.e. for the subsequent official controls (ex post) of the industrial plants at their
respective locations and the companies' obligations to provide information (reporting and
documentation) in support of these control mechanisms.
Given this assumption, however, preventive (ex ante) authorization provisions for new
plants or modifications to plants are not functionally equivalent to the Eco-Audit Regulation
This fact, however, does not exclude the possibility of granting an exemption from certain
types of audits, for example, the maintenance of the best available technologies (BAT), with
the aim of "dove-tailing" Eco-Audit and authorization procedures.
The result is that the authorities can dispense with the respective requirements of
regulatory law in cases of companies that have successfully participated in the system and
have been entered in the registry of industrial locations.
3 PRACTICAL TESTING OFTHE MODEL AND ITS INCORPORATION INTO
THE SYSTEM OF ENFORCEMENT
From May to August 1995, the Association of the Chemical Industry - Bavarian
Section - and the Bavarian State Ministry for State Development and Environmental Affairs
worked together as members of a joint steering committee on the theoretical foundations
of the project. In a so-called substitution catalog the pertinent provisions of federal and state
law (emissions control, water, waste) were compared to the corresponding regulations from
the body and annexes of the EMAS Regulation. The 84-page-long list refers to reporting and
documentation, control and surveillance, as well as the authorization procedure. This catalog
has legal status in the Free State of Bavaria. In order to ensure a standardized enforcement
system we worked out appropriate administrative rules for the so-called lower-ranking
enforcement bodies, thus opening up the Federal emissions control act, the law concerning
water, and the federal act on recycling and waste to the EMAS System.
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212 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 MONITORING VOLUNTARILY IMPOSED CONTROLS IN THE .PRIVATE
SECTOR-.THE KEY ROLE OFTHE ENVIRONMENTAL AUDITOR ANDTHE
ULTIMATE CONSTITUTIONAL RESPONSIBILITY OFTHE STATE.
The substitutions described above presuppose logically that only those persons can
be licensed as auditors whose special skills (i.e. impartiality and reliability) guarantee a
uniform interpretation and application of substantive environmental law. On account of these
high demands, the human resources in this sphere must also be equivalent to those of the
government's surveillance system. Another issue, of course, is the depth to which the audit
is to be carried out by the environmental auditor as well as the sampling, checklist, and
plausibility parameters.
5 SUBSTANTIVE FURTHER DEVELOPMENT OFTHE MODEL OF
SUBSTITUTION OF REGULATORY LAW IN ACCORDANCEWITHTHE
RESOLUTION OFTHE LEAN STATE ADVISORY COUNCIL OF NOVEMBER
29,1996
Currently the Bavarian State Ministry for State Development and Environmental
Affairs is preparing a legislative initiative that aims at including opening clauses in federal
environmental law within a new "Umweltgesetzbuch" (Federal Legislation Book in the field
of Environment) to accommodate the EMAS. This is founded on the practical trials already
described and the constitutional conformity of the substitution model in the "Environmental
Pact of Bavaria" and complies with further pledges to industry made there. A further major
step in the overall process has meanwhile been reached with the acceptance on principle
of the "Environmental Pact of Bavaria" by the Directorate General XI of the European
Commission and the basic prospect of an opening clause held out to us by the European
Commission as part of its revision of the EMAS regulation this year. We intend to come to
a good end on this behalf during the German presidency in 1999,
The above mentioned advance in the process of legitimization at the Lander, federal
and EC Commission levels was reason and warrant for the decision described above to also
tackle the pilot project at an international level with BMW in Spartanburg in the interest of
globalizing the ecological conditions for industrial locations.
This is the reason and the basis for the joint pilot project of the Siemens AG and
the Bavarian State Ministry for State Development and Environmental Affairs which is aimed
at "testing management systems and plant audits for environmental protection, plant safety,
and occupational safety with a view to strengthening companies' own responsibility in
complying with regulatory requirements, and to replacing regulatory audits at plant level with
compliance and systems audits."
In particular, the common objectives are:
the further improvement of environmental protection, plant safety, and
occupational safety;
the testing and implementing of a management system interlinked as far as
possible, and of a holistic auditing system for environmental protection, plant
safety, and occupational safety, with particular regard to measures influencing
behavior, and to conditions at the plant;
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BOEHM-AMTMANN, AUDREY 213
• the testing of a documentation system enabling the auditing, by the company
itself and regulatory authorities, of the respective status of environmental
protection, plant safety, and occupational safety;
substituting the direct regulatory audit performed by government agencies for
a company self-audit that has been agreed with regulatory authorities is
carried out on the company's own responsibility, and is perpetuated- and for
an official systems and documentation audit;
providing an estimate of the potential and actual benefits of the introduction
of management and auditing systems for environmental protection plant
safety, and occupational safety (using, for instance, data indicating a decline
in the number of work-related accidents and illnesses, improvement in
production quality and production quantity, and improvement in the efficiency
of regulatory bodies); y
developing suggestions for creating the regulatory framework for collaboration
between companies, government agencies, and casualty insurers in
accordance with the constitutional supervisory function of the state.
The experience gained within the framework of the pilot project will be documented
in a joint final report which is to contain recommendations for companies of other industries
and sizes as well. In this context, the final report is to mention possibilities of substituting
monitoring functions on the part of the authorities while maintaining the constitutional
supervisory function of the state, as well as suggestions with regard to deregulating the body
or rules and regulations.
Within the meaning of the Agenda 21, chapter 8, "The Integration of Environmental
and Development Objectives into Decision-Making," the results of this pilot project, together
with the results of the pilot project conducted with the BMW AG in Spartanburg are to be
incorporated into the proposal for a national program made to the Federal Government
including the subjects of occupational safety and plant safety.
6 CONCLUSION
Our ultimate goal is to establish this methodological approach - i.e.. of substituting
regulatory law in the sectors of the environment, safety, and health for integrated
management -with the Committee of Sustainable Development, CSD, as well as within the
framework of the United Nations Environmental Program, UNEP.
I ask for your active support. To quote a Chinese circus motto: "May we succeed
with our exercise."
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214 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
ADDENDUM:THE LEGALTERMS OF REFERENCE FORTHE PILOT PROJECT
However prolific the literature on the subjects of the EMAS Regulation and ISO
standards already is, the academic argument relating to this concept of environmental-
political control is only just beginning.
To do justice to the tasks set and to the way it sees itself - incidentally based on
the broad and bitter experience of having to make conflicting concepts suitable ex post for
purposes of enforcement - the Bavarian administration intends to take part in this discussion
ex ante and at a practical level, backed by the mandate provided by the specifications of the
political guidelines. The "Environmental Pact of Bavaria" has been shown to be the right
method for subjecting control concepts to practical testing using attendant pilot projects and
the enlistment of locally and technically competent authorities.
1 ARTICLE 12 SECTION 1A OFTHE EMAS REGULATION
In its official German version in the Official Journal of the European
Communities, the language of Article 12 Section 1 a of the EMAS Regulation (which also
contains a German printing error: "diese Verordnung" instead of "dieser Verordnung") is, on
the whole, poorly formulated. The meaning of the German text becomes unequivocal only
when compared with the official English version. But, after all, the legal classification is not
exactly simple.
The regulation stipulates that national, European or international "standards for
environmental management systems" may replace the provisions of the EMAS Regulation.
A condition for this is that the locations that use them "have received, after suitable
certification procedures, confirmation to the effect that they fulfill these standards." These
"standards for environmental management" are different standards specifically related to
organization, i.e. related to EMAS. By "technical standards" within the meaning of Article
1, Section 3, of the EMAS Regulation, on the other hand, we are to understand the standards
of a subordinate set of rules in the monitoring domain already mentioned.
2 LEGAL EVALUATION OFTHE REPLACEMENT OFTHE EMAS SYSTEM BY
STANDARDS FOR ENVIRONMENTAL MANAGEMENT
The standards in the context of Article, 12 Section 1a, of the EMAS Regulation are
not supplemental but substitutive. To put it another way: Article 12, Section 1a, creates a
compliance fiction in terms of EC law - also in favor of so-called low or sub-standards, i.e.
those standards which are not qualitatively consistent with the contents of the EMAS
Regulation.
3 THE DECISION OFTHE EUROPEAN COMMISSION TO RECOGNIZE ISO
14001: EVALUATION
Just like the EMAS Regulation, even if the management structure is different, the
international standard ISO 14001 imposes requirements on corporate environmental
management systems and environmental audits. It is not the job of the authorized
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BOEHM-AMTMANN, AUDREY 215
environmental auditor _to check certificates within the meaning of Article 12, Section 1a, of
the EMAS Regulation if ISO 14001 is applied; he must rather use them as the basis for the
company audit.
On April 16, 1997, the European Commission decided to recognize ISO 14001, as
well as the certification procedures as part of the environmental audit. The text of this
resolution defines the extent to which ISO standard 14001 corresponds with the demands
of the EMAS Regulation.
Both systems have in common that participation is optional. Both systems
establish an environmental management and an environmental plant-audit system. To that
extent, both systems compete with each other. There are, however, several differences
between ISO 14001 and the EMAS Regulation. In total, the contents of the ISO 14000
standard were considered to be less sophisticated. Aside from the much wider scope of
applications of ISO 14001, a further difference lies particularly in the lack of elements having
an effect on the outside. Under ISO 14001, neither the preparation nor the publication of an
environmental statement is required. There is neither an audit by an environmental expert
nor any official registration of a site by registration authorities. While under the EMAS
Regulation the state has an indirect influence on validation through the admission of
environmental experts, and the EMAS hence becomes an instrument of the state-supervised
self-regulation of companies, this element of at least indirect state control is missing
completely in IS014001. Furthermore, IS014001 does not contain any obligation to achieve
an actual, continuous improvement in corporate environmental protection. Neither is there
any obligation to conduct compliance audits. ISO 14001 hence lacks essential elements
which in the EMAS Regulation bring about dynamic, pro-active corporate environmental
protection. The effect of this is even intensified by the fact that ISO 14001, in contrast to
the EMAS Regulation, does not provide for regular inspections. Therefore, it is fair to say
that the requirements of ISO 14001 fall considerably behind those of the EMAS Regulation.
Hence, the standard and the EMAS Regulation are not equivalent to each other. This
statement is not intended to call into question the internal benefits of establishing an
environmental management system under ISO 14001. In the opinion of the Environmental
Council, however, the fact that essential elements are missing compared to the EMAS
Regulation means that ISO 14001 cannot be used to justify measures of deregulation and
substitution. The Environmental Council is in favor of the EMAS Regulation because it makes
greater demands in terms of contents, and may hence serve as the basis for a strategy of
deregulation.
The resolution - albeit open to many interpretations - identifies the approach of the
EMAS Regulation, which relates directly to an improvement of corporate environmental
protection as distinct from the system-related approach of ISO 14001. So, all in all, it is only
possible to speak of a partial recognition.
4 THE DECISION OFTHE EUROPEAN COMMISSION TO RECOGNIZE ISO
14001: CONCLUSIONS
Even so, companies may now link the two systems. This has the following legal
basis:
There is no disputing that, after prior ISO 14001 certification, a subsequent EMAS
procedure has only to check some further ..trivialities" - which are defined by the resolution
mentioned above - in order to be eligible for registration. The existence of an ISO 14 001
certificate therefore covers a certain portion — and especially the environmental management
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216 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT-
portion - of the EMAS procedure, thus obviating the need for a further audit by the authorized
environmental auditor and therefore simplifying, accelerating and standardizing the EMAS
procedure. Recognition by the Commission can make ISO 14001 a component part of
EMAS in the sense of the replacement mechanism described, or, in other words, the ISO
certificate replaces part of the EMAS procedure.
The remaining parts of the EMAS procedure have to ensure the implementation of
the compliance audit, which, according to the prevailing view, does not take place under ISO
14001.
The consequence of these considerations is that if the sequence of these procedures
is reversed, then a prior EMAS procedure will include the ISO 14001 procedure. This means
that the authorized environmental auditor may, if requested (and paid for), also issue an ISO
14001 certificate as part of a successful EMAS validation process.
Along with EMAS - whether on its own, whether applied beforehand, or whether
facilitated by the prior ISO 14001 certificate , according to Article 1, Section 3, of the EMAS
Regulation, regulatory law and its subordinate set of norms remain principally unaffected.
So the application of the acknowledged ISO 14001 standard has a direct effect only on the
EMAS procedure, but not the application of both regulatory law and its technical standards
as specified by Article 1, Section 3, of the EMAS regulation.
With regard to the model of a combination of ISO 14000 and EMAS as described
above, and the possibilities to grant enforcement relief ("relaxations," "added value effects,"
"incentives"), the intention is of course to decide the competition between the two systems
in favor of both of them. It is true that otherwise ISO 14000 could succeed worldwide. A
legally unobjectionable approach to the "cooperative enforcement of regulatory law in the field
of the environment" would, however, not be opened up. I refer to Council Resolution No. 97-
05, dated June 12, 1997, of the governments of the United States of America, the United
Mexican States, and Canada, "Future Cooperation regarding Environmental Management
System and Compliance:"
Private voluntary efforts, such as the adoption of Environmental Management
Systems (EMSs) such as those based on the International Organization on Standardization's
Specification Standard 14 001 (ISO 14 001), may also foster improved environmental
compliance and sound environmental management and performance. ISO 14 001 is not,
however, a performance standard. Adoption of an EMS pursuant to ISO 14 001 does not
constitute or guarantee compliance with legal requirements and will not in any way prevent
the governments from taking enforcement action where appropriate.
In my view, one of the primary functions of this suggestion is an exact
operationalization of the guideline in Agenda 21 of the Conference on the Environment and
Development of the United Nations in Rio de Janeiro of June 1992. Marginal note 28 in chapter
30, "Strengthening the Role of the Private Sector," the wording of which was based on
proposals made by the International Chamber of Commerce, reads as follows:
"In conjunction with the private sector including transnational companies,
governments are to develop and implement a suitable combination of instruments of economic
policy and regulatory measures such as laws and regulations as well as norms...."
Now the obvious thing to do is to continue that combination model in a consistent
manner. To that extent too, chapter 30 of Agenda 21 contains a guideline - marginal note 26
reads:
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BOEHM-AMTMANN, AUDREY 217
"The private sector, including transnational companies, is to guarantee a product and
procedural management which, in terms of health, safety, and environmental protection, is
a responsible management. For this purpose, the private sector is to intensify self-auditing
using suitable codes, statues, and initiatives integrated into all elements of business planning
and decision-making...."
This UN Agenda 21 guideline, too, has only recently been adopted for a high-level
recommendation within the Federal Republic of Germany which is addressed to politicians
and administrative personnel: the "Expert Council on Environmental Affairs " in its
Environmental Survey 1998," has worded it as follows:
"In the discussion concerning the EMAS Regulation, demands are made time and
again that quality assurance, occupational safety, and environmental management, as well
as other management systems too should, if possible, be consolidated into one integrated
management system. Such a holistic model would avoid the inefficient coexistence of various
management systems without relativizing the objectives of the previous systems The
Environmental Council recommends that this idea should be taken into account in amending
existing systems, or in creating new ones in future. Otherwise, the present state of affairs
will pose the risk of a new management system being introduced only as an appendage'
to an established one. There is reason to believe that in many cases, the EMAS system
was only grafted on an existing quality-management system (approximately 80% of the
audited companies already have a quality-management system); this would reduce the
independent status of corporate environmental protection."
5 ABBREVIATIONS/EXPLANATIONS
EMAS = Council Regulation (EEC) No. 1836 / 93 of June 29,1993, allowing voluntary
participation by companies in the industrial sector in a Community eco-management and
audit scheme; Official Journal of the European Communities No. L 168 of July 10,1993 p
1 ff. — known as "Eco-Audit Regulation," herein also referred to as "EMAS Regulation'."
ISO = International Standardization Institute
Resolution of the Commission of April 16, 1997, to recognize certification methods
in accordance with Article 12 of the (EEC) Regulation No. 1836 / 93 ... (97/264/EC) and
resolution of the Commission of April 16, 1997, to recognize the international ISO 14001
standard : 1996 and the European EN/ISO 14001 standard: 1996 for environment
management systems in accordance with Article 12 of the (EEC) regulation No. 1836 / 93
... (97/265/EC), Official Journal of the European Communities No. L 104, p. 35 ff
Lean State Advisory Council
(on-line in the Internet): http:/www.bundesregierung.de/inland/ministerien/innen/
sachverOO.html
AGENDA 21 of the Conference on the Environment and Development of the United
Nations in Rio de Janeiro of June 1992 is the action program adopted by 178 nations for the
21st century on cooperation in the fields of environment and sustainable development.
"For a sustainable and environmentally compatible development. A program of the
European Community for an environmental policy and measures aimed at a sustainable and
environmentally compatible development," resolution of the Council and the representatives
of the governments of the member states in the Council of February 1,1993 Official Journal
of the European Communities, No. C 138, p. 1 ff., Chapter 8: "Subsidiarity and joint
responsibility". ' '
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218 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
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WORKSHOP 3B: ENVIRONMENTAL CRIMES AND CRIMINAL ENFORCEMENT 219
WORKSHOP 3B
ENVIRONMENTAL CRIMES AND CRIMINAL
ENFORCEMENT
Internationally, the role for criminal enforcement is very varied with some nations relying
exclusively on criminal enforcement mechanisms for the full range of possible violations of
environmental requirements and others reserving criminal enforcement for actions thought
to be criminal" in nature. Nevertheless, there is increasing recognition of at least a set of
violations of environmental requirements that are recognized as "environmental crimes" worthy
of treatment under criminal codes and criminal prosecution. The players involved in criminal
enforcement sometimes differ from those in civil enforcement requiring different forms of
cooperation both nationally and internationally.
10. Summary of Workshop Discussion, Facilitators: E. Devaney, A. Gallas,
L. Spahr, T. Spel; Rapporteurs: S. Hay, M. Panders '. 221
11. Criminal Law and the Protection of the Environment in Brazil Benjamin
Antonio H.V. ' 227
12. Using Coordinated Enforcement to Protect Forests from Illegal Logging in the
Philippines, Oposa Jr., Antonio A 235
Papers 1-9 for Workshop 3B and a list of related papers from other International
Workshops and Conference Proceedings are in Volumel
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220 FIFTH INTERNATIONAL CONFERENCEON ENVIFONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 3B ENVIRONMENTAL CRIMES 221
: ENVIRONMENTAL CRIMES AND CRIMINAL
Facilitators: Workshop 3B: Earl Devaney, Ton Spel
Workshop 3BB: Andreas Gallas, Linda Spahr
Rapporteurs: Workshop 3B: Michael Fenders
Workshop 3BB: Susan Hay
GOALS
Discussions were designed to address the following issues:
How countries are using and developing criminal enforcement authority for
addressing environmental crimes and for deterring and correcting violations of
environmental laws.
Kinds of sanctions and other consequences made available through criminal
enforcement and how effective they are in achieving compliance.
The proper role of criminal authorities and sanctions in environmental
enforcement. The relationship between criminal and civil enforcement and for
what types of violations criminal enforcement (rather than civil enforcement)
is particularly well suited.
National cooperation in criminal enforcement: government entities that miqht
be involved in making criminal enforcement successful ahd how these different
groups can be encouraged to work together. '
available reqU""ecl to supP°rt cril™nal enforcement and training materials
How INTERPOL works and how to access country contacts and INTERPOL.
International cooperative efforts among countries to prevent, detect and
prosecute crimes: what has worked well and what has not worked well 'what
improvements can be made and what information needs to be shared'.
INTRODUCTION
hf ^°rkSh°P Started wlth general Deductions from the participants and an
of their expectations from the Workshop. The expectations were essentially to"
gain from the experiences of others;
make contacts;
leam about strategies employed in other countries in relation to environmental
crime; and
obtain some clarification of the concept of environemental crime.
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222 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 PAPERS
There were nine papers in Volume one of the proceedings of Monterey available. Earl
Devaney et. al. reported about the G-8 Mandate that combat international environmental
crime. Rob Bakx et. al. reported on the cooperation among the police, the judiciary and
government to control crimes against the environment. The strategy on enforcing
environmental law through criminal law was in the paper of Biezeveld et. al. The role of the
criminal investigation in local enforcement was reported by Steven Drielak. Andreas Gallas
et. al. gave the German experiences and approaches to transboundary environmental crimes.
The position of the public prosecutor is the Netherlands in regard with the enforcement of
environmental legislation was reported by Ton de Lange et. al. From Cameroon, Pierre
Mbouegnong reported on environmental crimes and criminal enforcement. Linda Spahr
explained local enforcement as a fundamental component of environmental compliance. Ton
Spel reported on improving the quality of the environmental task of the police in the
Netherlands.
3 DISCUSSION SUMMARY: WORKSHOP 3B
3.1 How countries are using criminal enforcement authorities and sanctions?
Unlike the Third conference workshop at which it was reported that many countries
represented used some combination of fines, penalties, jail terms, closing the facility, negative
publicity, requiring environmental audits and injunctive relief as sanctions in criminal cases
at Monterey, all countries represented at the workshop reported having such criminal
sanctions. Several countries had even enacted a death penalty for certain types of
environmental crimes. Criminal statutes may also allow for the seizure of property related
to the crime and environmental crimes may also be prosecuted under other charges such
as tax fraud, racketeering, or giving false statements to government regulators.
The People's Republic of China and Hong Kong reported significant prison terms
and some 30 cases involving illegal imports of waste. Other countries, such as Romania,
had recently enacted criminal laws providing for up to six years imprisonment for knowing
violations, but had not yet sentenced a defendant to jail. Several countries reported that the
laws were on the books, but they had no resources or institutional capacity to enforce the
laws.
It was noted that criminal enforcement is difficult in countries where the economy
and development has a higher priority than the environment or there is a lack of public
awareness about the adverse effects on health and the environment from serious violations.
It was agreed that it is important to publicize environmental scandals as a means of public
education and support. It was a general view that environmental enforcement may take years
to develop. It is a long process of training, coordinating efforts and knowledge, developing
laws and regulations, setting up permit systems, and then developing cooperative law
enforcement capacity.
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WORKSHOP SUMMARY: 3B ENVIRONMENTAL CRIMES 223
3.2 The Role of Criminal Enforcement Authorities and Sanctions within a Broader
System of Environmental Enforcement and Compliance Assurance and the
Society at Large
w. «.C,riminal enforcement generally reserved for the most serious violations, particularly
those that result from culpable individual or corporate conduct ranging from deliberate
criminal conspiracies to illegally dump hazardous waste or smuggle CFCs to negligent
operation of facilities or ships resulting in harm to the environment and human health such
as oil spills or releases of toxic chemicals to the environment. In most countries the number
of administrative cases is much larger than the number of criminal prosecutions and
appropriate y so. Criminal cases are the most resource intensive as the government 'must
prove intent and satisfy the due process requirements of a criminal trial. Accordingly the
criminal sanctions should be selectively used to maximize their deterrent impact on society
Past history of compliance is always an important consideration in determining
whether criminal enforcement is warranted. Companies that view payments of civil or
administrative fines as a cost of doing business and are repeat violators may be liable for
criminal sanctions. It is important that guidance be developed to determine when it is
appropriate to use cnminal enforcement, and the regulated community should be made aware
of what constitutes a criminal offense. In this way, not only is deterrence enhanced by public
communication, but it becomes easier to make criminal cases against those who were on
notice but violated the law anyway.
Who determines whether a particular violation may be prosecuted criminally and
whether the case is brought against a company, individuals, or both, varies from country to
country. In some countries the determination is made by the public prosecutor in other
countries a screening committee or federal agency may make this determination on which
type of sanction to bring in a given case; criminal, civil, or administrative. It is essential that
the decision makers have all the relevant information from all the relevant agencies including
compliance data, to make an informed decision. Environmental enforcement task forces
comprised of all relevant agencies pooling their resources and information to investigate
violations in one geographic area have proved an effective method to ensure that all relevant
information is available to decision makers in a collaborative process. Finally, a cooperative
coordinated approach is needed between affected programs like the police, the environment
agency, prosecutors, fire and hazardous materials teams. Defining roles, responsibilities
and assigning accountabilities is essential.
.. ....ln a number of places, a country's economics and culture influence whether and how
they utilize negotiations, fines, warnings, or criminal prosecution. It was agreed that nations
shouId emphasize the value of maintaining a level playing field between sources as a matter
of national policy so that a polluter does not gain an economic advantage over a clean industry
In some instances countries have found support from law abiding industry for developing a
criminal program if they believe it will protect their markets. There was also discussion about
the importance of imposing sanctions on individuals as well as corporations It was clear
that severe sanctions have a preventive effect because of deterrence in all the countries
represented.
3.3 Training and Law Enforcement Cooperation to Facilitate Criminal Enforcement
Many countries are in need of good training programs for investigators and
prosecutors, and for judges as well. Many times environmental crimes are so complex that
it takes full-time investigators'and prosecutors to develop the requisite expertise to learn and
apply the laws.
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224 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In countries where the police are not involved in environmental enforcement but
should be, a basic awareness training is important for all law enforcement who may encounter
environmental crimes in the course of their duties. In this way, patrolling officers will know
what to do and who to call, and more importantly, what not to do when confronted with a
hazardous situation as well as a potential crime scene.
3.4 Conclusion
Since the Third Conference there have been a consistent conclusion that "criminal
sanctions play a fundamental role in environmental enforcement programs and send a strong
deterrent message to industry and the public. In order for a criminal enforcement program
to be effective, cooperation, including training and joint operations, among all agencies
involved and the relevant law enforcement institutions is essential, particularly where there
are limited resources devoted to environmental enforcement efforts as such." It is important
that criminal enforcement programs target the most egregious violators to conserve limited
resources and maximize deterrence of the worst behavior, while preserving proportionality
in broad based enforcement and compliance regimes and building support for these cases
within the criminal justice system.
4 DISCUSSION SUMMARY: WORKSHOP 3BB
4.1 Definition of Environmental Crime
The group found it difficult to agree on a definition of environmental crime. It was
apparent that different legal systems in the different countries treated violation of
environmental legal requirements in different ways. It was, however, agreed that one had to
look at whom or what was intended to be protected (human health/environment), the
seriousness of the damage/risk, the size of the geographical area or population affected and
any financial gain accruing to the violator as a result of his action.
In some countries there had to be a criminal intention for negligence, in others a
"strict liability" approach was adopted. Not all countries recognized the concept of corporate
criminal liability, which made it difficult to obtain judgements against companies. Some
countries had a very clear list of what was regarded as "environmental crime", such as:
• water pollution
• soil pollution
air pollution
environmentally unsafe waste management
unlicensed running of a facility
• unauthorized use of nuclear fuel or emission of radiation
endangering protected species
illegal handling of dangerous substances.
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WORKSHOP SUMMARY: 3B ENVIRONMENTAL CRIMES 225
4.2 Sanctions
The type of sanction used (civil, administrative or criminal) varied according to the
°° - I6!gal SyStemS' ln S0me countries a" violations of environmental law were
L? cnmmal offences Others had found that fines (which were regarded more as
administrative rather than cnmmal sanctions) worked more effectively. In other jurisdictions
there was also the possibility of other administrative sanctions such as closing down a factory
another1 opHon ^^ ^"^ ***** ^^^ sanctions were available, imprisonment was
™ w ^ '" S0me?f the devel°P'n9 countries, the law was weak in that only very small fines
could be imposed or there was no environmental law as such and recourse had to be more
traditional charges such as theft or criminal damage to property
r^wm/fT C° f trieS Provided for damages to be paid as a result of pollution and
repayment of any financial gam or benefit to the violator resulting from the violation
** » » J T gene!;a'lv a9reed that Peer Pressure or adverse publicity in the press worked
as a very effect,ve deterrent. Criminal prosecution seemed to be an effective deterrent in
countries where administrative/civil enforcement was already firmly in place
In certain countries the political will was not always present to protect the
environment. In countries which had faced widespread natural disasters and problems of
feeding, cnmmal enforcement was probably not a realistic goal. Education and implementation
laWS wLTnn°nnTf P^ "^ ?*,* * «**»« ***" Criminal «**»£«* of Such
heJwImnmlnf L ^^"^velopment was accorded greater priority than protecting
the environment. Also, judges did not always regard environmental offences as serious and
consequently handed down only small penalties.
4.3 Cooperation Between Different Authorities Within a Country
. Again' thetre was a 9reat divergence in practice according to the countries' individual
Infi;astructures- ln s°™ Countries the police were the enforcing and prosecuting
s, in others private prosecutors or officials brought charges
close rnt h, ef?ntial that whatever the particular system, there should be
close
h, , e
between all the relevant agencies and the police and judicial authorities
f T9 u Professiona|s >n all the relevant sectors was regarded as highly
" '""" °f ^ SCientmC' technica' and '«9a' Background to"
4.4 Conclusion
^ ^^ °f l69a' sysiems and Mvldual country approaches made it very difficult
M96" c°nsensus as to what sort of violation could be regarded as "environmental
^'4 ^ 9enera"y a9reed ^ai ihe ^^' oints should *
« rnnn Points should *» addressed in
all countries if enforcement of environmental law was to be effective:
Education - the general public and "regulated" community should be well
informed as to environmental law requirements and the benefits flowing from
compliance with such requirements.
Training -judges, police and prosecutors should be trained to enable them
to properly assist the environmental agencies.
Speeding up of the judicial process - delays in court proceedings were not
conducive to deterrence.
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226 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Politicians had to be convinced of the long term benefits of environmental
protection rather than giving priority to economic development, particularly in
developing countries.
Flexibility - legal and administrative systems should be flexible enough to give
the appropriate response in each case.
The group found it difficult to agree on a definition of environmental crime given the
different legal systems in their respective countries and diversity of practices. However,
factors to be taken into account included:
Who or what was intended to be protected (human health/environment).
The seriousness of the risk/damage.
The size of the geographical area/population affected.
Financial gain to the violator for ignoring the legal requirements.
Sanctions varied from country to country - in some (e.g. Germany) high fines of a
civil rather than a criminal nature were a deterrent. In others the criminality aspect and
adverse publicity were effective.
It was generally agreed that there should be cooperation between the different
agencies in a country and that training was important, particularly for judges and lawyers.
Politicians, the general public and the "regulated" community should be educated as to
environmental legal requirements and the legal and administrative systems should be flexible
enough to give the appropriate response in each case.
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BENJAMIN, ANTONIO HERMAN V. 227
CRIMINAL LAW AND THE PROTECTION OF THE ENVIRONMENT IN
BRAZIL
BENJAMIN, ANTONIO HERMAN V.
Lawyers for a Green Planet Institute, Rua Libero Badaro, P.O. Box CEP01008-908 Sao
Paoulo, Brazil
SUMMARY
The author reviews the development of criminal instruments in the protection of
natural resources in Brazil and the growing importance of criminal sanctions in setting up
compliance and enforcement programs. Special attention is given to the 1998 Crimes
Against the Environment Act, a piece of legislation containing highly innovative provisions
that could have a considerable impact on how the environment is protected in Brazil.
1 THE WORLD SCENE
Over the past few years, criminal law has expanded its involvement in environmental
protection exponentially, both through enactment of new laws and more effective enforcement
of existing provisions. This phenomenon, initially limited to a handful of countries like the
United States, is now an international trend.
In this regard, a major development was the UN General Assembly Resolution 45/
121 on The Role of Criminal Law in the Protection of Nature and Environment" which
endorsed a report of the same title adopted by the Eighth United Nations Congress on
Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba in 1990 2 The
Resolution stated, inter alia, "that in addition to measures provided by administrative law and
habihty under civil law, measures should be taken, where appropriate, in the field of criminal
law.: In addition, it called upon Member States to "recognize the need to modify or enact
where necessary, and to enforce national criminal laws designed to protect nature and the
environment, as well as people, threatened by their deterioration."
In 1995, the topic was again discussed at length during the Ninth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, held in Cairo, from April
29 to Msy 8.
It was in this setting of renewed interest in criminal law as a powerful tool for the
f hUma" hea"h and ecosystems that Braz]l recently enacted Law no. 9605 of
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228 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 OVERVIEW OFTHE LEGAL PROTECTION OFTHE ENVIRONMENT IN
BRAZIL
Brazil is a world power in terms of natural resources. At the same time, however,
it ranks among the leaders also in pollution3 and irreversible destruction of habitats,4 a fact
exhaustively stressed by scientists and lately acknowledged by the government.
In spite of such an alarming assessment, the situation might have been even worse
if the country had not made dramatic changes in its legal system during recent years to
improve its struggle against pollution and environmental degradation.
Since the mid-sixties, several laws were enacted with a view to regulate several
issues and activities that interface with the environment: the 1965 Forest Code;5 the Fauna
Protection Act,6 the Fishing Act? and the Mining Act,8 all adopted in 1967; the 1977 Liability
for Nuclear Damages Act;9 the 1980 Industrial Zoning Law for Critical Pollution Areas;10 and
the 1989 Pesticides Act.11
But it was the National Environmental Policy Act of 198112 that really set in motion
environmental protection as such in Brazil. The legislators went beyond the piecemeal
approach so typical of the legislation enacted prior to that date. The Act did more than
establish the principles, goals and instruments of a national policy forthe environment. It
brought into the Brazilian legal system the environmental impact statement. In addition, the
Act provided a regime of strict liability for environmental damage and gave the Offices of the
Attorneys General standing to sue on this matter.13
An important step toward this legal development was the promulgation of a new
Federal Constitution in 1988, right after democracy had been fully restored in Brazil. Among
other innovations, the new Charter embodies a whole chapter on the environment,14 aside
from providing a social-environmental obligation inherent in property rights.1S
3 FLAWS IN THE PREVIOUS CRIMINAL LAW REGIME ANDTHE DRAFTING
OFTHE 1998 CRIMES AGAINSTTHE ENVIRONMENT ACT
Even before the enactment of the Crimes Against the Environment Act and the efforts
to give a more prominent role to criminal law in environmental policy, Brazil already had
several legal provisions determining criminal sanctions for offenses in areas such as pollution
control,18 flora,17 fauna,18 fishing,19 and pesticides.20 The 1940 Criminal Code, still in force
today, has a number of provisions that might (and can) be enforced to protect the
environment.21
Such criminal offenses were open to criticism from several angles. First, because
they had a double standard, treating wildlife and habitat differently. Behaviors harmful to
fauna, for example, were defined as a felony and subject to heavy punishment (prohibition
of bail, e.g.), while actions harmful to flora were classed only as misdemeanors, whether the
offender had cleared one or 100,000 hectares of native forest. Second, because of several
poorly worded provisions and a fragmented approach to the environment as such, it was easy
for defendants to be acquitted. Third, nearly all criminal offenses would require intent.
Plagued with so many flaws, it is no surprise that in describing the situation prevailing in the
'80's, Roger W. Findley stated that "to date, criminal actions have been a negligible factor
in the overall efforts to abate pollution in Brazil."22
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BENJAMIN, ANTONIO HERMAN V. 229
My concern with the ineffective existing criminal laws and my conviction that they
could be useful in affording adequate protection to the environment, I suggested to then-
Minister of Justice Nelson de Azevedo Jobim in early 1996 that a Legal Experts Committee
be appointed to draft a Crimes Against the Environment Act, to which I was appointed general
rapporteur.
The bill moved along a somewhat thorny but fast course in the Legislature. Adopted
with no major amendments by the Senate, the Legal Experts' draft lost several of its original
provisions thanks to pressures from an extremely powerful lobby that rallied together
industrials, mining concerns, timber companies, and ranchers. The law was weakened
even further subsequently by a number of presidential vetoes. President Fernando Henrique
Cardoso turned a deaf ear to the pleas not to do so from legal scholars, environmental groups
and the international community.23 a'w"K=>
Totaling 82 articles, Law no. 9605 is much more than a Crimes Against the
Environment Act, as its title implies, but also deals with administrative sanctions.
4 KEY INNOVATIONS IN THE CRIMES AGAINST THE ENVIRONMENT ACT
Law no. 9605/98 brings several innovations, starting from the fact that Brazil has in
a single piece of legislation the near totality* of criminal offenses against the environment
It should be stressed also that the law has both provisions that are dependent on
or accessory to administrative law, and others that are independent from environmental
agencies, incriminating conduct that creates serious risk to human life or health or to the
environment even when covered by a valid permit.
4.1 Criminal Liability of Corporations
One of the key innovations of Law no. 9605/98 was the introduction of corporate
-nminal liability m the Brazilian legal system. This idea subverts the Latin-American legal
tradition, where only individual liability is contemplated.
Under the new system, both individuals (including corporate management) and legal
oersons are> criminally liable, their liability limited solely to those cases where "the offense
s committed by a decision of a legal or contractual representative or of its collegiate body
n the interest or for the benefit of its organization."25
The criminal liability of corporation does not preclude "individual liability "28 and the
same conduct may bring a verdict of guilty to the corporation, its management and other
ndividuals involved.
t.2 Pollution Control
As explained above, the 1981 National Environmental Policy Act had a criminal
jrovision added to its wording in 1989 dealing specifically with pollution. Law no. 9605/98
also embodies that offense, punishing with one to four years in jail and a fine anyone who
causes pollution of any nature at levels that result or may result in injury to human health
)r that cause animal death or significant destruction of flora" (art. 54 first part)
It is also a crime to "build, remodel, expand, install or operate, anywhere in the
Brazilian territory, potentially polluting facilities, works or services without a permit or
authorization by the proper environmental agencies or in breach of the applicable legal or
egulatory standards" (art. 60).
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230 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.3 Crimes Against Flora and Fauna
Offenses against flora were classed as misdemeanors under the old Forest Act,
which weakened deforestation control considerably.
The new law has a whole section devoted to the protection of flora, listing criminal
offenses such as direct or indirect damage to protected areas,27 destruction of or damage
to specially protected native or planted forests, dune preserving or mangrove protecting
vegetation,28 or hindrance or obstacles to natural rehabilitation of plant life under protection.29
Restrictions on the use of fire was vetoed by the Brazilian President under pressure
of some powerful landholders.30
As far as wildlife is concerned, the law copied the criminal offenses already included
in the 1967 Fauna Protection Act and added a few more. For example, it is an offense
punishable by six months to a year's incarceration and a fine for anyone to "kill, stalk, hunt,
trap or use native or migratory wildlife specimens without the required permit, license or
authorization from the proper authority or in breach of any such permit, license or
authorization granted" (art. 29). If the offense occurs in the form of professional hunting —
forbidden by the Fauna Protection Act anywhere in the country — the penalty may increase
threefold (art. 29, paragraph 5).
It also constitutes an offense to "practice any type of abuse, mishandling, injury or
mutilation of wild, domestic or tamed, native or exotic animals" under penalty of three months
to a year's incarceration and a fine (art. 32, first part).
While in the case of flora the law is harsher than the criminal provisions in the Forest
Code, on wildlife it moved backward in that applicable sanctions were considerably abated.
Behavior that was punished by two to five years in jail under the Fauna Protection Act is
subject to six months to a year's incarceration and a fine according to Law no. 9605/98. Not
to mention that under the new law all such offenses are entitled to bail, which was not the
case before. In other words, in the criminal protection of fauna we went from one extreme
(too much) to the other (too little).
4.4 Crimes Committed by Environmental Officials
The change introduced by Law no. 9605/98 that has brought the heaviest and mosl
immediate impact was the criminalization of certain types of behavior of environmental
officials. It is now an offense — carrying one to three years; incarceration and a fine — foi
the "official to grant a permit, authorization or license in breach of environmental rules foi
activities, works or services that depend on authorization of a government agency" (article
67), whether the behavior is intentional or negligent (in the latter case, the penalty is three
months to a year's incarceration and a fine).
Another new provision punishes "any official who makes false or misleadinc
statements, omits the truth, or does not disclose technical and scientific information or date
in applications for environmental permits or licensing," under penalty of one to three years
incarceration and a fine (art. 66).
4.5 Sanctions
Individuals are liable to incarceration, fines and restriction of rights. Legal person:
are liable to the last two penalties, in addition to providing community services (maintenana
of public facilities, rehabilitation of degraded areas other than the directly damaged one)
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BENJAMIN, ANTONIO HERMAN V. 233
20 Law no. 7802/89, articles 15 and 16.
21 The Criminal Code has several provisions that punish as felonies certain actions
having indirect impact on the environment. Article 271, for example, which forbids
pollution of potable water as a crime against public health, or Article 132 that
broadly makes it a crime "to expose the life of health of another to direct and
imminent danger." On the issue of forest protection, Article 250 imposes
sanctions to anyone who causes "a fire, exposing the life, health or property of
others." In softer terms, the 1941 Misdemeanor Act punishes as a misdemeanor
whoever "causes excessive production of smoke, steam or gas emissions that
may hurt or cause discomfort to others" (article 38).
22 Roger W. Findley, Pollution Control in Brazil, 15 Ecology Law Quarterly 51 (1988).
23 Expressing the concern of both the international community and Brazilian
environmentalists, the New York Times printed an editorial stating that the
President "now has on his desk new legislation that finally gives the county's
environmental agency a modicum of power to enforce environmental laws "•
concluding that "Mr. Cardoso must refrain from further weakening an already weak
bill (Half-Measures to Protect the Amazon, NY Times Feb 2 1998 A24
(Editorials).
24 When it was first submitted to Congress, the last provision of the bill listed
expressly all criminal offenses that would be revoked. But in view of the firing
power of the opposing members of the House of Representatives and the clear
intent of the President of vetoing several other provisions, the Legal Experts
Committee felt it would be wiser to simply end the text with "all other provisions to
the contrary are hereby revoked." Through this artifact, preexisting criminal
offenses not modified by Law no. 9605/98 would remain in force. Such is the
case, among others, of the criminal offense status given to whaling where the
penalty involves 2 to 5 years in jail plus a fine (Law no. 7643 of 12.18.87).
25 Article 3, first part.
26 Article 3, second part.
27 Article 40, first part.
28 Article 50.
29 Article 49.
30 The provision vetoed had already been considerably watered down by the powerful
ranchers' lobby, and merely criminalized setting fire to forests and other plant life
without due precaution to prevent its spread" (article 43, first part).
31 To justify the generous deadline granted for polluters to make the necessary
adjustments, the Sao Paulo State Secretary for the Environment, Stela
Goldenstein, the main advocate of the highly controversial measure said that it is
not in the best interest of Brazil to suddenly shut down "such a sizable part of the
Brazilian industry." See A SMA e a Medida Provisoria 1710, 12 SMA Esclarece 2
(August 1998).
32 "Medida Provisoria" no. 1710 of 08.07.98
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232 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 A/CONF.144/L4
3 The case of the petrochemical complex of Cubatao, a city of over 100,000 people
on the coast of Sao PauloState, made international headlines due to its staggering
population levels in the eighties. Cf. Hoge, New Menace in Brazil's Valley of
Death' Strikes at Unborn, MY Times, Sept. 23,1980, at 2, col. 1.
4 "Brazil is the biggest deforester (in terms of area and speed), accounting for about
three-quarters of total world rainforest clearance," Chris C. Park, Tropical
Rainforests, London and New York: Routledge, 39 (1992). To illustrate the extent
of the problem, take the state of Sao Paulo: when it was originally settled "88.8%
of its lands were covered with forests. By the early 90's, it was estimated that the
remaining forest cover barely reached 1.7 million hectares, or just 7.16% of the
primitive area," Sao Paulo State Secretariat of the Environment, Do Rio as Ruas: a
Insercao da Agenda 21 no Cotidiano Paulista, Sao Paulo: SMA (1997), 78.
5 Law no. 4771 of 09.15.65. Despite its title, this statute does not rule only on
"forests" but extends to "other forms of plant cover" (article 1, first part).
6 Law no. 5197 of 01.03.67, also known as the "Hunting Code" until it was amended
by Law no. 7653 of 02.12.88, when the word "hunting" was replaced by "fauna
protection."
7 Law-decree no. 221 of 02.28.67
8 Law-decree no. 221 of 02.28.67
9 Law no. 6453 of 10.17.77
10 Law no. 6803 of 07.02.80.
11 Law no. 7802 of 07.11.89.
12 Law no. 6938 of 08.31.81.
13 This standing to sue was subsequently amplified by Law no. 7347/85, whereby
other parties, including environmental associations, are entitled to institute a public
civil suit demanding restoration of the damaged areas or pecuniary compensation
for the damages done.
14 Article 225
15 Articles 170, VI, and 186, II.
16 In 1989, a new provision (art. 15) was added to the National Environmental Policy
Act (Law no. 6938/81) whereby criminal sanctions would be brought against "a
polluter who exposes human, animal, or plant life to hazards or who increases any
existing hazardous condition."
17 Forest Code, article 26.
18 Fauna Protection Act, article 27. Law no. 7653 of 02.12.88 that rechristened the
existing "Hunting Code" changed all of its criminal offenses, which had been mere
misdemeanors, into felonies, with much heavier penalties.
19 Fishing Code, articles 61 and 64.
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BENJAMIN, ANTONIO HERMAN V. 231
restriction of rights means, among other things that the offender
in WH th : reCSiVe taX incentives or any other kind of benefit
" als° Hable to partial orfu" suspension °f its
certain reen^ ^ ^ 8U6pend « m^aie Criminal sanctions
T^^
and a ninnJ!!6 Statn ? SaO PaU'° "~ ^ m°st affluent and industrial unit of the federation
*
have
was only after the Crimes Against the Environment Act that CETESB — the
«,ith th« », * c°ntrol .agency - and the State Secretariat of the Environment, concerned
with the threat of criminal liability for its officials, decided to fully enforce Law 997/76
notices ?n°'rf^dayS before.Law".°- 9605/98 came into force, CETESB issued over7,000
not ces to polluter companies demanding that they either apply for or renew their
environmental permits. Those who could comply with the environmen al standards had new
Pewits issued, but major steel, petrochemical, mining and automobile companies that hid
equipment* ^ ^^ be°aUSe they ^^ m°re "^^'^"^w pS"uflOT8SJS
SIS' hS ST^S1* ?^:E"Vir°"m<:nt31 and CETESB went to President
edda Provi. P^ers or en
( Medida Provisona ), withdrawing enforcement of Law no. 9605/98 and givinq oolluters more
time to make the necessary adjustments. A deferral of up to ten years was araSed
postponmg fuj, enforcement of the environmental law in BmSl untN th^^year^0089- The
presidenbal order and the attitude of the Secretariat favoring polluters were severely criticized
KJXTIi11 mehntaliStS' bV °ffidalS °f envir°"^ental agencies, and 1^^^ more
broadminded business leaders. It was indeed astonishing to see a decision
In roQnrme^ f~„ M- f a »'=^nmiy yiesiaeniiai anagucematoria eections
In response to public pressure, President Fernando Henrique Cardoso reissued the
emergency measure cutting the deadline back from ten to up to six years In spite of thesJ
hurdles, however, Law no. 9605/98 will improve environmental protection in Brazil The bia
anSfTr9^- n°W !? t0 enf°-Ce the 'aw' Witnout effective enforcement, the law will become
another piece of paper with little or no benefit to the people.
REFERENCES
^nlf 'StTlAttA°Iney General' Head Of the Environmental Protection Division
"* "^Office of the Attorney General of the State of Sao Paulo, member of the
1 Nation's Legal Experts Committee on Crimes Against the Environment
?KUI" on L^a' Experts Committee of the Ministry of Justice in charge of
j the Bill on Crimes Against the Environment, President of Lawyers for a
Green Planet Institute, and visiting Professor of Environmental Law at the
University of Texas School of Law at Austin (1995-present)
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234 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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OPOSA JR., ANTONIO A. 235
USING COORDINATED ENFORCEMENT TO PROTECT FORESTS FROM
ILLEGAL LOGGING IN THE PHILIPPINES
OPOSA JR., ANTONIO A.
A. Oposa and Associates, Madrigal Business Park, 1780 Alabang, Muntinlupa City,
Philippines
1 INTRODUCTION
Fifty years ago, more than half of the Philippines' 30 million hectares of land area
was old growth tropical rain forest. By 1988, satellite imagery indicated that only 800,000
hectares of the virgin forests remained -the millions of other hectares of forest being victims
of illegal commercial logging and the slash and burn farming that follows in the wake of illegal
logging.
In the 1980s, five critical regions were identified: four regions covered with virgin
forests that were still subject to large-scale felling, and additional regions that served as
marketplaces for illegal forest products.
The regions containing significant virgin forest resources included: the north-eastern
Province of Isabels the eastern seaboard Province of Samar, and the south-eastern seaboard
Provinces of Surigao and Agusan. Adjoining provinces were also identified as critical areas
- not because they contained virgin forests but because they served as markets for illegal
forest products.
The population was mostly indifferent to the decline in virgin forest areas. Those who
were concerned felt generally helpless, as the perception was that powerful politicians and
military personnel were behind illegal logging operations. In addition, people felt that the
Department of Environment and Natural Resources, which is charged with oversight of the
nation's forests, was also a part of the problem. The perception was that illegal logging could
not occur without the cooperation of the Department of Environment and Natural Resources
personnel. However, a closer look at the situation revealed that the forest rangers and other
Department of Environment and Natural Resources personnel actually had little choice. In
the milieu that they were working, they were forced to cooperate with wealthier groups. If
they did not cooperate, they faced either transfer to another region or threat to life and limb.
Moreover, such cooperation served to supplement their meager monthly income.
Although there were laws designed to control and manage the harvesting of timber,
economic incentives facilitated the erosion of the reserve of virgin forest resources. Forestry
(legal and otherwise) was the primary source of livelihood for many communities. Until 1992,
there were only a handful of convictions for violations of the forestry laws. Hardly any of the
worst offenders were ever apprehended, much less prosecuted.
This case study focuses on the efforts of a group of men who sought to utilize the
law to reduce the environmental damage done by illegal logging. It describes in detail the
effort to create a 'legal army' made up of personnel from different agencies of government
which were critical in the effective enforcement of forestry laws. The unique quality of this
group is that its factors were not united in a single common cause but rather wanted to
address separate, though related, forestry issues. This case study details a massive law
enforcement campaign that, at the very least, exhibited the political will to curb illegal logging.
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236 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 SUMMARY OFTHE LEGAL MECHANISM
Since 1975, the Philippines has had a comprehensive law on Forestry (Presidential
Decree (PD) No. 795). The law and its regulations are voluminous and detailed. The law
provides that:
"Any person who shall cut, gather, collect or remove timber or other forest products
from any forest land without any authority under a license agreement, lease license or permit,
shall be guilty of qualified theft... In case of partnership, association or corporation, the officers
who ordered the cutting, gathering or collecting shall be liable..." (Sec. 68, PD 705)
The law was extremely difficult to enforce because, for all practical purposes, it was
next to impossible to apprehend persons in the middle of the forest. Consequently, the point
of contact was usually in the highway where the forest products were being transported and
in the milling stations and lumber yards where the forest products were being readied for the
market. Thus, Executive Order 277 (1987) made mere possession of illicit forest products
an offense punishable as qualified theft."
As described below, criminal procedures allowed for inquest proceedings in the field.
When a person has been apprehended in the act of committing an offense, he may be
subjected to an immediate, on-the-spot hearing to determine probable cause and to
temporarily detain violators pending release on bail.
In 1990, a major law enforcement campaign, called the Monitoring and Enforcement
Component, was designed with funding from the World Bank. As part of this enforcement
campaign, a forestry enforcement project was prepared and implemented. Following the
presidential elections of 1992, a new Secretary of the DENR was appointed.
3 WHAT HAPPENED?
3.1 The August 1992 Raid
The first phase of the project was to test the provisions of the law and applicable
criminal procedure. It was necessary to send a message to the illegal logging community
that the law can be used against big-time offenders, and that the law could be applied in a
swift and painful manner. Consequently, a raid was planned in Region IV, a known market
and milling center. The initial raid was aborted due to an information leak, and a second raid
was planned which allowed more time for preparations.
A team of dedicated and experienced officials from the Department of Justice, the
National Bureau of Investigation and the Department of Environment and Natural Resources
was assembled. To document and publicize the effort, a photo-journalist was invited to join
the team. This would be the first time this type of team had been organized for the sole
purpose of apprehending criminals behind the illegal forestry operations rather than merely
intercepting the illegal logs and forest products. For security reasons, the legal team had
to be small, mobile and hand-picked. This team was part of a bigger team of the Department
of Environment and Natural Resources that was to conduct surveillance in Butuan City and
included a light plane. The specific objective was known only to the Legal Team Leader, the
Department of Justice and the National Bureau of Investigation.
To ensure that the raid would be legal, the team secured a special order from the
Secretary of the Department of Justice authorizing the travel and participation in the conduct
of operations by its personnel. To ensure secrecy in the event a search or arrest warrant
was necessary, the Deputy Court Administrator of the Supreme Court prepared a letter
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OPOSA JR., ANTONIO A. 237
addressed to the concerned judges of the Region introducing the team, the team leader and
the team s mission. Upon arrival, the team coordinated with the local courts and theDOJ
Prosecutor's Office to ensure their availability at all time in case the operation occurred durinq
the night.
Late in the afternoon of August 13,1992, the surveillance team spotted presumably
illegal logs floating in the river at the back of a large plywood factory. The Legal team was
mobilized into action.
«, . u Security guards bearin9 shotguns guarded the factory compound. It was important
that the team also exhibit a show offeree to prevent the guards from resisting and thereby
avoiding violence; overpowering force is essential to foreclose even an attempt to resist Thus
in coordination with the local Military and without disclosing the Team's intention a squad
of battle-uniformed soldiers, armed with Armalite rifles and rocket launchers was secured
as a back-up force.
Once the team verified thai! the suspected logs were in fact illegal, the team
dispatched the local investigating prosecutor to the plywood factory's compound Then and
there, the team commenced inquest proceedings under the direction of a street-smart
member of the Legal Team, State Prosecutor Reynaldo Lugtu. Before the formal proceedings
began, the persons arrested -the General Manager, the Assistant General Manager and
the Procurement Officer - called for their counsel who arrived and asked for the team's
authority.' At this juncture, the team showed the counsel their 'authority' - the Special Order
from the Department of Justice Secretary.
Before midnight and barely six hours from the start of the operation, the corporate
officers arrested were in jail. For the first time in the history of Philippine natural resources
law enforcement, top officials of a logging company were arrested, subjected to an inquest
and jailed. Instead of the inquest being conducted in the Office of the Investigating Prosecutor
it was conducted in the field, in this case, at the sawmill.
3.2 Institutional Cooperation
Prior to this campaign, one of the chief complaints of the Department of Environment
and Natural Resources personnel was the lack of understanding and cooperation from other
concerned institutions that resulted in frequent dismissals of illegal logging cases The
success of the August 1992 raid demonstrated the benefits of agency cooperation and
pointed to the need to institutionalize the arrangements to ensure the success of ongoing
enforcement efforts. This was accomplished through the use of a series of Memoranda of
Agreement between relevant agencies and judicial offices. The Memoranda of Agreement
process was designed to enlist the personal support of the concerned agencies and to
educate them on the intricacies of forestry law enforcement. The critical agencies were the
Department of Justice, the National Bureau of Investigation and the Courts of Law.
3.3 Creation of the National Steering Team
One major weakness of previous law enforcement efforts that the forestry
enforcement project sought to remedy was that once a case was filed, the different agencies
including the Department of Environment and Natural Resources personnel, would lose
initiative or become subject to undue and extreme financial or political pressure's This was
addressed by creating a National Steering Team composed of senior members of the various
governmental organizations with jurisdiction over illegal forest activities. The National
Steering Team closely monitored enforcement efforts in the various regions The National
Steering Team would convene the local Department of Justice , the Department of
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238 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Environment and Natural Resources, National Bureau of Investigation, Police and Judges,
and NGOs in a day-long meeting in their respective locales, rather than in the air-conditioned
comfort of offices and hotels in Metro Manila. These meetings would run through each and
every pending case and National Steering Team members with the problems in the field.
Being high-ranking in their respective departments (Department of Environment and Natural
Resources and Department of Justice), the National Steering Team members would be in
a position to immediately address any problems encountered. Through the meetings, field
personnel would be kept on their toes knowing that the higher-ups are watching and
monitoring the flow of the cases. In addition, field personnel would develop the confidence
to resist and have a convenient 'scapegoat' when being subjected to social or political
pressures. They could easily point to the fact that the National Steering Team was monitoring
every step of the way and that they would be held answerable in public for any mishandling
of the cases. Above all, the National Steering Team was meant to deliver the message that
the government was serious in its efforts to curtail illegal logging.
4 DID THE LEGAL MECHANISM WORK?
The success of the effort to enforce the forestry laws may be classified in two ways:
the legal operation, and the overall effort to coordinate the actions of the concerned
institutions.
The legal operation was meant to deliver the message that the law can be used to
administer swift and decisive justice. To the extent that several agencies of government,
cooperating with the media and NGO elements, were able to coordinate their activities and
launch a massive operation with almost surgical precision was, in itself, an accomplishment
unprecedented in the history of environmental law enforcement in the Philippines. That
prominent persons were arrested and charged was by itself a singular achievement. Indeed,
the law can be made to work when a few key people are determined to make it work.
Creative application of the law can achieve the desired end of sending a message.
With respect to the total effort to educate the concerned agencies and to coordinate
their functions, the statistics on the rate of convictions tell a compelling story. .Since July
1995,180 convictions for forestry law violations have been recorded. Virtually no violations
were recorded prior to 1992.
To be sure, the legal enforcement effort has suffered numerous setbacks. Certain
prominent suspected violators were eventually acquitted on technicalities and other reasons.
For example, the suspected violators in the first Butuan raid (where inquest proceedings were
held in the field) were acquitted on reasonable doubt. The law requires that for corporations,
the officials who ordered the possession or cutting be held liable. In practical evidentiary
terms, however, it is next to impossible to prove, for example, that the General Manager
actually ordered the cutting or the possession of illegal forest products. The law needs tc
be amended to the effect that the General Manger or other responsible officer, being in contro
of the firms' operations, shall be presumed to have ordered the illegal operations.
In the end, it is noteworthy that many who violated the forestry law were prosecuted
The fact that the number of convictions has escalated is a credit to the men and women wh<
dared to uphold the law.
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OPOSA JR., ANTONIO A. 239
5 WHY DIDTHE LEGAL MECHANISM WORK?
The Memoranda of Agreement process contributed significantly to the success of
the forestry enforcement project, by facilitating the interagency cooperation necessary to
carry out the raids and follow through on the enforcement actions. Another major factor in
the success of the enforcement projects was the creation of the National Steering Team.
By creating a coordinated mechanism for monitoring enforcement efforts throughout the
country, the National Steering Team was able to address the problem of undue influence on
local officials charged with forestry enforcement.
Media attention was also important to the success of the enforcement effort. The
success of the operation was publicized in order to send a message to those who profited
from the illegal timber trade - the government was now committed and able to enforce the
forestry law. The publicity also served to help solidify popular support for the forestry law
enforcement effort. Although there are few statistics to prove it, it is reported that this single
operation dramatically reduced illegal forest products trade in the area. The operation
unquestionably showed that given cooperation by the various agencies concerned, illegal
logging operations can be raided and shutdown.
6 CONCLUSION: LESSONS LEARNED
To strengthen the enforcement effort, the delivery of swift and substantial penalties
must be coupled with maximum publicity. If law enforcement is to serve as a deterrent, those
that violate the law must be aware of the consequences. The raid on the plywood factory
in August 1992 and subsequent air, land, and sea raids conducted in June and July 1993
in other critical areas of the country (code named Oplan Jericho) received wide-spread media
coverage. The broad media coverage ensured that others in the illegal logging community
were aware of the increased enforcement efforts. In addition, the media coverage raised
public awareness of the extent and environmental consequences of illegal logging. Oplan
Jericho could, perhaps, be considered the turning point of public awareness in the campaign
against illegal logging in the Philippines. Unfortunately, many subsequent phases of the
enforcement campaign gained no publicity at all. Because of the lack of preparation and
budget in this aspect of the operations, certain scenes that would have delivered a dramatic
impact were not recorded in still or in moving pictures: rappelling down from a helicopter in
the middle of the sea to arrest a boat, the airborne landing team in Isabela, and the bold
braking of doors in Butuan. In addition, the National Steering Team follow-up meetings did
not receive any media coverage.
This narrative focuses solely on the legal enforcement effort. Law enforcement
cannot exist in a vacuum. It must not only be supported by governmental authority, but also
by the local community and the public at large. This is possible only when the community
is sufficiently aware of the importance of the campaign and is ready to support it. Educating
the public on environmental issues is another reason to why media coverage is so important.
Publicizing environmental campaigns and enforcement actions can provide a valuable
opportunity to educate the public.
Another lesson to be learned is that in a highly personalistic society such as the
Philippines, institutional efforts must be coupled with the development of personal relations
by and among the players. There needs to be a 'champion' who has the leadership qualities
and charisma to rally the different forces of government. He or she can be an NGO member,
or better yet, a person who is clothed with official authority. If that champion is gone, the
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240 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
institutional efforts are bound to falter. With a new management team at the helm of the
Department of Environment and Natural Resources, a meeting between the Secretary and
the Legal Team (of the Department of Justice, National Bureau of Investigation and the Office
of the Solicitor General) is being arranged. Hopefully, the Department of Environment and
Natural Resources Secretary can now assume the lead, and, with official authority in his
hands, make things move forward.
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WORKSHOP 3C: CITIZEN ENFORCEMENT 241
WORKSHOP 3C
CITIZEN ENFORCEMENT
Discussions built on papers published in prior proceedings of the International Conferences.
In addition, discussions benefited from a new capacity building support document on the
subject of "Citizen Enforcement" which was commissioned for the Fifth Conference and which
pulls together all the materials developed to date.on the issue. This workshop sought to build
upon the list of recommendations for public role in environmental enforcement developed by
participants at the Fourth International Conference focusing in this workshop on the citizen
as "enforcer" as distinguished from workshop 2B which examined the public role in promoting
and monitoring compliance.
6. Summary of Workshop Discussion, Facilitators: J. Bonine, S. Kravchenko,
M. Merita; Rapporteurs: M. Axline, S. Casey-Lefkowitz 243
7. Broadening "Standing to Sue" for Citizen Enforcement, Bonine, John E. 249
8. Legal and Institutional Constraints to Public Interest Litigation as a
Mechanism for the Enforcement of Environmental Rights and Duties in Kenya,
Odhiambo, Michael Ochieng 265
Papers 1 - 5 for Workshop 3C and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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242 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 3C CITIZEN ENFORCEMENT 243
SUMMARY OF WORKSHOP: CITIZEN ENFORCEMENT
Facilitators: Workshop 3C: Svitlana Kravchenko, John Bonine
Workshop 3CC: Mahesh Mehta
Rapporteurs: Workshop 3C: Susan Casey-Lefkowitz
Workshop 3CC: Michael Axline
GOALS
Discussions were designed to address the following issues:
Mechanisms used to empower citizen enforcement: what authorities exist in
different countries and how this authority has been exercised to provide for a
citizen role as private enforcer of environmental law, including:
- Citizen ability to bring enforcement cases (standing and other issues).
- Citizen ability to ask for review of government decisions.
- Remedies available to citizen enforcers.
How these provisions are working and what impediments exist to realizing their
potential; how such provisions can be supported and encouraged in countries
without this citizen authority.
Relationships that might be established between governmental agencies
mandated to enforce requirements and citizens empowered to enforce the law
and what are the advantages and disadvantages of different relationships.
Citizen role as support to government enforcement efforts, including:
- Government cooperation with citizens during enforcement proceedings.
- Citizen ability to join government enforcement efforts.
- Citizen review of government and violator settlements before they are
finalized.
How these kinds of opportunities for cooperation and support are working; what
impediments exist to realizing their potential.
"Meaningful access to information" and how important a role it plays as a
prerequisite to effective citizen enforcement, including:
- Access to monitoring information as discussed at earlier workshops.
- Access to other relevant government-held information.
- Access to information concerning government enforcement efforts.
- Access to privately-held information.
What would be needed to move countries in the direction of the set of citizen
participation opportunities identified at the Fourth International Conference.
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1 INTRODUCTION
Citizens around the world understand the importance of compliance and
enforcement. Citizen goals are similar to government goals: to protect the environment
through achieving compliance. Citizens also believe in the use of enforcement strategies to
deter and punish when necessary. Citizens believe that they can contribute in an effective
manner to this common goal of protecting the environment through achieving compliance
among the regulated community and through holding the government accountable for
implementing and enforcing the law. However, although in theory citizens in many countries
have a range of options available to them from citizen enforcement suits in court to negotiation
and lobbying, in practice, government enforcers often are wary of citizen enforcement efforts
and citizens face this and other obstacles in their initiatives.
2 PAPERS
A Capacity Building Support Document was prepared by the Conference sponsors
on Citizen Enforcement: Tools for Effective Participation with international examples. The
document includes discussion on and examples of a range of approaches and tools for citizen
enforcement from both the government and citizen perspective.
Papers related to this workshop include:
Citizen Environmental Enforcement in Russia: The First Successful Nation-
wide Case, V. Mischenko and E. Rosenthal
Environmental Compliance and Enforcement through Public Litigation in the
Godavari Area in Nepal, N. Belbase
Civil Enforcement of Environmental Laws in Australia, J. Johnson
Public Interest Environmental Litigation: A Tool to Ensure Compliance and
Enforcement, E. Habib
Finally, a cooperative coordinated approach is needed between affected programs
like the police, the environment agency, prosecutors, fire and hazardous materials teams.
Defining roles, responsibilities and assigning accountabilities is essential.
In addition, the Proceedings of past International Conferences on Environmental
Compliance and Enforcement contain a wealth of papers on the role of citizens in
environmental enforcement from the perspective of various countries. A full list of these papers
is appended to the Capacity Building Support Document.
3 DISCUSSION SUMMARY: WORKSHOP 3C
3.1 Common Issues in Citizen Enforcement
Many of the participants acknowledged the important role that the ability of a citizer
to go to court to enforce the law plays in overall environmental compliance and enforcemen-
efforts. Limited standing to enforce the law in court was identified as a common barrier tc
the use of this tool. Many participants also wanted to explore how citizens could participate
in environmental enforcement beyond the use of the courts and litigation. They acknowledgec
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WORKSHOP SUMMARY: 3C CITIZEN ENFORCEMENT 245
the many obstacles to effective citizen enforcement and identified a need to develop tools
to strengthen citizen enforcement, including the implementation of the new Convention on
Access to Information, Public Participation, and Access to Justice in Environmental Matters.
3.2 "Standing" for Citizens to Sue in Court to Enforce the Law
The participants discussed the diversity of the aspects of standing among the
different countries represented in the workshop. In some countries, standing to enforce the
law is granted exclusively in civil cases, while in other countries, standing to enforce the law
is more common (at least in theory) in criminal cases. Citizens also derive the right to go
to court to enforce the law from both constitutional sources and statutory sources. Finally,
participants noted the role of the ombudsman in representing the public interest and in some
cases, in facilitating standing.
Criteria for being granted standing also differ greatly from country to country. Some
participants described standing based on actual damage to the plaintiff, while other
participants described standing based on violations of procedures, such as public hearings
that affected the public. Many participants identified the need to have sufficient proof of harm
and causation before standing would be granted and some participants described a system
. where the Attorney General allowed only cases concerning personal injuries to go before the
court, on the theory that only the Attorney General can represent the public interest.
The trends described by the participants showed growing limitations on standing
in some countries and broadening standing in others. Yet other participants described a lack
of consensus among national courts in interpretation of standing rules.
Finally, the group agreed that broad standing is at the core of citizen enforcement
To facilitate future broadening of standing, the group identified the following needs:
Solutions to the current burden on citizens to show harm and causation.
Greater access to justice in domestic courts.
Greater access to justice in international forums.
• Access to courts in the country where the violator originates.
Law reform for clearer citizen enforcement provisions.
3.3 Non-Court Alternatives for Citizen Enforcement
Most participants saw citizen enforcement in court as an "end of pipe" solution to
lack of enforcement or severe violations. In addition, participants noted the importance of
alternative citizen enforcement mechanisms for times when the option of going to court is
not the most appropriate to deter or halt a violation. Participants identified the following citizen
enforcement strategies:
Direct action, such as boycotts and blockades.
• Use of public opinion and mass media.
Participation in negotiations, for example of compliance agreements or
settlements.
Lobbying for law reform and for stronger measures to deter or halt violations.
Public access to information to raise citizen awareness.
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246 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Pursue the funding source for projects with violations, for example through
international financial institution complaint processes.
Provide citizen complaint mechanisms, such as hotlines and green
telephones.
3.4 Potential for Citizen and Government Cooperation in Enforcement Efforts
Many participants noted that government enforcers and citizen "enforcers" did not
usually work closely together. The group identified a number of reasons for government
enforcers to take advantage of citizen enforcement efforts, including heightened public
support of government enforcement efforts, additional resources to government enforcement
efforts (e.g., citizen monitors and inspectors), and achievement of environmental protection
goals through improved compliance and enforcement.
The group also identified how citizen and government enforcers might work more
closely together, including through:
Coalitions or working groups to approach compliance problems.
Adding citizen knowledge and public pressure to compliance or settlement
negotiations.
Providing greater public access to information about how to participate, as well
as environmental information, such as discharge reports, monitoring data, etc.
Direct communication among citizens and government enforcers.
Delegation of certain monitoring and inspection tasks to citizens, for example
in nature reserves.
3.5 Obstacles and Solutions
Common obstacles and solutions were identified by most of-the participants,
including a lack of funding, that citizens often do not know what their options are, institutional
barriers in the judicial review process, the need for laboratory analysis and other scientific
testing without technical and financial resources, a judiciary uninformed about environmental
law, and a long judicial review time.
Common solutions for the future were also identified, including:
Improved public access to information.
Clear environmental standards, to ease the burden of proving harm and
causation.
Quicker judicial processes, including a judiciary well-informed about
environmental law.
Broad standing for citizens to go to court to enforce the law.
3.6 Public Participation Convention
Finally, the participants discussed the elements of the new Convention signed in
June 1998 by the UNECE on the three principles pillars of public participation: access to
information, public participation in decision making, and access to justice in environmental
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WORKSHOP SUMMARY: 3C CITIZEN ENFORCEMENT 247
matters. Participants from outside the UNECE region expressed an interest in seeing their
countries join the Convention, while participants from the UNECE region expressed an interest
in seeing accelerated implementation of the Convention.
4 DISCUSSION SUMMARY: WORKSHOP 3CC
4.1 Improving Workshop Relationships Between NGOs and Regulatory Agencies
We identified a set of problems and discussed possible solutions to these problems.
4.1.1 Problems
The participants felt that problems preventing better relationships between NGOs
and regulatory included:
agency personnel taking criticisms of the agency itself personally;
NGOs who cooperate with regulatory agencies being accused by their
colleagues of "selling out;"
• intolerance of opposing or differing views;
excessive centralization of decision-making (so that field personnel who work
more closely with NGOs can't make decisions);
agencies viewing their role as helping industry, rather than regulating industry;
and
a reluctance by agencies to voluntarily share information with NGOs.
4.1.2 Solutions
The participants felt that solutions to these problems would have to include teaching
more tolerance for discord, understanding the value of debate, dialogue and criticism as a
process for developing better solutions to environmental problems, more recognition of the
common environmental goals of regulators and citizens, a better understanding on the part
of regulatory agencies of how citizen enforcement can make industry appreciate regulatory
agencies, and more personal accountability within agencies.
4.2 Making Citizen Enforcement More Effective
4.2.1 Education
The participants felt that to be effective, citizen enforcement efforts should be part
of a larger comparison to educate legislation, the public and regulatory agencies about the
environmental problem being addressed through citizen enforcement.
4.2.2 Funding
The participants discussed various methods of funding citizen enforcement actions
and agreed that funding is important for such actions.
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248 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.2.3 Accountability for Multi-National
The participants also discussed that need for citizen enforcement actions to be able
to hold multi-national corporations accountable in their home countries, and cited two
examples of international instruments that recognized this principle:
the North American Agreement on Environmental Cooperation; and
the 1997 Convention on Uses of Transboundary Waters.
4.2.4 Access to Independent Scientists/Technical Experts
The participants recognized a need for more good and independent scientists to
provide technical expertise and testimony in citizen enforcement actions, and a need for
NGOs to participate from the beginning in the environmental laws and regulations, training
judges, and developing a regulatory infrastructure in which citizen enforcement efforts can
succeed.
5 CONCLUSION
Citizen participation in enforcement is an important part of a country's
environmental compliance and enforcement strategy. Citizen enforcers have some tools
available to them, but there is much further to go in creating opportunities for effective and
useful citizen enforcement efforts that succeed in achieving the common goal of
environmental protection.
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BONINE, JOHN 249
BROADENING "STANDING TO SUE" FOR CITIZEN ENFORCEMENT
BONINE, JOHN E.
Professor of Law, School of Law, 1221 University of Oregon, Eugene, Oregon 97403
USA
The law, in its majestic equality,
forbids the rich, as well as the poor,
to sleep under the bridges,
to beg in the streets,
and to steal bread.
— Anatole France 1
1 INTRODUCTION: EQUAL ACCESSTO JUSTICE
The worldwide move toward citizen enforcement of environmental laws and obligations
is one of the most striking contributions that environmental law has made to civilization
worldwide at the end of the 20th century. In the field of environmental enforcement societies
all over the world are broadening the possibilities for citizen enforcement of the rule of law
That movement has grown so that it is impossible to think of modern environmental law
without it.
Widespread access to justice is more likely to result in equal justice Of course
inequalities will always exist. Those with power and resources will always have a bigger effect
on governmental and private decisions than those lacking power and resources But this
inequality is magnified where access to courts is restricted, because restrictions are less
likely to affect powerful economic interests. They easily have access to the courts As a
result, they are treated with respect by government officials. Citizens and their organizations
often do not have such equal access to justice and the effect is felt not only in the courts
but in other governmental bodies as well.
The question of whether a citizen may enforce a statutory (or constitutional)
obligation when a fellow citizen or government official is disregarding that obligation is labeled
in many countries "standing to sue" or locus stand? The traditional law of standing in many
countries, "m its majestic equality," forbade corporations as well as citizens to sue the
government unless they had direct economic "injury," or "invasion of a legal right" (or were
aggrieved" or had "interests affected" by a governmental action, or perhaps more moderately
a sufficient interest," — whatever term happens to be in vogue for "standing") This
purportedly neutral rule had the effect of usually letting business interests into court while
often keeping other members of civil society out of court.
The battle over expanded standing to sue is not, in short, about whether everyone
should have access to justice. Those with money and power already have access The battle
over standing to sue is about whether other citizens will have access as well. If democracy
is for all, if the rule of law is for all, and if justice is for all, then standing should be for all To
put it in the proper order, where standing is available to all, democracy, the rule of law and
justice are more likely to be for all. w, a iu
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250 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In my view, increased "access to justice," as the movement for broader standing is
sometimes loosely tabled, is an important component in building an application of rule of law
that is applicable to the powerful as well as to the weak. Such an equal rule of law helps build
civil society. It provides an essential element of participatory democracy.3 By stressing
communitarian values, the movementto broaden legal standing will provide important societal
restraints on the rampant individualism that accompanies enhanced economic development.
By stressing the importance of compliance with duties and not only rights, this expansion
of the ability to sue will paradoxically build a stronger framework for the protection of individual
r'9 S Three approaches to granting standing are judge-made standing law, constitution-
based standing, and legislation-based (statutory) standing categories which I find transcend
different cultures and legal systems4.
2 JUDGE-MADE STANDING LAW
2.1 England
As the home of Common Law, it is perhaps appropriate that much of the early
judiciary-led movement to grant access to the courts occurred in England. The changes that
took place starting in the early 1970s appeared so dramatic that one American scholar even
stated:
"The House of Lords has all but eliminated the standing requirement, virtually
converting the [judicial] review action into an actio popularis, which is available
to any citizen who seeks to annul improper administrative action.... [Tjhere has
been nothing comparable in the case law on this side of the Atlantic.5"
The above quote may seem an excessively ambitious interpretation by someone
from the outside, but it may not be far off the mark, at least at the level of theory, if not
necessarily in actual practice.
The revolution in the law of standing can be traced both to the work of Lord Denning
in the 1970s and to a revision in the procedure for judicial review of administrative actions
in England Order 53 came into force in January 1978, based largely on the recommendation
of the Law Commission. The Commission took the position that a single, unified procedure
for judicial review would be preferable to the time-encrusted and sometimes confusing system
of "prerogative writs." It indicated that the law of locus stand! should be liberalized as well.
In Order 53 the issue for judicial review became no longer whether a person was "aggrieved.
Instead review would be premised on a party having a "sufficient interest" in the matter sought
to be litigated. The Order was given statutory grounding in Section 31 of the Supreme Court
Act 1981 6
The new formulation, "sufficient interest," might still have been interpreted as
restrictively as "person aggrieved" had been in the past. That is, the change might have beer
viewed as not intended to create a more liberalized, uniform rule of standing.7 But any time
that the applicable words change there is also the opportunity for a change in doctrine as
well The House of Lords subsequently decided what to do with locus standi in light of Ordei
53 and section 31 of the Supreme Court Act in Inland Revenue Commissioners v. Nationa
Federation of Self-Employed and Small Businesses 8 (known as the Fleet Street Casuali
case) Reversing its-position of four years earlier in a case known as Gounet,9 the Law Lord!
ruled that a group of taxpaying small businesses could sue the tax authorities in a complain
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BONINE, JOHN 251
against what the authorities were doing with regard to a different group of taxpayers. Since
the argument that these small businesses were specially damaged or "aggrieved" in a way
different from other taxpayers could hardly be made while keeping a straight face, the ruling
.in the Fleet Street Casuals case became the basis for, in essence, accepting Lord
Denning's view of dramatically lowered locus stand! bars in English jurisprudence.
While Fleet Street Casuals could, indeed, be viewed as signaling a new day of "open
standing" in important public-interest cases, such hopes were soon dashed in the Rose
Theatre case.10 The Rose Theatre will be familiar to those who have seen the motion picture
Shakespeare in Love during the current 1998-99 season, for the action largely takes place
in the Rose. During construction in the center of London in the late-1980s, a contractor
digging a foundation struck the remains of the Rose Theatre. A group of citizens, scholars,
and actors concerned with historic preservation, the Rose Theatre Trust, sprang up to defend
this important archaeological find from destruction. The court ruled, however, that this group
lacked the requisite locus stand! because of what the court viewed as a lack of "sufficient
interest." In order to have standing, individuals must show a greater "interest" than that of
the rest of the public, according to the decision. The fact that the members of the Rose
Theatre Trust were distinguished scholars and actors who had devoted their lives and careers
to Shakespearean work was not enough to show that greater "interest."
Rose Theatre has been aptly termed the "low point of the standing issue" in recent
English jurisprudence.11 Very recently, a series of decisions has started to expand the right
of legal standing again, at least in environmental cases. The environmental group
Greenpeace was granted standing in the Thorp case to challenge a proposed license for a
nuclear power plant. The High Court said that Greenpeace was a "responsible and respected
body with a genuine concern for the environment" (recognizing, in a sense, standing as being
conferred on the basis of ideological commitment, plus some efforts to follow up on such
commitment) and that granting them standing to pursue the litigation would save the court's
time. They would efficiently and effectively represent the interests of 2,500 of its supporters
living in the area of the proposed nuclear plant. This may be seen as a kind of
"representational standing," or perhaps "third party standing," in lieu of others who truly would
have had traditional standing.12 Judge Otton said:
"I reject the argument that Greenpeace is a 'mere' or 'meddlesome busybody.'
...I regard the applicants as eminently respectable and responsible and their
genuine interest in the issues raised is sufficient for them to be granted locus
standi."13
A recent English decision in 1997, Ex parte Richard D/xon,14 continued the
liberalization, and continued the exposition of the viewpoint that public law is about duties,
not rights. Justice Sedley wrote:
"Public law is not at base about rights, even though abuses of power may and
often do invade private rights; it is about wrongs — that is to say, misuses of
public power; and the courts have always been alive to the fact that a person
or organization with no particular stake in the issue or the outcome may, without
in any sense being a mere meddler, wish and be well-placed to call the attention
of the court to an apparent misuse of public power..."
The contest in England between those seeking to eliminate most barriers to
standing and those seeking to re-erect them is not yet decided. It is apparent, however, that
judges do feel free under Order 53 and the Supreme Court Act to liberalize standing. This
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is based on a recognition that the term "sufficient interest" is consciously designed to permit
them to do so in appropriate cases. Standing is seen as a matter of mixed legislative and
judicial policy, with the judges having the discretion under the new language to permit far
broader standing than had been possible in England in the years immediately prior to 1980.
2.2 Argentina
In Latin America, the issue of broadened legal standing-to-sue, on behalf of those
whose personal interests are not injured in a traditional way, but instead who assert "public
interest" (for example, the interest of protection of the environment), has largely been put
under the title of "intereses difusas," or "diffuse interests." Usually the basis of diffuse
interests is statutory or even constitutional. But judges have on occasion stretched the
notion of judicial interpretation to find justification for "intereses difusas."
In Argentina, the late Dr. Alberto Kattan won some pioneering cases broadening
standing for environmental cases for all of Latin America. The basis of his arguments relied
upon Article 33 of the Argentine Constitution which protected his own human rights, and
principles of ancient Roman Law that as a citizen he had a duty to protect the "dominio
publico." Although such principles may still be 3pplicable in Argentina; the success of Dr.
Kattan's arguments depended significantly on a receptive judiciary.
In 1981 Dr. Kattan's seminal case utilizing these arguments was an "accion difusa"
to protect penguins, but it failed. Two years later in Kattan v. Federal State (Secretary of
Agriculture) (1983), Alberto was granted the right to sue the Government of Argentina to
challenge a permit that authorized a Japanese company to hunt and capture six dolphins
(members of an endangered species). Again, he argued the case on the basis of Roman
law. Similar arguments were developed by Dr. Kattan in cases successfully banning
pesticides (specifically Agent Orange), prohibiting tobacco advertising on the grounds that
tobacco is a toxic substance, and prohibiting pharmaceutical sales in Argentina that are
prohibited in the country of origin.15
In a case similar to the Rose Theatre case in England, Kattan persuaded a court
to block destruction of an architectural masterpiece, a mansion whose picture graced the
cover of the standard architectural history of Argentina. The Hyatt Hotels Corporation sought
to send in the wrecking balls in order to build a high-rise hotel on the site in Buenos Aires.
When Kattan took the case to court, he made an argument that placed the hotel in realm
of a sacred national treasure, part of the patrimony of the nation. He told the court, "Everyone
has a right to buy a painting by Van Gogh. But nobody has the right to wrap fish in it."18 The
propriety of such environmental actions is not yet settled in Argentina, but the path has been
blazed in some cases. The future depends upon the courage and creativity of Argentine
judges as well as a new generation of lawyers, for Alberto Kattan is no longer on the scene -
to press the issue. He died in 1993 as a result of the delayed effects of the electro-shock
torture that the military dictatorship had visited upon him in the late 1970s, when he became
for a while one of the "disappeared."
3 CONSTITUTIONAL LAWTO LIBERALIZE STANDING
The constitutions of many countries form the basis of increased access to justice.
Sometimes these constitutions are explicit in their locus stand! provisions. For example,
in Colombia, the 1991 Constitution explicitly states in Article 88 that anyone who has a
"collective right" can sue to protect it. Other constitutions state forms of actions (such as
amparo in Costa Rica and Peru, or recursode proteccion in Chile) that have been interpreted
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to allow acetones populares (popular actions by any citizen). In other instances courts have
found that the constitution embodies implied rights of access to justice. Examples" of both
explicit and implicit provisions will be presented here.17
3.1 Explicit Provisions in Constitutions
Some of the more interesting recent decisions have tossed aside old restrictions
on standing because the courts became persuaded that amendments to their nation's
constitution required broadening of standing to sue. Some of the amendments appear to
address standing in so many words, while some do so only indirectly.
3.1.1 Nepal
Like its nearby neighbors in South Asia, Nepal has embarked on a jurisprudence
of widespread citizen enforcement of laws, particularly on issues involving constitutionality
Nepal has done this through explicit provisions in its constitution. Article 88(2) of the
Nepalese Constitution provides that the Supreme Court of Nepal shall have the extra ordinary
power to issue necessary and appropriate orders to protect rights in suits of "public interest
or concern."18
As one U.S. scholar has noted, under the Nepal Constitution, any citizen may
petition the courts, "not only someone harmed under the law in question or some designated
office holder or holders . Few issues are likely to escape the scrutiny of a Court with such
wide open standing requirements."19
In LEADERS v. Godavari Marble Industries Private Ltd., Ministry of Industry Dept
of Mines and Geology, Cabinet Secretariat,,20 the Supreme Court of Nepal said that "as
environmental conservation is indirectly related with life of the human being, this matter is
included in Art 12(1) of the Constitution of the Kingdom of Nepal 1990." Specifically regarding
standing, it said, "As the present constitution has established public interest as a
fundamental right, whether the petition has locus stand! is no more an issue." Actually the
LEADERS case could be categorized as one of "implicit" constitutional provisions, for it
grounded standing for the protection of the environment on a "right to life" that was not written
3xplicitly into the Constitution, but that was inferred from various other rights found there.
3.1.2 Botswana
Constitutional provisions such as the one'mentioned above are not limited to South
^Slan countries. Section 18(1) of the Botswana Constitution, allows any person who alleges
a violation of the Constitution to apply to a court for redress. In Attorney General v Unity
Dow, the Botswana Court of Appeal held the Citizenship Act of 1984 unconstitutional. The
Attorney General had challenged the standing of the woman who brought the lawsuit who
was seeking to assert the rights of her children. He argued that the Roman doctrine of actlo
oopularis, which gives individuals the right to sue in the public interest, was not part of Roman-
Dutch common law, which Botswana had inherited as part of its legal system. Judge
Resident Amissah relied on section 18(1) of the Constitution for part of his holding
According to a report of the case,
He stated that this provision gives broad standing rights and should not be whittled
down by principles derived from the common law, whether Roman-Dutch English or
Botswanan.21
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The court also found that the mother suffered injury if her children's rights were
limited,22 and stated that a person who is injured can also "protect the rights of the public,"
citing precedent from South Africa to that effect.23
3.2 Implicit Provisions in Constitutions
An even more interesting basis for the broadening of standing on a constitutional
basis has been those countries whose constitutions do not appear to address standing as
such, but in which seemingly substantive constitutional norms have been used to grant the
procedural right of access to the courts.
3.2.1 India
India has long been a leader in finding standing rights implicit in a constitution. The
Supreme Court of India has largely abolished restrictions on legal standing in cases that it
is willing to recognize as "public interest cases." Other countries in South Asia have followed
this approach although to a lesser degree.
The Constitution of India does not explicitly refer to standing, but both judicial policy
and certain provisions of the Constitution have been used as the basis for a dramatic change
in the law of standing in India. The Supreme Court of India decided in 1982, after some
preliminary movement toward liberalized standing, that the legal system should no longer
be a system for "men with long purses."24 The dramatic breaking down of barriers to legal
standing has been premised in part upon the reasoning of the judges and in part on the mere
existence of fundamental rights provisions in the Indian Constitution (not special provisions
directly relating to legal standing).
The watershed case for standing is known as the Judges' Transfer Case.25 The
Supreme Court ruled that bar associations of lawyers had the right to sue against transfers
of judges during the "Emergency" that had been declared by Prime Minister Indira Gandhi
— even though none of the lawyers would actually suffer economic harm from loss of clients
by having different judges hear their cases than those originally assigned to a given court.
There were a number of opinions, totaling 600 pages, quoting from law journal scholarship
and cases from several nations. Amongst the opinions, Justice Bhagwati, who hac
previously served on a Law Reform Commission that called for looser standing rules, declarec
that "any citizen who is acting bona fide and who has sufficient interest has to be accordec
standing." Lawyers, who as a profession seek to preserve people's faith in the legal system
were such a group, he decided. He stated that a "public-minded person" or organization cat
act directly in the Supreme Court "even though they may not be directly injured in their owr
rights."
In a later case the Supreme Court of India wrote explicitly about how it understooi
the role of the courts in the social and economic reality of India and in the face of "publi'
interest litigation" to be different from courts in ordinary litigation:
"In a public interest litigation, unlike traditional dispute resolution mechanisms,
there is no determination or adjudication of individual rights. While in the ordinary
conventional adjudications the party structure is merely bi-polar and the
controversy pertains to the determination of the legal consequences of past
events and the remedy is essentially linked to and limited by the logic of the
array of the parties, in a public interest action the proceedings cut across and
transcend these traditional forms and inhibitions.25"
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BONINE, JOHN 255
Lawyers have even been regularly recognized as entitled to act themselves as both
petitioner and attorney, on behalf of a public interest. For example, M.C. Mehta has sued
in his own name to have hundreds of children released from jails; to prevent employment
of children in dangerous match factories,27 to protect the Taj Mahal from air pollution- and
to clean up the length of the Ganges River from industrial and municipal pollution 2a among
many other cases. In another of his many cases the Supreme Court of India has ruled that
any citizen could sue to remedy harm from a leak of chlorine gas.29
Similarly, law professors and lawyers have filed cases on behalf of mistreated
mentally ill women,30 journalists have sued on behalf of women in the Bombay Central Jail31
and suits by motivated citizens have sued to protect orphans being sent abroad for adoption
and possible enslavement.32
The Supreme Court of India has set an example to courts and lawyers around the
world of how a legal system can take an entirely new look at enforcement of the rule of law
It has simply set aside restrictions on access to the courts that had theretofore been
accepted almost without thinking among the lawyers of that society. I recall discussing the
dramatic developments of the law of standing in India with a private lawyer acting mostly for
industry, during a sabbatical visit in 1987. He confidently predicted that, with a change in
the membership of the Supreme Court of India, standing would soon return to the more
comfortable and traditional categories with which he was familiar. In fact, however each
succeeding generation of judges have gained self-confidence in the work of their Court as
blazing new trails for public-interest litigation. The Court has established a special office just
to process public-interest petitions and has, to a remarkable degree, used its powers in the
environmental area to stimulate action by the world's most bloated and reluctant bureaucracy.
3.2.2 Tanzania
The influence of India's progressive stance towards interpreting its constitution has
extended beyond the Asian continent into Africa. An amazingly comprehensive and
progressive court opinion was issued in Tanzania by the High Court at Dadoma in 1993 In
Mttkila v. Attorney General,,33 the court made a survey of standing law in England, Nigeria
India, and elsewhere and then stated rules for standing in Tanzania. It concluded:
"In matters of public interest litigation this Court will not deny standing to a
genuine and bona fide litigant even where he has no personal interest in the
matter [Standing will be granted on the basis of public interest litigation
where the petition is bona fide and evidently for the public good and where the
Court can provide an effective remedy."
After discussing the social conditions of Tanzania, the history of one-party politics
and repression such as detention without trial, the court said further:
"Given all these circumstances, if there should spring up a public-spirited
individual and seek the Court's intervention against legislation or actions that
pervert the Constitution, the Court, as guardian and trustee of the Constitution
and what it stands for, is under an obligation to rise up to the occasion and grant
him standing."
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This case may well be little more than a straw in the wind of standing jurisprudence
in Tanzania. Future cases will determine whether other judges are willing to follow its lead
and the example of the Indian judges. But it is at least remarkable that some judges are
willing to take a risk in nudging their legal system toward the kind of open standing suggested
by this case.
4 STATUTORY LAW
It is perhaps in the realm of statutory expansion of access to justice that the greatest
diversity in approaches exists.
4.1 Europe
In Europe, Parliaments have increasingly granted groups with registered interests
the right to participate in legal actions related to their interests. For example, in Italy, Articles
13(1) and 18(5) of Law No. 349 of 1986 give environmental associations the right to sue in
administrative courts if they have been recognized for this purpose in a ministerial decree.34
This model is also mirrored in Germany. Although the German federal government has
occupied a special, extraordinary conservative, position in legal doctrine concerning locus
stand! for some time, the Lander, or States, have been notably more progressive and open
toward granting standing to sue, particularly for established environmental nongovernmental
organizations (NGOs).
In the Netherlands legislation has taken a slightly different statutory track, following
the model of allowing "anyone" to participate in the consultation process with a public
authority, and then affording anyone who has lodged objections at the consultation stage
the right to ask a court for judicial review of the decision. Seethe 1994 General Administrative
Law Act's (GALA'S) Title 3.5, "Extended Public Preparation Procedures."35 Additionally, the
Netherlands also extends standing to NGOs in civil law suits much like Italy or the German
Lander.*6
4.2 The United States
In the United States, statutory provisions in federal and state laws regarding standing
to sue in specific legal contexts has generally been quite progressive. Many environmental
laws contain provisions granting access to the judicial system. However this is being
affected by some regressive constitutional standing requirements recently created by the
United States Supreme Court.37
4.2.1 Statutory Expansion of Standing in the U.S.
Lawsuits against U.S. federal government agencies can be brought under the
Administrative Procedure Act, the Freedom of Information Act, under "judicial review" sections
of every environmental statute, and under the "citizen suit" provisions that exist in most
environmental statutes. Lawsuits against State and Federal government agencies proceed
under many similar statutes. The statutory provisions for standing range from broad
authorization for "any person" or "any citizen" to file certain suits to narrower requirements
that a potential litigant be "adversely affected" in some way. The broader provisions for
statutory citizen enforcement suits under most environmental laws generally also apply in
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BONINE, JOHN 257
:ases against government agencies. These "citizen suit" provisions first appeared in modem
U.S. environmental laws with the Clean Air Act of 1970, but forerunners appeared in early
U.S. histrory and even in England as long as 700 years ago.
Famed American administrative law scholar Louis Jaffe showed through historical
'esearch published in 1961 that "the public action —an action brought by a private person
orimarily to vindicate the public interest in the enforcement of public obligations — has long
seen a feature of our English and American law."38 In 13th Century English law, anyone could
sue on behalf of the king.39 In the 14th Century, "popular actions" (or qui tam40 actions) could
ae prosecuted by any citizen. If a fine were levied, it would be divided between the king and
:he private prosecutor.41
This practice was still in effect at the time the United States of America was founded
n 1787 and for the first 50 years nearly all criminal prosecutions were brought by private
ndividuals. Qui tam actions, also known as "informers' suits," were authorized in early
egislation of the new U.S. Congress. For example, the Trade and Intercourse Act of 1793
arohibited encroachment on Indian lands and provided that private prosecutions could be
nitiated. Half of the recovered penalty would go to the citizen who filed the prosecution.
Moreover, informants' suits, "called, as Blackstone says, "popular actions, because
:hey are given to the people in general,'"42 were the pre-twentieth century counterpart of citizen
suit provisions in environmental statutes.43
In the field of environmental law, qui tam statutes were enacted in the U.S.A. as long
ago as in the Refuse Act of 1899, under which citizens could sue private parties who violated
:he Act. They were to be awarded 50% of any fine levied fay a court.44 Private citizens
;hoosing to act as "bounty hunters" were authorized by law throughout the 19th Century to
arrest and bring in criminals, leading to several Hollywood movies dealing with the practice.45
3rivate bail bondsmen have this right today in most States of the U.S.A.
*-2-2 Recent Judicial. Limitations on Standing in Statutory Law in the U.S.
While the U.S. Congress has made strong efforts to expand standing for all persons
jnder many environmental laws,48the U.S. Supreme Court, has made equally strong efforts
n recent years to cut back that expansion, making claims of "unconstitutionality." The
jltimate outcome of this tug-of-war is uncertain. Several State legislatures have also
3xpanded standing widely, sometimes with a better fate far their legislation in the State courts
hat what is now happening with U.S. statues in the U.S. Supreme Court.
Remarkable developments in recent years position the United States as one of a
landful, at most, of countries where the Supreme Court is starting to assert the power to
•eject efforts by the democratically elected legislative branch of government to specify who
nay bring lawsuits to court — that is, who may have access to justice.
In 1970, at the same time that Congress was broadening standing, the Supreme
Dourt did the same. The Supreme Court interpreted the federal Administrative Procedure
\ct (APA) of 1946 in a new manner, essentially attempting to allow persons to sue federal
agencies without first finding a specific "legal right" to sue in some specialized statute. It
fid so by reading the Administrative Procedure Act to allow persons who have actual "factual
njuries" to sue, without having to have a "legal injury."47 This was subsequently extended
o include various intangible injuries, including aesthetic injuries to environmental groups.48
But what had been designed by a liberal Supreme Court initially to liberalize standing
was soon used by ascendant conservatives to cut it back. To put it another way, the use
)f a judicial sword by one group of Justices to attach apparent legislative restriction on
standing soon gave way to the use of the same "injury of fact" sword to attack legislative efforts
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that expanded standing. For this to happen, the doctrine was changed from being an
interpretation of the APA to one of the Constitution. The doctrine of factual injuries — or
"injury in fact" — then was used not merely as a sufficient basis for a court to recognize
standing, but as a necessary basis, without which the legislature would have no authority
to allow standing. Since the identification of an "injury" was now in the hands of the judges
and tabled "constitutional", they were then free to define injury in narrower and narrower terms,
harking back largely to Nineteenth Century notions of rights and law. Unless an injury
satisfied the judges, the legislature was powerless to grant standing.
Among the strongest influences leading to the constitutional shrinkage of the right
of standing (and rights of the Congress) in environmental law has been Justice Antonin Scalia.
He is a former law professor, who disclosed in a 1983 law journal article his intense dislike
for law suits brought by public-interest environmental lawyers. He wrote at that time, before
his appointment to the federal courts, that it was desirable to put an end to the federal
judiciary's "love affair with environmental litigation."49 At the time of Justice Scalia's
appointment, one commentator predicted what would happen to the law of standing under
him: "Scalia has advocated a position on standing that could severely limit the ability of
litigants to obtain judicial review where they allege an environmental injury."50
When Justice Scalia joined the Supreme Court, the tools for ending public interest
law suits were already at his disposal. First, Supreme Court jurisprudence since about
196851 had been viewing standing-to-sue as (to quote the title of then-Professor Scalia's law
review essay), "an Essential Element of the Separation of Powers."52 Second, the Court
had asserted since 1970 that standing turned to a large degree on "injury"53(although largely
as a statutory matter). Third, the jurisprudence transformed "injury-in-fact" (as compared to
injury "in law") into a constitutional requirement since about 1973.
If someone were so inclined, standing doctrine could be used in ways that one
scholar has called "Machiavellian."54 After surveying most of the scholarly commentary on
the Supreme Court's standing jurisprudence as of 1993, one young scholar concluded, "There
is virtual unanimity among constitutional law scholars that the Court's public action analysis
is seriously flawed."55
The current membership of the nation's highest Court has achieved a modification
of legal doctrine regarding access to justice and the Constitution56 in the face of unrebuttec
research by a number of legal scholars demonstrating that the basis for their constitutional
interpretations is ideology riding under the colors of history.57 No scholars seem to have
argued to the contrary.58 The historical research has shown that the basis for this
"Constitutional anti-standing" doctrine is thin at best and intellectually questionable at worst
The research has shown that the better view is that the Constitution was written in ar
atmosphere of liberal standing-to-sue, both in terms of legal philosophy and historica
practice. Other research has suggested that, if anything, the U.S. Constitution is bette
read as requiring open standing for the vindication of the rule of law and the protection o
collective rights and interests.59
The sword continues to cut ever more deeply into "citizen suit" provisions enactet
by the Congress in a decision in March 1998 denying the Congress the right to confer opei
standing on citizens to aid in the collection of civil penalties that might help dete
lawbreaking.60
Despite the best intentions of Parliaments and legislative bodies, and despite th
most progressive legislation, the true state of access to justice must be assessed with a
eye on the jurisprudence of the courts. Nowhere is this more true than in the United States
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BONINE, JOHN 259
where the "citizen suit" provisions adopted in a wide variety of U.S. environmental laws,
starting in 1970 with the Clean Air Act amendments of that year, are being chopped back
by the actions of the Supreme Court under the leadership of Justice Scalia. Nowhere is the
broadening of environmental standing to sue in more peril than in the United States of America
at present. If a conservative majority on the U.S. Supreme Court, sitting tall in the saddle
for the past few years, has its way, the U.S. Constitution will be interpreted, almost uniquely
in the world, as prohibiting the U.S. Congress from broadening access to justice. On the
other hand, attrition in the ranks of the current members of the Supreme Court61 could put
an end to this challenge to Congressional power, which has appeared relatively recently in
U.S. law.
5 CONCLUSION
Barriers to law enforcement by citizens and NGOs are falling in countless countries
of Africa, the Americas, Asia, Europe and the Pacific. Courts and legislatures are
recognizing that citizens and citizen groups can and should play an enforcement role. The
current author's worldwide study of the law of standing-to-sue has not yet found any nation
in which the country's Constitution has been interpreted to limit the right of the national
legislature to broaden access to justice. In sharp contrast to the conservative judicial
interpretation of the U.S. Constitution, courts in a large number of countries have interpreted
their constitutions as broadening access to justice in environmental and other matters, not
restricting it. A partial list of countries where judicial decisions have been handed down by
apex or near-apex courts that recognized broad standing, based on constitutional
interpretation, would include Bangladesh, Botswana, Costa Rica, Chile, Colombia, India,
Ireland, former Yugoslav Republic of Macedonia, Nepal, Pakistan, Peru, Philippines, Slovenia,
and Zimbabwe. (A future phase of the current study will analyze these cases.)
Legislatures also have an important role to play. The trend nearly eveyrwhere is to
broaden locus standing for citizen enforcers, against both polluters and government
departments that violate the law. It is reasonable to believe that the law will forbid the rich
and powerful, as well as the poor from despoiling the environment. Citizen enforcement
through broadened standing-to-sue will supplement often inadequate government
enforcement resources. And this enhanced involvement of citizens in the implementation
of environmental laws will move us toward societies of voluntary compliance.
ENDNOTES AND REFERENCES
1 http://www.aphorismsgalore.com/author/Anatole_France.html. Anatole France
(1844-1924) won the Nobel Prize in 1921.
2 Many other terms are in use as well — actio popularis (people's legal action,
ace/ones populares , acciones difusasjntereses difusas, acao populare., jus tertii
(third party rights), "next friends," "informers' actions," "citizens suit," la capacite'
d'ester en justice., "legal capacity to litigate," Verbandsklagerecht, "right of access
to justice,"
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260 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 For some thoughts on this broader agenda, see Bonine, "Synopsis," DOORS TO
DEMOCRACY (A Pan-European Assessment of Current Trends and Practices in
Public Participation in Environmental Matters) (Regional Environmental Center,
Szentendre, Hungary, June 1998), http://www.rec.org/REC/Publications/PPDoors/
EUROPE/svnopsis.html.
4 Several of my colleagues from civil law countries firmly maintain that a distinction
between civil law and common law countries must be made within my three
categories because they insist that in civil law countries, judges do not "make
law." Clearly I disagree with these colleagues, yet always enjoy our debates on
this matter.
5 Bernard Schwartz, LIONS OVER THE THRONE: THE JUDICIAL REVOLUTION IN ENGLISH
ADMINISTRATIVE LAW (New York Univ. Press 1987) at 6.
6 Supreme Court Act 1981, s 31, Application for judicial review:
(1) An application to the High Court for one or more of the following forms of relief,
namely—
(a) an order of mandamus, prohibition or certiorari;
(b) a declaration or injunction under subsection
(2) shall be made in accordance with rules of court by a procedure to be known as
an application for judicial review
(3) No application for judicial review shall be made unless the leave of the High Court
has been obtained in accordance with rules of court; and the court shall not
grant leave to make such an application unless it considers that the applicant
has a sufficient interest in the matter to which the application relates.
[Emphasis added.]
7 Such a view was expressed in 1980, just before the most important, modern case
of standing was rendered by the House of Lords, holding the opposite. P. Cane,
The Function of Standing Rules in Administrative Law, 1981 Public Law 332
(1981), reprinted in D.J. Galligan (ed), ADMINISTRATIVE LAW 303, 326 (1992). The
opposite view, which prevailed, was expressed by Lord Denning in THE DISCIPLINE OF
LAW 133 (1979), cited Id. n. 99.
8 [1981] 2 All ER 93; [1982] AC 617.
9 Gouriet v. Union of Post Office Workers and Others [1977] 3 All ER 70; [1978] AC
435
10 R. v. Sec. of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB
504).
11 Stephen Grosz, Access to Environmental Justice in Public Law, in Robinson and
Dunkley, eds., PUBLIC INTEREST PERSPECTIVES IN ENVIRONMENTAL LAW (Wiley Chancery
1995) at 196.
12 R. v. Inspectorate of Pollution, ex parte Greenpeace, Ltd. (No. 2) [1994] 4 All E R
329 (High Court, by Justice Otton).
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BONINE, JOHN 261
13 Quoted in Fiona Darroch, Recent Developments in UK Environmental Law, in A
WORLD SURVEY OF ENVIRONMENTAL LAW at 293, 300. Judge Otton said, however, that
standing would be granted on a case by case basis, not that all interest groups
would automatically be granted standing. This comes under the rubric of "leave to
appeal," something provided in the Supreme Court Act 1981 sec. 31(3). Id.
14 CO/3410/96 (High Court of Justice, QB Div., Crown Office) (20 April 1997).
15 http://www.igc.apc.org/elaw/americas/arg/kattan.html.
16 Personal conversation with author, 1993.
17 This paper presents a sample of cases from Commonwealth countries. Research
on cases from Latin American civil law countries, also based on constitutional
provisions, are not covered in this paper.
18 Article 88(2)-The Constitution of The Kingdom of Nepal 1990. Cited in e-mail
message from Prakash Mani Sharma, Forum For Protection Of Public Interest (Pro
Public) Nepal, Nov. 20, 1996, on file with author.
19 Richard Stith, Unconstitutional Constitutional Amendments: The Extraordinary
Power of Nepal's Supreme Court, 11 Am. U.J. Int'l L. & Pol'y 47, 52 (1996).
20 S.Ct. of Nepal, 31 Oct. 1995.
21 Dow v. Attorney General [1992] LRC (Cons) 623 (3 July 1992), cited in Michael P.
Seng, In a Conflict Between Equal Rights for Women and Customary Law, the
Botswana Court of Appeal Chooses Equality, 24 U. Tol. L. Rev. 578 (1993). Case
also cited in M.D.A. Freeman, Botswana: Bucking the Backlash, 33 U. of
Louisville J. of Fam. L. 293, 293 (1995).
22 The Botswana decision can be seen, of course, as narrowly granting standing to
the mother because of the special familial relationship, and parental obligations,
but the language used was broader than that. As for the family relationship being
a basis for standing, this decision may be compared to the view of a judge in
England who, in an unreported opinion, refused to grant locus standiio the son of
a woman detained under the Mental Health Act 1983, to contest a decision to
apply electro-convulsive therapy to her. Cited in Stephen Grosz, Access to
Environmental Justice in Public Law, in Robinson and Dunkley, eds., PUBLIC
INTEREST PERSPECTIVES IN ENVIRONMENTAL LAW (Wiley Chancery 1995) at 196 n.7.
23 Seng, supra note 12, at 658 (quoting Rumpff C.J. in Wood v. Ondangwa Tribal
Authority, 2 S.A. 294, 310 (S. Afr. App. Div. [1975])).
24 S. P. Gupta v. Union of India, AIR 1982 SC 149 (known as the Judges' Transfer
Case).
25 S. P. Gupta v. Union of India, AIR 1982 SC 149.
26 Sheela Barse v. Union of India, 1988 4 SCC 226, 234, 1988 AIR (SC) 2211, 2214,
quoted in Susman, Distant Voices in the Courts of India: Transformation of
Standing in Public Interest Litigation, 13 Wis. Int'l Law J. 57, 66 (1994).
27 M.C. Mehta v. State of Tamil Nadu and others, 1 SCC 283 (1991).
28 M.C. Mehta v. Union of India, 4 SCC 463 (1987).
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29 M.C. Mehta v. Union of India, 2 SCO 176 (1986); 2 SCO 325 (1986); 1 SCC 395
(1987).
30 Uppendra Baxi v. State of Uttar Pradesh, 2 SCC 308 (1983).
31 Sheela Barse v. State of Maharashtra, 1983 AIR (SC) 378.
32 Lakshmi Kant Pandey v. Union of India, 1984 AIR (SC) 469.
33 Civ. Case No. 5 of 1993.
34 Fuhr, Gebers, Ormond, and Roller,X\ccess to Justice: Legal Standing for
Environmental Associations in the European Union, in Robinson & Dunkley, PUBLIC
INTEREST PERSPECTIVES IN ENVIRONMENTAL LAW 89 (Wiley Chancery, London 1995).
Granting standing to nongovernmental organizations, or NGOs, through legislation
originated in Switzerland, in Article 12 of the Federal Nature and Heritage
Conservation Act 1966. Id. At 79.
35 Gerrit Betlem, Environmental Locus Stand! in The Netherlands, 3 Rev. of Eur.
Comm. & Int'l Envir. L. 238 (1994). (Another article by him appears in A WORLD
SURVEY OF ENVIRONMENTAL LAW, edited by Stefano Nespor, published in Milan.)
36 P. Klik, Group Actions in Civil Law Suits: The New Law in the Netherlands, 4 Eur.
Envtl. L. Rev. 14 (1995) (analyzing Articles 3:305a, 305b of the Dutch Civil Code).
37 See part 4.2.2 of this paper.
38 Louis Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv. L. Rev.
255, 302(1961).
39 Mich. 11 Hen. 4, pi. 24, fol. 11 (1409) (stating that anyone could sue on behalf of
the king); Mich. 5 Edw. 4, Long Quinto fol. 141, 142 (Exch. Ch. 1465) (equating
indictment with a "popular action"), cited in David J. Seipp, The Distinction
Between Crime And Tort In The Early Common Law, 76 B.U.L. Rev. 59, 74 n. 99
(1996).
40 "Qui tarn" is short for "qui tarn pro domino rege, etc., quam pro se ipso in hac parte
sequitur." This translates to "who prosecutes this suit as well for the King, etc., as
for himself." United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v
Prudential Ins. Co. (1990, DC NJ) 736 F Supp 614, affd 944 F2d 1149 (3d Cir.
1990).
41 Seipp, supra note 35, citing Mich. 13 Hen. 7, pi. 1, fol. 4, 8 (1497).
42 Huntington v. Attrill, 146 U.S. 657, 673 (1892).
43 Daniel M. Crane, Congressional Intent or Good Intentions: The Inference of Private
Rights of Action under the Indian Trade and Intercourse Act, 63 B.U.L. Rev. 853,
877(1983).
44 A more recent statute was passed by the Oregon Legislature granting 50% of any
fine levied on persons throwing out litter.
45 See, e.g., THE BOUNTY HUNTER.
46 See part 4.2.1 of this paper.
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BONINE, JOHN 263
47 Assoc. of Data Processing Org. v. Camp, 397 U.S. 150 (1970).
48 Sierra Club v. Morton, 405 U.S. 727 (1972); Students Contesting Regulatory
Agency Procedures (SCRAP) v. Interstate Commerce Commission , 412 U.S.
669 (1973).
49 Scalia, The Doctrine of Standing as an Essential Element of the Separation of
Powers, 17 Suffolk U.L Rev. 881, 884 (1983).
50 Michael A. Perino, Comment: Justice Scalia: Standing, Environmental Law, and
the Supreme Court, 15 B. C. Envtl. Aff. L Rev 135 (1987).
51 Flastv. Cohen, 392 U.S. 83(1968).
52 Scalia, The Doctrine of Standing as an Essential Element of the Separation of
Powers, 17 Suffolk U.L. Rev. 881, 884 (1983).
53 Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152
(1970) (issue of standing turns on whether plaintiff has suffered injury in fact).
54 J. Vining, LEGAL IDENTITY 10 (1978).
55 Eric J. Segall, Standing Between the Court and the Commentators: A Necessity
Rationale for Public Actions, 54 U. Pitt. L. Rev. 351, 402 (1993).
56 See, for example, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
57 See, for example, Gene R. Nichols, Jr., Justice Scalia, Standing, and Public Law
Litigation, 42 Duke LJ. 1141, 1151-52 (1993). See, e.g., Louis L. Jaffe, JUDICIAL
CONTROL OF ADMINISTRATIVE ACTION, 462-67 (1965); Raoul Berger, Standing to Sue in
Public Actions: Is It a Constitutional Requirement?, 78 Yale L.J. 816 (1969);
William A. Fletcher, The Structure of Standing, 98 Yale LJ. 221 (1988); Henry P.
Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363
(1973); Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 Calif. L.
Rev. 1915 (1986); Cass R. SunsteSn, What's Standing After Lujan? Of Citizen
Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163 (1992). at 173-76; see also
Evan Caminker, Comment, The Constitutionality of Qui Tarn Actions, 99 Yale L.J.
341, 341-44 (1989); Gene R. Nichol, Jr., Rethinking Standing,72 Calif. L. Rev. 68
(1994). Perhaps also: Erwin Chemerinsky, A Unified Approach to Justiciability, 22
Conn. L. Rev. 677, 694 (1990).
58 In response to Gene Nichols' historical exegesis on the subject, Gene R. Nichol,
Jr., Justice Scalia, Standing, and Public Law Litigation, 42 Duke L.J 1141, 1142
(1993), the lawyer who represented the government Lujan v. Defenders of Wildlife
subsequently asserted that "practice prior to the framing of the Constitution — and
perhaps constitutionally dubious remnants persisting thereafter — thus is not an
infallible guide to the scope of judicial power under Article 111." John G. Roberts,
Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219 (1993). Taking this
position, the lawyer did not find it necessary to provide any countervailing historical
research.
59 For example, see Donald L. Doernberg, "We the People": John Lock, Collective
Constitutional Rights, and Standing to Challenge Government Action, 73 Calif. L.
Rev. 52(1985).
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60 Steel Company v. Citizens for a Better Environment, 118 U.S. 1103 (1998)
61 Justices of the U.S. Supreme Court are appointed for life. Presidents Ronald
Reagan and George Bush strived to put relatively youthful conservatives on the
Court. President Bill Clinton has appointed two Justices, Ruth Bader Ginsburg
and Steven Breyer. Their views on access to justice are far more temperate than
that of Justice Scalia, as are also the views of a couple of other sitting Justices.
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ODHIAMBO, MICHAEL O. 265
LEGAL AND INSTITUTIONAL CONSTRAINTS TO PUBLIC INTEREST
LITIGATION AS A MECHANISM FOR THE ENFORCEMENT OF
ENVIRONMENTAL RIGHTS AND DUTIES IN KENYA
ODHIAMBO, MICHAEL OCHIEMG
Executive Director, Resources Conflict Institute, Printing House Road, P.O. Box 7150,
Nakuru, Kenya
SUMMARY
This paper seeks to examine the constraints, both legal and institutional, that
impede the effective use of public interest litigation in the protection and enforcement of
environmental and natural resource rights in Kenya. Legal constraints are those problems
that exist within the legal framework; while institutional constraints are those problems that
reflect the lack of capacity, opportunity and resources, whether in the legal profession or
within civil society for taking up and prosecuting cases of this nature.
1 INTRODUCTION
Both laws and institutional mechanisms for addressing the problem of environmental
degradation have been in existence in Kenya since the colonial times. Yet in this long history
also lies the major weakness of this framework for the protection of the environment. Because
the laws were conceived and introduced during the colonial era, they were informed by the
political economy of colonialism; and even when they were adopted by the independence
government, they retained major characteristics of their colonial antecedents. They have
thus for instance remained sector specific, mostly focused on pollution control and the
conservation of nature. This has resulted in a problem by problem approach to environmental
policy and law making which ignores the relationships between particular environmental
problems, and the systematic connectivity between various components of the environment1.
Over the years however, the inadequacy of this system has become obvious,
especially when compared with the evolution that has taken place in the area of environmental
management elsewhere in the world. The 1972 United Nations Conference on the Human
Environment triggered heightened global activity in the area of environmental awareness and
management. While a lot remains to be done, there is clearly an appreciation on the part
of the Government of Kenya that the management of the environment is an important input
into the development process. Both policy and legal initiatives continue to be promulgated
to address the problem of environmental management. Part of the framework being
considered for this includes the use of public interest litigation to advance the cause of
environment and natural resources management.
2 CONTEXT
Public interest litigation is a new phenomenon in Kenya's legal system. As recently
as 1986, the then Acting Chief Justice observed that the case of Public Law Institute v. Kenya
Power & Lighting Company Limited was the first public interest case ever lodged in Kenya.
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By public interest litigation we mean such suits as are filed in pursuit of the public interest.
Such suits may be filed by a public-spirited individual or group of individuals or by a civil
society organization whose mission covers the issue in relation to which the action is filed.
In the quest for effective environmental stewardship, public interest environmental litigation
has proved a major tool in the hands of concerned individuals and groups the world over2.
It is clear that successful public interest litigation requires a motivated and capable
citizenry with sufficient interest and commitment to the issues at stake; a legal framework
with rules that facilitates this kind of litigation as a means of enforcing the rights of citizens;
a judiciary that is sympathetic both to this method and the issues pursued thereby and a
policy framework that will respond positively to the dictates of courts arising from such
actions. We shall examine these factors in turn in the Kenyan context.
3 THE LEGAL FRAMEWORK
The major problem with the legal framework lies in its sectoral approach to the
management of the environment. It has been observed that this approach has created
problems in that some grey areas are not regulated and there are overlaps between mandates
of existing authorities. Apart from this, a sectoral approach has resulted in passage of 66
pieces of legislation addressing environmental concerns, each with its own provisions relating
to enforcement.
Absent from this framework is any provision for coordination between various
organizations and individuals involved in the various aspects of environmental protection. The
.need for coordination cannot be overstated, as only with coordination can there evolve a
uniform application of the law, leading to uniform standards in the management of the
environment.
The nature of this legal framework, especially its fragmented and disjointed character
is explicable by the colonial background of the legislation. The colonial resource
management system and laws were primarily concerned with resource allocation and
exploitation, informed by an extractive mentality that sought to maximize what the colonialists
would appropriate from the natural resource base. Behind this mentality was the
presumption of natural resource abundance; so that the concern of policy and law was
restricted to the allocation of access rights, with little or no concern for sustainability. This
explains the enactment of separate laws concerned with the use of these resources rather
than with sound management for sustainability.
A major constraint within the legal framework relates to the vexing question of
standing. Locus standi, or standing to sue has been used by courts in Kenya to defeat a
number of initiatives aimed at securing the public interest. The Civil Procedure Rules, which
govern the process of civil courts, provide by Order 1 rule 8(1) that one or more persons may
sue on behalf of a number of people who have the same interest in one suit. A person who
files such a suit, known as a representative suit, is enjoined to give notice of the filing of the
suit whether directly or by advertisement in the press to all persons interested in the matter.
.Any person on whose behalf a suit is so filed may apply to be joined as a party.
While this provision appears to provide an opening for the pursuit of public interest
litigation, this matter is not so straight forward, especially with respect to public interest
environmental litigation. The law suggests that such a representative action is envisaged
on behalf of a determinate class of persons "having the same interest in one suit". The nature
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ODHIAMBO, MICHAEL O. 267
of environmental litigation is such that it is hard to be so specific about the class of persons
on whose behalf an action would be brought; and this has hampered the use of this rule to
facilitate public interest environmental litigation.
It is also possible however, to file what are known as "relator" actions under the
provisions of Section 61(1) of the Civil Procedure Act. This type of action is specifically
designed to enable citizens to move the courts to act in cases of public nuisance. The
section provides that,
"In the case of public nuisance, the Attorney-General, or two or more persons having
the consent in writing of the Attorney-General, may institute a suit though no special damage
has been caused, for a declaration and injunction or for such other relief as may be
appropriate to the circumstances of the case".
The use of "relator" actions for the enforcement of environmental rights is constrained
by the requirement of written consent of the Attorney-General before instituting suit. Apart
from the bureaucratic delays inherent in the procedure, the Attorney-General is a political
officer and a member of the Executive and has proved singularly incapable of taking action
on sensitive issues that involve conflict of interest. The cumulative effect of this is that the
Attorney-General will hardly move on his own, while private individuals are discouraged by
the need for consent; thus rendering this section virtually useless for the purposes for which
it was otherwise intended.
Even though it has been held by the court of Appeal3 that an aggrieved member of
the public can himself seek relief in the courts if the Attorney-General unreasonably or
improperly refuses to exercise his powers, or there is insufficient time for him to do so, such
a member of the public would still have to show that he has 'sufficient interest' which remains
undefined by decided cases. It is submitted that the tenor of decisions to date suggest that
the courts are likely to define 'sufficient interest' in a manner that denies rather than permits
actions by individuals in the prosecution of the environment.
That locus standi should be such an impediment to public interest litigation in Kenya
is evidence that the legal system is tied down with English common law concepts even where
the statutes have provisions that if interpreted liberally would advance the interests of
Kenyans. The statutory provisions of the Civil Procedure Rules rank hierarchically above
the common law concepts to which they are referred.
Perhaps this inadequate legal framework is a consequence of the absence of a
constitutional basis for public interest litigation in the protection of the environment. The
Constitution of Kenya does not have any provisions guaranteeing a healthy and wholesome
environment. It is imperative that as the Constitution is reviewed, this guarantee be built into
the Constitution.
4 LEGAL PROFESSION AND JUDICIARY
Whereas the legal framework clearly constitutes a major constraint to public
interest environmental litigation, it is equally obvious that even the best legal framework would
not in itself guarantee to the citizens the benefits of protection inherent therein, unless there
is in existence within the country a corps of legal professionals, both in the Bar and the
Bench that have an active interest in using the legal framework to advance environmental
rights.
Professor C.O. Okidi, a leading Kenyan environmental lawyer has suggested that
the inadequate legal framework notwithstanding, there is a sense in which the failure of public
interest environmental litigation in Kenya is a function of an inept legal profession and
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judiciary. Yet it is the advocates for the environment who can activate the lawyers and prompt
a change in the attitudes of judicial officers. Okidi submits that "court judgment—may also
depend on the cogency of the arguments as well as the quality and the judicial temperament
of the courts. Therefore the chances of success may well depend on the creativity,
commitment and persistence of litigations"4. He further suggests that there has not been
a sufficiently strong, persistent and consistent pressure brought to bear on the judicial system
to force the environmental agenda into the court process. He observes that "advocates of
environmental protection and human rights in Kenya may not have challenged the courts over
related matters sufficiently. Courts must be moved and convinced, and once more, the efforts
should be creative, committed and persistent"5.
For the legal profession and the judiciary to rise to the challenge of public interest
litigation in the advancement of environmental rights, it is necessary that capacity be built
within the profession for public interest litigation generally, and for environmental litigation
in particular. The training of lawyers in Kenya has to date been geared toward producing
private practitioners with an eye on commercial activity rather than public service. The
lawyers who end up in the public sector are equally constrained by an attitude that puts
emphasis on specific client interest. Public interest litigation does not fit well into this mould
and attitude. Apart from addressing the curriculum of law schools and university faculties
of law as a long term measure, such capacity building should in the short-term be in the form
of continuing legal education to qualified and practising lawyers.
5 CIVIL SOCIETY
It has to be appreciated however, that the effectiveness of lawyers will depend largely
on the mobilization and commitment within civil society to the protection of the environment.
The commitment and persistence of litigation called for by Professor Okidi can only be assured
by civil society environmental advocates. It is the existence of a strong and committed lobby
for the environment, and one that is committed to the use of the legal process in the protection
and enforcement of environmental rights, that will in turn create and maintain a capable legal
profession.
In the past, the political environment in Kenya, as in much of Sub-Saharan Africa,
has not been conducive to the organization of civil society around such issues as
environmental rights. In the single-party era, which was characterized by autocratic
governance and emasculation of civil society, advocates for environmental rights became
targets of intimidation and harassment by government. This has greatly hampered the
evolution of serious environmental advocacy groups that would effectively mobilize public
opinion and resources in the protection of the environment6.
There have however, been significant changes since the early 1990s. The
reintroduction of a multi-party political system has reasserted pluralism and civil society
organizations continue to emerge, addressing specific interest. Environmental advocacy
groups are being created all over Kenya, and public interest environmental law firms are nov
in the works. These too need training, advice and general capacity building to become
effective means for environmental protection.
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ODHIAMBO, MICHAEL O. 269
6 THE POLICY FRAMEWORK
When all is said and done however, it is the political process that will ensure the
effectiveness of public interest litigation in the protection and enforcement of environmental
rights. The policy framework is a function of the political process, and in the past this has
not been conducive to such citizen initiatives as public interest litigation.
A number of changes that have occurred within the political system since the
beginning of this decade have, however, augured well for the policy framework. Economic
and structural adjustment programs introduced at the behest of international financial
institutions and the donor community, have forced the government to become more receptive
to ideas and initiatives that emanate from the citizenry. The reforms instituted by these
programs have resulted in much leaner governments, with a reduced capacity and presence
in natural resource management. As a result it is in the interest of government to allow the
effective involvement of the citizenry in environmental protection.
Moreover, the political space created by the greater democratization that has been
introduced as part of the reforms in the political system has translated into a more empowered
civil society. It has also translated into a government that is more ready to listen to its people
as accountability and transparency find root.
These developments provide an opportunity for the strengthening of public interest
environmental litigation.
7 CONCLUSION
Public interest litigation generally, and environmental litigation in particular, are new
phenomena in Kenya. The legal and institutional framework that has existed in the country
since colonial times is one that is not at all conducive to the effective use of public interest
environmental litigation as a means of securing environmental and natural resource rights.
The limited scope of common law remedies available for environmental degradation and the
personal nature of those remedies are a major legal constraint to the widespread use of public
interest litigation to enforce environmental rights. The absence of a constitutional provision
guaranteeing a healthy environment creates a serious gap in the enforcement mechanism.
Additionally there is lack of capacity within the legal profession and the judicial system for
the use of public interest litigation, and an absence of organized civil society institutions to
pursue environmental rights through the courts.
The situation is however changing rapidly as there is increased awareness both in
and outside government of the need for environmental stewardship as an input in the
development process. Reforms in the legal framework and the governance system are
beginning to translate into opportunities for increased use of public interest litigation to
advance environmental and natural resource rights.
Nevertheless there is a critical need for capacity-building initiatives to ensure that
these opportunities will be translated into benefits for environmental and natural resource
governance. Such capacity building should aim at providing resources and ideas, sharing
experiences form elsewhere and creating institutional frameworks for public interest litigation
within civil society, in government and the entire legal profession in Kenya.
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ENDNOTES AND REFERENCES
1 The word 'environment' is understood throughout this paper to mean the totality of
nature and natural resources, including the cultural heritage and the infrastructure
constructed by human beings to facilitate socio-economic activities. See Okidi,
C.O. 1994. Review of the Policy Framework and Legal and Institutional
Arrangements for the Management of Environment and Natural Resources in
Kenya. (A Report prepared for the Government of Kenya with the support of the
United Nations Environment Program).
2 Gleason, Jennifer M. and Johnson, Bern A., 'Environmental Law Across Borders'
Journal of Environmental Law and Litigation, Vol. 10, 1995, pp. 67-83. See also,
Environmental Law Institute, 1992. The Role of the Citizen in Environmental
Enforcement. (A Working Paper prepared under the auspices of the Environmental
Law Institute's Environmental Program for Central and Eastern Europe).
3 Njau, Alfred and 5 Others v. City council of Nairobi (1982-1988) 1 KAR 229.
4 Okidi, C. O., 1996. The Practice and Principles in Environmental Law for Kenya'.
(A Paper prepared for the KNAS/IDRC Public Lectures at the Kenya National
Academy of Sciences), page 13.
5 ibid, page 14.
6 Such individual efforts as those of world renowned Kenyan environmental advocate,
Professor Wangari Mathai, though commendable, have had limited long term
impact on the overall system.
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WORKSHOP 3D: STRUCTURING FINANCIAL CONSEQUENCES 271
WORKSHOP 3D
STRUCTURING FINANCIAL CONSEQUENCES IN
ENFORCEMENT: PENALTY POLICIES, RECOVERY OF
DAMAGES, RECOVERY OF ECONOMIC BENEFIT OF
NON-COMPLIANCE
As fundamental as the "polluter pays principle" is to environmental policy generally,
economics is also a powerful incentive for compliance behavior. Many if hot most
environmental compliance and enforcement programs make use of economic sanctions,
incentives and/or disincentives to motivate compliance. To be effective, however, the use
of monetary fines or recovery of damages must be well grounded in practical realities of actual
costs of control or prevention of pollution and also in theoretical underpinnings which can
garner support and acceptance by the public and those potentially affected.
3. Summary of Workshop Discussion, Facilitator: N. Marvel;
Rapporteur: C. Musgrove; Expert Economic Benefit Modeling: J. Libber 273
Papers 1 - 2 for Workshop 3D and a list of related papers from other International
Workshops and Conference Proceedings are inVolume 1
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WORKSHOP SUMMARY: 3D STRUCTURING FINANCIAL CONSEQUENCES IN ENFORCEMENT 273
SUMMARY OF WORKSHOP: STRUCTURING FINANCIAL
CONSEQUENCES IN ENFORCEMENT: PENALTY POLICIES, RECOVERY
OF ECONOMIC BENEFIT OF NON-COMPLIANCE
Facilitator: Nancy Marvel
Rapporteur: Connie Musgrove
Expert Economic Benefit Modeling: Jonathan Libber
GOALS
Discussions were designed to address the following issues:
Factors countries have used to construct penalty policies or practice in
assessment of penalties for violations of environmental law.
Approaches which have been most successful or have posed problems
andwhy.
The role for the "recovery of economic benefit of non-compliance" or other
relevant theories in country enforcement response and penalty approaches.
(Including a demonstration of models used to support such calculations).
Approaches used to assess damages to human health or the environment and/
or recover costs of clean up or control. Level of difficulty, cost, credibility of
these approaches and how that affects the ability of governmental officials or
affected parties to recover costs and deter future action which caused
damages.
Principles and approaches for structuring penalty policies and recovering
damages.
The implications for enforcement economics of "Take back laws" and related
market approaches to make generators of pollution accountable for their
pollution contributions.
1 INTRODUCTION
The participants of all nations represented are struggling with the dual issues of how
to drive polluters and potential polluters to compliance and what sanctions to impose on those
caught violating the law. The concept of imposing monetary fines is not universally embraced
in all cultures; but where imposed, the amount may not be within the control of the
environmental authority or the penalty may be pre-fixed e.g. written into the permit.
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2 DISCUSSION SUMMARY
2.1 Defining "Economic Benefit of Non-Compliance"
Jonathan Libber, a legal and economic expert in calculating "economic benefit,"
explained the philosophy and approach used in the United States for establishing the
minimum penalty to impose to prohibit a violator from profiting from his violations. How does
one establish a penalty structure so that the polluter cannot merely pay the fine, but still saves
money? Economic benefit calculation involves determining four areas: 1) what were the
"delayed expenses," i.e. the costs to comply with the law; 2) when did the violation begin
in relation to when costs needed to be incurred; 3) when did the violation end; and 4) when
did the violator pay for. the necessary expenses to come into compliance.
Many participants expressed concern about the ability to impose very high — million
dollar penalties — especially if other types of crimes are considered worse. They requested
further understanding on when and how the United States addressed such high penalties.
Further clarification described the concept of graduated penalty formulas that included
calculating the above economic benefit and the "gravity" or seriousness of the harm to the
public or the environment. Those penalties are then adjusted "downward" for such factors
as "ability to pay," cooperative spirit of the violator, and "Supplemental Environmental
Projects" — monies spent on projects that go beyond compliance and are tied (i.e. a nexus
exists) to the original violation.
The participants developed and discussed a hypothetical example of an air pollution
violation — failure to install a bag house (a large cleaner which captures particulate matter).
The bag house was not installed on time it was delayed 5 months. During the five months,
the facility had uncontrolled releases of 100 percent above permit levels. If it costs $1 million
to install a bag house and one year to build it, the polluter has the use of $1 million for one
year and five months longer than his competitors. In addition, he avoided operation and
maintenance costs equal to 10 percent of his capital costs. The "harm" established for the
violation which was 100 percent over limit was set at $10,000 per month. These penalties
are added and then a series of negotiations with the company takes place to attempt to
resolve the key assumptions and penalty amount prior to preparing for a trial in front of a judge
in the hopes that the matter could be settled between the parties and the judge ratify the
results.
2.2 Negotiation
Countries offered their experience with negotiation. Some negotiations are not
successful or take too long. In some cases claims are made that costs are not accurate.
Requesting tax returns was offered as an approach for cost differences. Questions arose
as to why one should negotiate if policies are justified. One answer given was "litigation risk"
how likely one will succeed or fail if the matter is taken to a court. This risk can be estimated
if policies have evolved for years successfully. If they are developing, there may not be a lot
of information or analytic background that supports challenges to the standards.
Negotiation is not always an option. If speed and a quick response is needed, some
action must stop the damage quickly. One participant indicated they do not have the basis
to negotiate. The judge sets fines. Any analysis of costs in that case would help establish
a plea to the judge. Other participants also discussed the authority of the judges. In some
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WORKSHOP SUMMARY: 3D STRUCTURING FINANCIAL CONSEQUENCES IN ENFORCEMENT 275
cases, the judes can add to a penalty, in others, they can negotiate different amount. In the
U.S. context, judges have made direct use of these policies to recover economic benefit in
their own decision making, and also in support of judgements sought by NGOs.
2.3 Alternatives to Economic Benefit Calculations and Penalty Policies
One country expressed the approach of considering the impact on the environment
first. For a "front runner company, there would be no penalty. For a "straggler" one who will
not cooperate or repeatedly violates there may be extra punishment in terms of money,
stopping operations or closing. Factors need to be considered between recapturing economic
benefit and the seriousness of the violation. A determination needs to be made on how much,
how toxic, what specific area is affected and if the violation occurred before receiving authority
to operate e.g. without a permit.
Several countries agreed that if industry threatens health or the environment, it must
be shut down. One participant added that if the agency does not shut it down, the director
can lose his job.
2.4 Effectiveness of Penalties
Many participants discussed the issue of the ineffectiveness of some penalties and
the lack of public support for punitive damages. One country offered that some companies
prefer to pay the penalty and the fee rather than comply. An example was offered of hazardous
waste drums spilling into a river and killing tons offish. The penalty associated with this would
address strict liability. Alternately, if the drums spilled into a yard and the berm broke and
contaminated the river, one could address the prevention plans. For small routine violations
the penalty can be graduated based on seriousness of the harm and doubled if repeated.
One country stated that they embrace the concept "polluter must pay" and their fines
go into a fund. It is considered a tax collection function. The penalty charges, themselves,
are written into the permit. However, these preset penalties do not serve as disincentives as
they are too low. Another participant described their country's ability to charge three to five
times the cost of treatment for that chemical to meet water quality standards depending on
the context of the violation. For example, focusing on discharges (BOD or chemicals that
can interfere with the treatment system) can levy greater fines with good response. However,
they do not recover damages. They also have the authority to close the plant, but it does
not work well.
Countries believed that if the problem is very diffuse and widespread, then it shows
society is accepting of the problem. When there is not general support for enforcement or
it is not a high priority, then solutions must be negotiated with companies. This can include
advising how to comply and negotiating standards for new plants. One participant offered
that focused sustained enforcement be targeted at the stubborn non compilers and shut
them down if necessary. Another country believed shutting down is not a very good option
if jobs are at risk. It is important to try to change attitudes while keeping factories open.
Penalties do have a role and they need to be kept high enough. Another country strongly
supported the need for cooperation and prevention, that penalties do not work. It is important
to talk to the company, work with them step by step. Establishing permits is crucial. If they
violate the permit, send letters and do inspections. Fines are not effective, but publicity is
most important. If necessary, close the factory.
Several countries discussed the problem with dealing with municipalities that
pollute. There was general agreement as to the difficulty in getting municipalities to comply.
There may be national support for municipalities depending on how effective they deal with
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pollution. Municipalities are also governed by elected officials who will not be re-elected if
they raise taxes to pay for violations. A mayor who doesn't raise taxes gets elected and
others may lose their job.
3 CONCLUSION
Most countries are developing integrated approaches to punishment for
environmental violations, imposing stiff monetary penalties is not universal and the ability
to assess penalties with the calculation of "damages," restoration costs or economic gain
by polluting is limited. Many countries value high fines. For some countries, however, the
information to do this type of analysis is only emerging, for others penalties are preset in
law or permits or by the judiciary. Most countries also acknowledged the difficulty of catching,
much less fining the activity of widely-diffused small operators. Several countries emphasized
the need to seek cooperation with their industry, negotiating compliance problems with the
ultimate authority to shutdown operations. In a few cases, the culture itself served as powerful
deterrence as society condemns such behavior and not all problems are equal to being
addressed by fines.
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WORKSHOP 3E: ROLE OF NEGOTIATION IN ENFORCEMENT 277
WORKSHOP 3E
ROLE OF NEGOTIATION IN ENFORCEMENT
This workshop addressed the appropriate role of negotiation in environmental enforcement
t is a subject on which there are strongly held views both in favor of and against a role for
negotiation. In favor of negotiation is the view that unilateral orders to compel violators to
zorrect existing practice may not necessarily lead to compliance if they are unrealistic in
•egard to steps needed to correct or prevent a facility from violating its environmental
•equirements or ability to pay fines assessed. Indeed the kind of information needed to make
:hese determinations is often either only known to the violator or may require extended
:ommunications between the violator and the government. Furthermore, negotiation may
ead to solutions that better balance environmental, economic and social concerns. In favor
af no role for negotiation is that it may allow exceedences from environmental law and
:herefore make problems worse, encourage favoritism, bribery and inconsistent practice
which can undermine the program and encourage deviations from legal requirements which
nust be strictly followed.
1. Summary of Workshop Discussion, Facilitators: S. Bromm, J. W. Wabeke-
Rapporteur: J. Rothman ' 279
\ list of related papers for Workshop 3E from other International Workshops and
Conference Proceedings is in Volume I
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WORKSHOP SUMMARY: 3E ROLE OF NEGOTIATION IN ENFORCEMENT 281
3.4 Advantages of Using Negotiation in Enforcement
Countries that have been using negotiation with regulated entities reported
significant advantages.
Saves time and energy, particularly if expense of litigation can be avoided.
Reduces risks inherent in litigation.
Allows parties to address the most important issues and avoid marginal
issues.
3.5 Barriers to Use of Negotiation that Need to be Studied Further
The group identified some particular problems that bear further study.
Find ways to increase transparency to avoid "smokey room" perception and
corruption.
How to enforce negotiated agreements (e.g. U.S. turns agreement into judicial
order).
How to involve and educate public (e.g. New Polish legislation will allow NGOs
to become parties).
4 CONCLUSION
There is a role for negotiation at various stages of compliance and enforcement even
in countries that do not provide a role for negotiation in adversarial circumstances It is a
subject on which there are strongly held views both in favor of and against a role for
negotiation. Although the use of negotiation between government and regulated entities varied
considerably among countries, all countries acknowledged some use of negotiation with
regulated entities and all countries acknowledged the use of negotiation among governmental
colleagues and jurisdictions. Public involvement in the process of negotiation, either directly
or indirectly, is critical to a successful outcome.
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WORKSHOP 3F: ADMINISTRATIVE ENFORCEMENTMECHANISMS 283
WORKSHOP 3F
ADMINISTRATIVE ENFORCEMENT MECHANISMS:
GETTING AUTHORITY AND MAKING IT WORK
Empowering administrative environmental agencies to impose legal requirements and/or
sanctions directly to violators without having to go to a court of law or other department or
agency for prosecution has been an important development in many countries, resulting in
faster and less costly response to violations. Discussions drew upon workshop papers from
the Third International Conference on "Field Citations".
2. Summary of Workshop Discussion, Facilitators: M. Mulkey.A Parker;
Rapporteur: G.Ginsberg ' 285
Paper 1 for Workshop 3F and a list of related papers from other International Workshops
and Conference Proceedings are in Volume I
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Compliance orders and/or cleanup or response orders.
Penalties.
Ability to order tests or studies.
• Ability to seize items in commerce.
3.2 Participants' Experience with Administrative Authorities
These summaries reflect the reported perceptions of the individual participants and
do not necessarily reflect the full picture in any identified country.
Ecuador - Can remove or suspend licenses. Administrative authorities are not
yet integrated on a national level.
Estonia -17 local enforcement units; would like to centralize and reduce
number of units.
Germany - Has licensing and control authorities; can lead to administrative
orders when facilities fail to comply with terms of license. Government can
impose penalties, but does not usually do so.
Slovak Republic - Fines, orders for improvement (with deadlines) - negotiated;
fee system for discharges/emissions.
Gambia - Fines imposed only with reference to fisheries law. Polluters have
option of settling or going to court. Government also can confiscate materials.
Laos - Has new law. Looking at implementation, rather than enforcement. Will
provide economic incentives, such as bottle deposit refunds and tax deferral.
Bonaire - No industrial pollution. Needs rules to address pollution from tourist
related facilities, such as photo labs, and oil storage facilities. Would prefer
to have administrative tools.
Ethiopia - No current administrative tools to address deforestation problems.
Can confiscate materials after the fact.
Tanzania - Currently, forms technical committees to develop acceptable
solutions to compliance problems. Also uses public meetings and
negotiations. Could use stronger administrative tools to enhance effectiveness.
Greece - Has administrative and criminal penalty authority, used at discretion
of inspector. Separation of permitting and inspection is new development. Can
impose penalties, fines and orders. Two types of orders: Greenbill - for
environmental works; Bluebill - for marine sources. Can provide economic
incentives to improve environmental conditions. Source can challenge
penalties imposed administratively by paying 1/4 and going to court to
challenge and recover penalty.
Australia - Recent increase in enforcement matters going to court. Uses a
range of administrative enforcement tools, including pollution abatemenl
notices, cancellation or suspension of licenses, warnings, restricted conditions
for operation, use of other agency mechanisms for control, penalty infringemenl
notices for non-compliant auto emissions.
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WORKSHOP SUMMARY: 3F ADMINISTRATIVE ENFORCEMENT MECHANISMS 285
SUMMARY OF WORKSHOP: ADMINISTRATIVE ENFORCEMENT
MECHANISMS: GETTING AUTHORITY AND MAKING IT WORK
Facilitators: Marcia Mulkey, Adam Parker
Rapporteur: Gail Ginsberg
GOALS
Discussions were designed to address the following issues:
Kinds of authorities administering agencies have been granted, how have these
authorities evolved and why, including simple traffic ticket-types of systems,
ability to assess and collect penalties, establish compliance schedules',
recover economic benefit, assess damages, shut down operations etc.
Effective use of administrative authorities and key factors in success or failure.
The importance of the administrative program of support of the judicial system
and other governmental forms of legal response for the administrative program.
1 INTRODUCTION
Participants universally support administrative enforcement mechanisms as an
effective way to achieve environmental goals. However, many countries, especially developing
nations, have new laws and environmental management systems, which have not yet
developed administrative authorities, or where such authorities exist, they have not been used
long enough to acquire the respect and effectiveness of more mature administrative
programs. It is recognized that there is a need for effective underlying legal power in order
to make administrative enforcement systems work.
2 PAPERS
A paper by A. Enkhbat reported about the administrative enforcement mechanisms
in Mongolia.
3 DISCUSSION SUMMARY
3.1 Definition of Administrative Enforcement
Administrative enforcement can be defined, initially, by what it is not. It is not
criminal enforcement or civil judicial enforcement, both of which involve the court system.
The distinguishing feature of administrative enforcement is that it does not involve the courts,
although all administrative enforcement systems provide access to the judicial system at
some point in the process.
An administrative enforcement process is administered by the environmental
ministry or agency and may have available a variety of enforcement tools including:
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WORKSHOP SUMMARY: 3F ADMINISTRATIVE ENFORCEMENT MECHANISMS 287
Sweden - Has orders and administrative fees Fees can be waived when source
comes into compliance. Also has environmental protection charges -
unlimited in amount - which are designed to recover economic benefit; these
charges are issued through the National Licensing Board. However system
is difficult to administer because of difficulty of proving economic benefit. New
environmental code includes environmental sanction charge which is the
equivalent of a traffic ticket.
Benin - Historically, lack of collaboration between competing ministries with
environmental authority. Moving toward collaboration and creating
administrative procedures for new industrial plants, starting with environmental
assessments. Existing industries will get time to comply with new legislation.
Malaysia - Moving from an agricultural to an industrial economy. Laws require
environmental assessments, administrative fines, and criminal fines. Also,
laws permit facility to violate standards, through payment of fee and coming
into compliance.
Latvia - Administrative penalties are available. Civil courts can provide
compensation for environmental damages. Noncompliance with permit limits
can lead to higher taxes (natural resource tax). Money collected goes to
environmental fund or to government budget. Tax can be lowered in recognition
of environmental improvements by polluter.
Papua New Guinea - Issues licenses for dischargers. Can enforce license
conditions criminally, but is examining use of a hierarchy of responses - from
warnings and orders to prosecutions.
St. Lucia - Lack of standards makes administrative enforcement difficult.
Effluent standards are contained within public health legislation. Has authority
to close down facilities for ongoing nuisances.
Portugal - Provisional notices are written on-site, to be signed by facility
representative. Notice then goes to inspector general who imposes fines. Also,
can use voluntary agreements, known as contracts, which are enforced by
warning notices. Inspector general sets deadlines; can request cutting energy
to facility to stop pollution.
Taiwan - Has permit system. Provides economic incentives. Also uses
administrative remedies, with range of penalty values. Each day of violation
is basis for extra penalty. Has found administrative tools are ineffective to
address non-point sources.
Other concepts mentioned included:
Closing of facilities, denial of access to sewer system, and revoking of
licenses were all mentioned as available administrative authorities.
Participants -raised issues regarding the quality of administrative orders or
actions, defensibility of such orders or actions in court, who issues the orders
and with what safeguards, and avoidance of undue influence on administrative
regulatory personnel.
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3.3 Experiences with Use of Administrative Enforcement Tools
Making administrative enforcement work effectively requires underlying legal
authority. Where there is a lack of environmental protection laws, enforcement pressure can
be provided through development of partnerships with other government departments that
have legal powers. This approach can also be useful when environmental protection laws
exist and increases the number of administrative tools that can be employed for enforcement.
Use of administrative authorities against public entities is problematic. For example,
administrative penalties against publicly-owned treatment works and other public facilities
are less effective because the money comes from the government and is funded through
taxes. There is some deterrent value to issuing administrative notices to these entities
because of the element of embarrassment. Public outcry can have a positive effect on public
entitles.
There is substantial disparity, from country to country, in the effectiveness and ease
of using administrative enforcement tools. In some counties, compliance with orders is
almost automatic; in others, companies which receive such orders usually challenge them
in court.
A benefit of using administrative tools is that there is often an immediate sanction
for environmental non-compliance. Administrative programs can demonstrate a consequence
of lack of compliance. Often a staged approach to enforcement can be used through the
administrative system before moving to the judicial forum.
4 CONCLUSION
There is consensus that it is preferable to have available administrative, civil judicial,
and criminal enforcement tools for an effective environmental enforcement program. Among
the benefits of using administrative enforcement tools is the potential for immediate sanction
for environmental non-compliance. Although the environmental law systems of many
developing countries have not yet matured to the point where they can evaluate the
effectiveness of administrative enforcement tools, representatives of these countries
recognize the advantages provided by having the discretion to act administratively. Underlying
all these conclusions is the assumption of a lawful basis for the administrative enforcement
system, which can withstand the inevitable legal challenges from those who are on the
receiving end of the administrative enforcement actions.
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WoRKSHOpSG: COMPLIANCESCHEDULESAND ACTION PLANS 289
WORKSHOP 3G
COMPLIANCE SCHEDULES AND ACTION PLANS:
CONTENT, ENFORCEABILITY AND USE IN
COMPLIANCE AND ENFORCEMENT
An enforcement program must return violators to compliance, prevent continued and future
violations, and send a broad message of deterrence to others who are or may violate
environmental requirements. A practical component of most enforcement responses other
than one of ignoring a violation or shutting down a facility or operation is the use of a schedule
or action plan for compliance where additional time is required for a violator to reasonably
take the necessary steps to come into compliance. This is true for voluntary agreements
as well as legal orders. This is particularly important in the instances in which corrective
action requires the purchase, construction and installation of pollution control equipment but
can also be a factor in the redesign of workplace practices, removal of toxic or hazardous
substances, clean up of spills or contamination etc. One paradox posed by the very use
of government sanctioned schedules for this purpose is that it condones continuance pf
operations in violation of the law. Nevertheless, the use of compliance schedules and action
plans, particularly in conjunction with sanctions, is a pragmatic way of recognizing the
realities of what it takes to correct a problem once government has gotten the source's
commitment to do so.
3. Summary of Workshop Discussion, Facilitators: J. Buntsma, T. Mas/any;
Rapporteur: C. Hooks 291
4. Compliance Plans: Creative Negotiations for Corrections and Penalty,
Dabrowski, Boguslaw 295
Paper 1 for Workshop 3G and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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WORKSHOP SUM WAR/: 3G COMPLIANCE SCHEDULES AND ACTION PLANS 291
SUMMARY OF WORKSHOP: COMPLIANCE SCHEDULES AND ACTION
PLANS: CONTEXT, ENFORCEABILITY AND USE IN COMPLIANCE AND
ENFORCEMENT
Facilitators: Tom Maslany, Joost Buntsma
Rapporteur: Craig Hooks
GOALS
Discussions were designed to address the following issues:
How enforcement officials justify the use of compliance schedules and action
plans. Key elements of compliance schedules and action plans that make
them enforceable, more likely to succeed, more likely to be able to monitor
progress, and/or support efficient escalation by enforcement officials if they
are not followed.
Examples of the use and content of compliance schedules and actions plans
in different countries and programs and how they have evolved. What is
common to each of these and what is different and why.
What difference it makes whether a schedule or action plan is developed by
government, by a court, by negotiation with a violator, by a violator, in the law.
What role should or can negotiation play.
The use of sanctions in conjunction with compliance schedules or actions
plans.
Whether action plans or schedules should be made public.
How to ensure administrative officials are accountable for fair, predictable,
consistent application of their authorities.
1 INTRODUCTION
An enforcement program must return violators to compliance, prevent continued and
future violations, and send a broad message of deterrence to others who are or may violate
environmental requirements. A practical component of most enforcement responses other
than one of ignoring a violation or shutting down a facility or operation is the use of a schedule
or action plan for compliance where additional time is required for a violator to reasonably
take the necessary steps to come into compliance. This is true for voluntary agreements
as well as legal orders. This is particularly important in the instances in which corrective
action requires the purchase, construction and installation of pollution control equipment but
can also be a factor in the redesign of workplace practices, removal of toxic or hazardous
'substances, clean up of spills or contamination, etc. One paradox posed by the very use
of government sanctioned schedules for this purposes that it condones continuance of
operations in violation of the law. Nevertheless, the use of compliance schedules can be
used to correct a problem.
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2 PAPER
A paper was prepared in support of this topic. The paper was prepared by Fred
Huisman entitled, "Law Enforcement on Military Sites in the Netherlands", Fifth International
Conference on Environmental Compliance and Enforcement Proceedings Volume 1. This
paper described the unique relationship between the Ministry's of Defense and the
Environment in the issuance of permits to carry out law enforcement. The paper also
addressed the issue of confidentiality.
3 DISCUSSION SUMMARY
The discussion began with participants describing what part negotiation plays in the
development of compliance schedules. An example of the range of uses of negotiation
included: negotiation used in developing compliance schedules, negotiation is used when
producing EISs and/or permits to develop compliance schedules, negotiating is not used
at all for a variety of reasons (not legally provided for, society view and fear of corruption).
The group discussed the need to think of compliance schedules in terms of a timeline
and establishing specific requirements or standards and a compliance date or time when
the regulated entity must achieve compliance. Once achieving this common understanding,
the group then organized the remainder of their discussion around 5 different questions. They
were:
What is the need for a compliance Plan?
What should be in compliance plan?
Should there be public and local (City Officials) involvement in the development
of compliance plans?
How do compliance plans influence the relationship between the government
and the polluter?
• How does a compliance plan affect penalties or fines?
Below is a summary of responses by each question provided in the order discussed.
3.1 What is the need for a compliance plan? Responses included: .
to ensure that regulated entities make the necessary corrections;
to encourage compliance;
to allow commitments to be made publicly by companies;
to ensure the government is making progress toward compliance;
to put pressure on other companies to come into compliance; and
compliance plans could also include incentives.
3.2 What should be in compliance plan?
Present compliance status should be described.
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WORKSHOP SUMMARY: 3G COMPLIANCE SCHEDULES AND ACTION PLANS 293
Compliance schedules could be developed for a class of industries, place
based and/or by individual facility.
The consequences for not achieving compliance should be included (Question
4).
Written commitments with signatures of affected parties should be included.
3.3 Should there be public and local (City Officials) involvement in the development
of compliance plans?
There was much variation in the point of reference from the workgroup participants
on whether the public was involved in developing compliance schedules. The workgroup
generally thought it was a good idea for outside parties to be an active participant in order
to make the best decisions. The EIS process did serve as a mechanism for some countries
for capturing public comment. It was clear that public and local involvement would be
influenced by a country's cultural standards, environmental awareness and laws.
3.4 How do compliance plans influence the relationship between the government
and the polluter?
Negotiating compliance plans teach all parties their respective industries and how
government works. This cooperation can yield better results.
4 REVIEW OF MODEL AGREEMENT
Workgroup participants were given a model agreement to control environmental
pollution whose parts included identifying parties, providing background and indicated
authority under which agreement is undertaken, definitions, describe actions government
agencies will take, specifically describe measures enterprise will implement to reduce
pollution, establish time schedule for implementing the measures, provide for monitoring of
performance under the agreement, specify funding commitments, identify responsible
individuals who will act for the parties to implement the agreement, provide for penalties and
identify mechanisms for resolution of disputes about the agreement.
5 CONCLUSION
The use of compliance schedules and actions plans, particularly in conjunction with
sanctions, is a pragmatic way of recognizing the realities of what it takes to correct a problem
once government has gotten the source's commitment to do so.
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294 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL GOMPUANCE AND
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DABROWSKI, BOGUSLAW 295
COMPLIANCE PLANS: CREATIVE NEGOTIATIONS FOR CORRECTIONS
AND PENALTY
DABROWSKI, BOGUSLAW
Head of Inspection Section, Voivodeship Inspectorate for Environmental Protection in
Opole, ul.Nysy Luzyckiej 42,45-035 Opole, Poland
SUMMARY
This paper provides a status report on an experiment underway in Poland to try to
introduce negotiations of compliance plans as a new enforcement tool for heavily polluting
industries which are in violation of the law. In the Polish Environmental Legal System there
is no place for negotiations with the polluters in a case of violation of environmental law. The
only thing to do is to start the legal procedure just to force them to obey environmental law
and established conditions for environmental use which often can result in little progress being
made.
In order to change this situation a little bit negotiation procedure was adopted in
Poland as an experiment for heavy polluters. The National Environmental Protection
Inspection (from January 1, 1999 The Environmental Protection Inspection) in Poland
produces "the list of most environmental nuisance plants in a national scale" called "The List
80." In the end of 1997 we have got 70 plants on that list.
In 1998 the four experiments with the polluters from "The List 80" were under way.
The negotiations procedure is based on the free will of the participants (the polluters and
administrative organs) and existing environmental law.
To make things easier "The regulations about conditions for removal from the list of
the most environmental nuisance plants in a national scale" were elaborated.
The realization of the compliance program cannot exceed five years.
1 HISTORY OF "THE LIST 80"
In April 1989 the Chief Environmental Protection Inspector asked the Voivodes to
bring up to date characterization of the most environmental nuisance plants. The first polish
environmental one was enacted in January 31,1980 and before that we had environmental
issues in several separate acts (for example: The Water Act, The Air Protection Act). Taking
into account environmental behavior of the environmental users the ranking list was created.
The first lists were based on statistical data on environmental use as a main factor (amount
of water intake, discharged load of pollutants into the surface waters, ground or air, amount
of wastes produced by plants). The rank had three levels:
• A - the heavy environmental users.
B - the medium environmental users.
• C - the lower environmental users.
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296 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In May 1989 characterizations were made and sent to the Chief Environmental
Protection Inspector. It appears that about 200 plants should be recognized as a heavy
polluters so new criteria were set and after a verification procedure it was established that
80 plants should be on the list. So in the end of 1989 the up-to-date "The List 80" was
created.
2 THE ECONOMIC CHANGES FORCED A NEW WAY OFTHINKING
After the first free election in Poland a new democratic government initiated
economic changes from so called "socialistic command economy" to a free market economy.
A result of those changes there was a collapse of some industrial sectors mainly responsible
for environmental pollution. We used to joke in Poland that Vice-Prime Minister Mr. Leszek
Balcerowicz (who was responsible for economic changes at that time) is the best
Environmental Protection Minister because the collapse of some industrial sectors caused
a 30% to 40% reduction of total pollution load discharged into the environment. It is plain
to see that recovery of the polish economy would be a very hard task to do without foreign
capital investment. During the negotiations procedure about potential investment a standard
issue was about environmental problems in a plant in question. Part of the feasibility studies
were environmental measurements carried out by potential foreign investors as well as
environmental impact assessment. After that the conditions of the contract were negotiated.
It is obvious that the price of the plant should be lower if the environmental problems were
serious. In some cases the foreign investors withdrew from negotiations because of the
environmental problems. After that lesson most of the plants have learned that it pays to
be environmentally friendly.
3 THE COMPLIANCE PROGRAM EXPERIMENT
Cooperation between The Polish National Environmental Protection Inspection and
US Environmental Protection Agency has a long history and one of the fruits of this
cooperation was an idea about the compliance program experiment. The essence of that
idea is that the plants with serious environmental problems have a chance to negotiate
environmental improvement programs with the voivodes given that correction of their
environmental compliance problems were complex and that negotiation would help to develop
pragmatic schedules for remedial action and financing of pollution control, local self-
government authorities and voivodeship environmental protection inspectors. The basis for
asking to take a part in this experiment was "The List 80." Very careful selection had be done
before four of the plants were chosen. They were:
• Czestochowa Iron Foundry.
Zinc Foundry in Miasteczko Slaskie.
Petrochemical Works in Plock.
Nitrogen Fertilizers Works in Kedzierzyn-Kozle.
The next step to implement the experiment was to train the participants in negotiation
procedure. It was done with a help of US Environmental Protection Agency in June 1997
a training course about negotiation techniques involved in compliance with environmental
requirements included the participants from:
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DABROWSKI, BOGUSLAW 297
• chief environmental protection inspectorate above mentioned plants;
• voivode offices;
self-governmental offices; and
• voivodeship environmental protection inspectorates.
Because earlier the papers about accession to the experiments were signed so the
negotiation procedure would be ready to start the negotiation procedures had different
progress depending on the plant in question but all of them were crowned with final agreement
about realization of the compliance program.
I had a chance to be one of the representatives from the part of Opole Voivodeship
Environmental Inspector in negotiations about the compliance program involved in Nitrogen
Fertilizers Works in Kedzierzyn-Kozle. The negotiations procedure was in an atmosphere
of understanding and good technical knowledge. We had several meetings and during the
one meeting in the middle of negotiation procedure there was one breaking point that the
plant was about to break the negotiations but after a half hour pause they returned to the
table and agreement was achieved. The results of the agreement have found their reflection
in the administrative decision issued by a voivode on a legal basis of the polish environmental
law.
The decision was issued in August 1998 and contained the following conditions:
shut down outdated nitric acid, sodium nitrate and nitrite installation and
construction a new nitric acid installation instead;
• urea installation modernization;
shut down of two outdated phthalic anhydrite installation and construction a
new one instead;
oxo-alcohols installation modernization;
waste water treatment plant modernization;
ash heap reclamation;
waste disposal stoppage and implementation wastes incineration;
dewatering and conditioning installation construction for sewage sludge;
sewage sludge dumping site reclamation; and
• sulfur dioxide emission reduction.
After that decision the plant will be taken off "The List 80." The measures mentioned
above have to be done within five years if not the plant in infamy will return on "The List 80."
The negotiations procedure and a final agreement have met a good public opinion response.
Nowadays the monitoring process of compliance programs implementation in all four plants
is under way.
4 THE COMPLIANCE PROGRAMS IN A NEW POLISH ENVIRONMENTAL
LAW; WHAT WILL BE A STICK ANDWHERE IS A CARROT?
In 1998 "The regulations about conditional taking off the list of the most
environmental nuisance plants in a national scale" were corrected according to the
experiences gained during the experiment with four plants.
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According to the polish negotiations about our accession to European Union we are
obliged to adapt our environmental law to the Union requirements. A response to those
requirements is a bill about new environmental law and the ordinance drafts to that bill which
were elaborated according to The Program PHARE/TACIS No. EC/EPP/91/1.2.4. One
chapter of that bill is about compliance programs. The negotiations procedure and
compliance programs in the bill are similar to those which were used in our experiment about
conditional taking off "The List 80" but the sticks and carrots are different.
Nowadays in Poland we have the following sticks:
a fees system (one has to pay for water intake, waste water discharged into
the surface waters or ground, pollution discharged into the air, waste disposal
and cutting off the trees and greenery); and
a fines or penalties system (for waste water discharged without a permit or with
permit violation, exceeding allowable air pollutants or noise limits, illegal waste
disposal).
One of our carrots is the possibility of postponing penalties or to arrange installments
for penalties payments when the plant is going to make an investment involved in removing
the reason for the penalty. Another one is a conditional taking off "The List 80."
In the bill a new possibilities appear.
The carrot are:
postponing the environmental fees up to five years;
agreement that 50% of environmental fees will be invested in the environmental
protection measures; and
conditional taking off the list of most environmental nuisance plants on a
national scale.
The sticks in a case of failure of the compliance program realization are:
the plant has to pay four times higher penalty;
one year environmental fees calculated on the base of the day they were
required; and
the plant returns on the list of the most environmental nuisance plants in a
national scale.
We hope that our new environmental law will be enacted before the end of the year
2000.
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THEME #4: CAPACITY BuiLorivG 299
THEME #4
CAPACITY BUILDING
An effort to build domestic, regional and international capacity to design and implement
effective environmental compliance and enforcement programs is at the heart of the purpose
for both the Fifth Internationa! Conference and ongoing international network. Each of the
workshops offered within this theme addressed one of several fundamental aspects of
developing capacity: management and organization issues, funding and resource
management issues, training and skill development issues and design of targeted strategies
for unique categories of sources. In addition, papers and exhibits were solicited to address
programs offered by various countries, NGOs and international organizations addressing the
following issues:
Capacity building goals for this organization.
Expertise, materials, training and/or support available or planned.
Priorities established for supporting capacity building needs.
How requests are made.
Successes achieved.
Priorities for global and regional capacity building were discussed based upon self
assessments of country progress submitted by each conference participant and refined
during the regional networking meetings at the Conference.
Theme #4 Workshops:
4 A Managing Centralized and Decentralized Programs; Achieving the Right
Balance of Roles and Relationships for Key Functions; Accountability
Measures, Compliance Indicators and Reporting
4 B Budgeting and Financing Environmental Compliance and Enforcement
Programs: How Much Enforcement is Enough
4 C Training Programs for Compliance Inspectors, Investigators and Legal
Personnel
4 D Setting Up and Managing Compliance Assistance Programs and
Information Outreach on Regulatory Requirements
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300 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 E The Science of Enforcement: Setting Up and Financing Laboratories;
Ensuring the Integrity of Sampling and Data Analysis; Scientific Support
for Enforcement
4 F Govemment/Municipal/Military: Compliance and Enforcement
Strategies
4 G Small and Medium Enterprises Compliance and Enforcement
Strategies
4H/4I Mobile Source Compliance Strategies and EnforcementNon-Point
Source Compliance and Enforcement Strategies
4 J Geographic or Resource-Based Compliance and Enforcement
Strategies
1. Summary of Theme #4 Panel Discussion, Moderator: M. de Nevers;
Rapporteurs: D. Mowday, J. A. Semones 301
A list of related papers for Therne #4 from other International Workshops and Conference
Proceedings are in Volume I
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THEME #4 PANEL DISCUSSION: CAPACITY BUILDING 301
SUMMARY OF THEME #4 PANEL DISCUSSION: CAPACITY BUILDING
Moderator: Michele de Nevers
Rapporteurs: David Mow/day, Jo Ann Semones
1 INTRODUCTION
The effort to build domestic, regional and international capacity to design and
implement effective environmental compliance and enforcement programs is at the heart of
the purpose for both the Fifth International Conference and ongoing international networks.
Each of the presentations offered within this theme addressed one of the several fundamental
aspects of developing capacity: management and organization issues, funding and resource
management issues, training and skill development issues and design of targeted strategies
for unique categories of sources.
2 PRESENTATIONS
Mr. Antonio Gonzalez Pastora, Director of the Central American Commission on
Sustainable Development discussed the establishment of a regional network for
environmental cooperation in Central America. The goal was to establish a regional
environmental cooperation regime, promote the creation of national environmental agencies,
support efficient environmental legislation and ensure appropriate levels of environmental
enforcemenfthroughout a whole region. A Central American Alliance for Sustainable
Development (ALIDES) was created. They did this through the establishment of regional
networks of legal experts, support for legislators, the conduct of training, provision of legal
assistance and promotion of partnerships, facilitation and dissemination of information,
including establishment of regional information centers. Included in the targeted groups to
build capacity were environmental prosecutors, environmental Attorneys General and
environmental police. To date 700 judges have been trained and there is now a Masters
degree program in environmental law. There is a regional technical body for Environmental
Impact Assessment and an independent body to deal with transboundary environmental
issues, including 3 binational water basin commissions.
Mr. Ken Macken, Acting Manager for the Environmental Protection Agency of Ireland
discussed how they evolved an Environmental Management System (EMS) into an integrated
permitting and licensing program, along with the funding mechanisms. A young agency
created only in 1992, they have been able to jump to the forefront of integrated environmental
management. Like most permitting bodies target setting and compliance monitoring is
conducted by the licensee. Now an EMS is included as a standard condition in every permit
along with the requirement for a Pollutant Release Transfer Register. The permit creates both
general objectives and long term targets. Though they are self imposed by the licensee, they
must be approve by the EPA. Examples of objectives contained in the permits are solvent
recovery programs, reduction of landfill load, and organic solvent replacement. The goal is
. to install a self-regulating process loop through the permit system. The universe of potential
facilities is 800 and to date 400 permits have been processed. The system is funded through
permit fees and annual enforcement fees which include document processing fees
(monitoring reports), site visit fees including travel costs and biannual audit fees.
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302 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. George D.O. Asiamah, Senior Program Officer for the Environmental Protection
Agency of Ghana discussed the establishment of an internal compliance and enforcement
network of the environmental and law enforcement agencies in their country. Called the CEN,
the network comprises representatives of all law enforcing agencies, including the Ghana
Police Service and all military services, the Attorney General's Department, eight separate
national regulatory bodies, such as the Departments of Forestry, Mines and Health, the
Ghana News Agency and the Ministry of Environment, Science and Technology. The
Network is chaired by the Executive Director of the Environmental Protection Agency. The
CEN is also broken down into subcommittees, each with a particular focus, such as small
and medium scale manufacturing, small and medium scale mining enterprises and noise
nuisance, which are chaired by a lead agency. The network is a problem solving forum for
potential environmental pollution cases that are referred to the Network. Its functions include
establishing common complaints and investigation procedures, creating public awareness,
coordination of joint inspections and verifications, capacity building for each of the member
bodies and assuring collaborative actions to ensure effective compliance and enforcement.
The referral procedure is that the EPA sends difficult cases to the CEN along with a detailed
investigative report. The appropriate CEN subcommittee then undertakes an independent
investigation to assess environmental impacts, which laws of which agencies have been
broken so as to coordinate joint prosecution, and periodic compliance monitoring if
appropriate. If violations are determined, the legal department of the EPA in cooperation with
the Attorney General's Department initiates prosecution proceedings. A total of 45 complaints
were received in 1997 up from 16 in 1995 and 39 in 1996. Within the short period of its
existence the CEN has speeded up permitting, resolved contentious pollution issues faster,
increased public awareness, and assured that prosecution proceedings of violators are
conducted more expeditiously. In the year and half of its existence the CEN has brought
about tremendous change to improve regulation, encourage voluntary compliance by
operators, assure better understanding and collaboration among law enforcement agencies
and is recommended for countries with limited resources allocated for environmental issues.
Mr. Christopher Currie, Chief of the Enforcement Management Division for
Environment Canada, described the critical role that a central government agency can play
to build capacity through training programs. In Canada responsibility for environmental
protection is divided between the federal and provincial governments with much of the actual
regulatory activity in the provinces. Even the federal agency is highly decentralized with no
line authority over its regional offices. While the federal agency as a whole tends to
concentrate on criminal and transboundary issues, the Headquarters enforcement office has
decided to focus on training as a central part of its mission. A nationwide tiered training
approach has been established for all environmental enforcement officials with general and
minimum competencies for certain job categories (e.g. legal, technical support,
management) and specialized competencies for particular types of regulations (e.g. for
hazardous waste inspectors). Following a critical parliamentary report this emphasis on
training and minimum competencies has been reinforced. Also, given the importance of
transboundary issues, such as hazardous waste, it has encouraged inter-agency in-country
networks for training with such agencies as Customs and the Royal Canadian Mounted
Police. Further, given current success within Canada, the Agency is now looking toward
to the establishment of external training networks with other countries.
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THEME #4 PANEL DISCUSSION: CAPACITY BUILDING 303
3 DISCUSSION
In response to a question about the prospects for utilization of electronic means for
regional networking, Mr. Pastora said that so far this has been difficult in Central America
but that a web page and CD ROM had been created to hold all relevant environmental
legislation. To assist increasing the capacity of individual countries other regional bodies
were being created such as a regional technical body of EIA and independent bodies to deal
with transboundary environmental issues, including 3 proposed bi-national water basin
commissions.
When asked how a small country like Ireland can deal with complicated and
complex industrial sectors, Mr. Macken said that their best advantage was to "play off' one
company's information against another. As to enforcement itself arising from their EMS and
permitting strategy, they rely on the reports coming in as part of the EMS requirement and
if such reports do not appear the Agency will pursue the company in a graduated scheme
of enforcement which seldom results in the need to go to court as most companies see EMS
as to their own economic advantage
One questioner noted that the Ghanian CEN model was one for the central
government and wanted to know the role of local government in environmental enforcement..
Mr. Asiamah responded that there were 110 districts in Ghana, each with an environmental
management commission with their own authorities and which were using the same
networking model at the local level. Regarding funding on the most common type of
enforcement order which are orders to relocate polluting industries away from encroaching
urbanization, Mr. Asiamah said that the offending facilities must pay for their own relocation.
4 CONCLUSION
There seem to be several models that may be employed to build capacity for
environmental enforcement. Central America demonstrates the utilization of multi-national
regional networks for information sharing and assistance. Ghana, on the other hand, utilizes
internal networks among all law enforcement agencies within a particular country to expedite
the enforcement process and make it more efficient in addition to building the individual
capacities of each cooperating agency. Ireland has adapted the EMS through inclusion in
permits to provide critical information to the enforcing agency. And finally Canada
demonstrates the critical role that a central government agency can play through coordinated
training programs to build the capacity of provincial and local entities as well as other federal
agencies involved in environmental enforcement.
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304 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP 4A: MANAGING CENTRALIZED AND DECENTRALIZED PROGRAMS 305
WORKSHOP 4A
MANAGING CENTRALIZED AND DECENTRALIZED
PROGRAMS; ACHIEVING THE RIGHT BALANCE OF
ROLES AND RELATIONSHIPS FOR KEY FUNCTIONS;
ACCOUNTABILITY MEASURES, COMPLIANCE
INDICATORS, AND REPORTING
Around the world organizations have gone through stages in which some decentralize key
functions related to environmental compliance and enforcement and some choose to
centralize some or all key functions related to environmental compliance and enforcement.
Decentralized management and public interest also demand improved ways to measure
progress and ensure accountability for results. The CEC in North America is producing a
report on compliance indicators which should also enhance discussions of this issue along
with the results of workshop discussions on measuring success at the Fourth International
Conference.
4. Summary of Workshop Discussion, Facilitators: T. Maslany, J. Peters;
Rapporteurs: C. Booth, D. Mowday 307
5. Keynote: Relationship Between the Legal Arm of Government and the Line
Environmental Agency or Ministry, Schiffer, Lois, J. :.. 311
6. U.S. Environmental Protection Agency National Performance Measures
Strategy for Environmental Compliance and Enforcement, Stahl, MichaelM. 319
Papers 1 - 3 for Workshop 4A and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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306 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 4A MANAGING CENTRALIZEDAND DECENTRALIZEDPROGAMS 307
SUMMARY OF WORKSHOP: MANAGING CENTRALIZED AND
DECENTRALIZED PROGRAMS
Facilitators: Tom Maslany, Jit Peters
Rapporteurs: David Mowday, Chris Booth
GOALS
Discussions were designed to address the following issues:
Basis for country decisions to mange the compliance and enforcement
functions in a centralized or decentralized manner and what has motivated
change from one system to another.
Advantages and disadvantages posed by centralization and decentralization.
Program relationships among levels of government in implementing
environmental permitting, compliance and enforcement programs that have
proven effective or ineffective.
How. priorities and strategic targets are defined, communicated and
implemented in both centralized and decentralized management systems.
How to develop and coordinate expertise and authorities across different
organizations that might have jurisdiction over an environmental problem.
How program personnel are held accountable and results reported in
decentralized versus centralized systems.
Use and development of compliance indicators.
1 INTRODUCTION
There are a variety of arrangements for delivering environmental programs. In most
countries there is a role for regional and/or local organizations as well as national. However,
even where there is just one national organization, there often are regional and/or local
departments. Whatever the arrangements, there are similar problems, in particular:
roles and responsibilities;
• consistency;
information sharing; and
misunderstandings and mistrust.
PAPERS
Papers related to this workshop include:
Compliance and Enforcement in Ghana, W. Y. Ahorttor and G. D. O. Asiamah
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308 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Decentralized Agencies with Overlapping Jurisdictions -- A Problem for
Enforcement, F. Grenade-Nurse
Local Enforcement: A Fundamental Component of Environmental Compliance,
L Spahr
3 DISCUSSION SUMMARY
The group agreed that there is a need for certain issues to be addressed centrally.
However, there was some disagreement over some issues. Agreement was reached that
the following were functions for the national bodies:
Setting minimum ambient standards, to ensure human health and the
environment are adequately protected and to prevent "pollution havens"
(although regional or local bodies could set tighter standards if they wished).
Enacting basic legislation which can apply generally, (it may implement
international conventions protocols for example), or legislation which acts as
a framework under which regional or local legislation can be enacted.
Developing and publishing test methods.
Providing national reports on, for example, the state of the environment,
compliance.
There was no consensus over whether the following functions were matters for
central or devolved control:
Procedural requirements for application and determination of permits. For
example the information needed to be provided by the applicant, or time scales
and consultation arrangements by the permitting body.
• Emission standards for certain substances and classes of industry.
Technological requirements of design and operation of industrial production
processes and abatement systems. E.g. BAT (best available techniques) as
used in the European Union.
National guidance / rules / standards need to include an explanation of the
circumstances in which discretion can be applied locally and the scope of any such
discretion.
There was a discussion on how to make our management systems work better. It
was agreed that there needs to be clear roles and responsibilities and good information
systems. However, whatever the system, it was agreed that human interaction between
different levels is essential to make any system work. This works best when mutual
understanding, trust and respect are established. The concept of "trust and verify" was raised.
Verification is needed in both directions. For example for regional / local levels to show to
National what they are doing and for National level to show why a protection measure is really
needed and then (later) to show that it has worked. Regular formal meetings and informal
contacts are essential to ensure things work smoothly.
Compartmentalization of environmental issues is artificial but widely practiced. As
well as Compartmentalization into each media (air, water, land) and geographic
Compartmentalization, there is the frequent separation of environmental protection and
natural resource protection. Recognizing the holistic continuum of environmental issues is
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WORKSHOP SUMMARV: 4A MANAGING' CENTRALIZED AND DECENTRALIZED PROGAMS 309
essential for successful environmental protection. Administrative boundaries often prevent
the development of optimal or sustainable environmental solutions. Whatever the
administrative arrangements, a mutual focus on achieving specific environmental goals, will
greatly assist the smooth working and success of different levels of organizations, and the
people within them. Perhaps in future we should look to a new model for administrative
structures for environmental decision making, which recognizes the continuum of the
environment.
4 CONCLUSION
There is a diversity of arrangements for decentralizing some or all environmental
regulation. None of the systems work smoothly.
There is a need for certain issues to be addressed centrally, for example:
ambient standards;
basic legislation; and
test methods.
There were some issues where opinions varied as to whether they should be
addressed centrally, for example:
procedural requirements for application and determination of permits;
emission standards; and
best available techniques.
National guidance/rules/standards need to include an explanation of the
circumstances in which discretion can be applied locally and the scope of any such
discretion.
Human interaction between different levels is essential to make any system work.
This works best when mutual understanding, trust and respect are established.
Compartmentalization of environmental issues is artificial. Recognizing the holistic
continuum of environmental issues is essential for successful environmental protection.
Whatever the administrative arrangements, a mutual focus on achieving specific
environmental goals, will greatly assist the smooth working and success of different levels
of organizations, and the people within them.
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310 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SCHJFFER, LOIS 311
KEYNOTE: RELATIONSHIP BETWEEN THE LEGAL ARM OF
GOVERNMENT AND THE LINE ENVIRONNMENTAL AGENCY OR
MINISTRY
SCHIFFER, LOIS J.
Assistant Attorney General, Environment and Natural Resources Division U S
P epartment of Justice' 95° Pennsylvania Avenue, NW, Room 2718, Washington, DC
20530
Good afternoon. It is a great honor to participate in this INECE conference and to
meet so many distinguished and committed people working throughout the world to use
effective enforcement to ensure that we protect our environment for ourselves, our children
9raf f6". °Ur presence here, and the level of discussion and evideni
JS!" T ' "nderscores that Pollution knows no borders and that both the
,3 * °, P 3t °CCUrS in °ne Part Of the globe r|PPles across the world. Also,
s natural resources, our forests, minerals and wildlife, cross the boundaries of our
f f V an relationshiPS we form here encompass the globe and will
whos h«rH°wan?aner-Panet- ''T t0 Start by Particular|y Banking Cheryl Wasserman,
whose hard work, persistence, and great charm have made such a contribution to getting
mis event to happen. °
tP .in* ™ e t0pi° °f the relationshiP between the legal arm of government and
rfnlrS env'ronmetlta' aiencv or m|nistry. I come to this topic as the Assistant Attorney
General in charge of the Environment and Natural Resources Division in our United States
envPironmT^ 6nWe F*0™* the United States and federal agencies in court, on
environments cases. Our client agencies include pollution protection agencies, public land
management agencies, agencies responsible for natural resource management and
protection and federal government agencies that undertake activities subject to pollution
? M s,Hpervise 40° lawyers and we handle cases that arise under S
S> My theme~and a ^ret to at least some success-is communicate
e' co°Perate-the 4 Cs- 't may network as the 4 "seas" in other languages
mpmh h ' RJ°nterey on the Bav- in this U.N. year of the oceans, it is an easyV
PiTZch KeTe- !! a,n aspect °f in-countrV networking. While the structure and exact
rela t.onsh.p between the legal arm of government and the environmental protection ministry
^aynaam6nt°^COUntrylH0 T^' the f3Ct '8 that S0me kind of s»<* an institutional
arrangement occurs worldwide.
iii«ti~ nrif State«' ourfederal agencies have a decentralized component. At the
Justice Department, my office .s mostly in Washington, DC. Separate from us, but also
working on many issues including some environmental cases, are the 93 United States
Attorneys Offices, one in each judicial district, which is a state or subdivision of a state and
™ f "? ' fupervise °rcontrol-with which we communicate, consult, coordinate, and
lr,Tn fCDAnN °urntatlon s environmental protection agency, the Environmental Protection
Agency (EPA), has ten reg.onal offices throughout the country that have a fair level of
autonomy and that require, as we work together, the 4 C's. Further, in the United States
aotmmany °°H ??' ^'^l™ C°ntrO' is handled by a co™°ination of the federal/national
government and states or other subnational units of government. Often, these subnational
governments-and in the United States that includes some sovereign goJemmentooMndtol
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312 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
tribes—have their own departments of justice, and a version of the relationship between the
justice ministry and the pollution control agency occurs at that level. All of us must address
the potential for disagreements, disjunctions or overlap between the national governments
and the subnational units. Because those relationships as well require communication,
consultation, coordination, and cooperation, and because they are of interest to so many
of us, I will discuss those as well. So, my theme is 4 C's times three—it is about
relationships between and among environmental agencies and justice agencies at the
national and subnational level.
I will focus on the system in the United States not because I think it is the only way
or even the best way, but because I am most familiar with it. The 4 C's approach we are
using, and the specific steps we are taking to implement those 4 C's, may be of some help
in your own systems and countries. So fasten your seat belts, and let's set sail.
1 DEPARTMENT OF JUSTICE WORK
First, what is the work of our Environment and Natural Resources Division of the
federal Justice Department? The purpose of a central Department of Justice in my country
is to assure that the United States, with its many agencies, laws and points of view, takes
one position and speaks with one voice when we go to court. Part of our job, therefore, is
to work with agencies to assure a consistent and unified position. Further, in our system,
criminal cases can be prosecuted only by prosecuting agencies—the Justice Department
at the federal level, state attorneys' general offices at the state level, and district attorneys
at the local level. At the federal level, EPA has its own lawyers, and they do important work,
including administive enforcement but when the case goes to court it requires Justice
Department action.
The work of the Environmental and Natural Resources Division at the Justice
Department falls into five categories:
First, we litigate pollution cases. These include civil enforcement actions, where
we go to court to get orders requiring companies to come into compliance with the pollution
protection laws, or to clean up hazardous waste sites, and orders to pay a civil money
penalty. We work to be sure that the penalty recovers the economic benefit of non-
compliance—what the company saved by breaking the law, plus, so that others will be
deterred from unlawful conduct, and so that we create a level playing field—that is, companies
that break the law do not get economic advantage over law-abiding companies. We also
prosecute polluters criminally if the environmental harm is serious; if the conduct impairs
the integrity of the system, such as falsifying reports; or there is repetitive misconduct. These
pollution cases are referred to us by EPA, the Coast Guard, the Department of
Transportation, which is responsible for pipeline safety and pipeline spills; the Army Corps
of Engineers, which protects wetlands; the FBI, which investigates some environmental
crimes; the Customs Service, which polices shipments into and out of the country; and other
agencies.
We also defend pollution cases when the regulated community or the NGO
environmental community challenges EPA regulations; or they challenge pollution-related
decisions. We also defend other agencies that have the same obligations as private
companies to comply with pollution protection laws (such as the Departments of Defense
and Energy and the Interior).
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SCHIFFER, LOIS 313
Second, we handle cases related to the management of our public lands and natural
resources. In the United States, the federal government owns and manages about 30% of
pur lands, including national forests and national parks. The management of these areas,
including oil and gas leasing, grazing permits, and strip mining, is often controversial—for
example, the Forest Service sets the balance between timber cutting and wildlife protection
in our national forests. Our client agencies include the Department of the Interior, the Forest
Service, and the National Oceanic and Atmospheric Administration—and we work hard to
assure one voice in court. A component of this work is handling cases, and advising
agencies, related to environmental impact statements.
Third, we bring and defend cases under the federal fish and wildlife laws. These
cases include civil and criminal enforcement actions to protect endangered species and to
stop the illegal smuggling of birds and other protected wildlife; and to defend challenges to
agency decisions that implement the Endangered Species Act. An important part of this
work is defending cases related to fisheries management and the coastal zone. In this
International Year of the Ocean, this work is noteworthy.
Fourth, we handle cases to carry out the United States' trust responsibility to Indian
Tribes; and defend federal agency actions related to tribes and individual Native Americans
when they challenge decisions in court.
Finally, we handle cases to acquire private property for public uses, including
establishing compensation for federal government actions which in effect constitute a "taking"
of property as required under our Constitution.
It is a wide range of cases, and our docket sometimes puts us in the middle of
disputes between and. among federal agencies. On the pollution front, for example, EPA and
the Army Corps of Engineers sometimes have different ideas about what the wetlands
protection law means, and a court deadline helps us force a resolution of the issue.
As you can see from this description of our duties, there is a great need and
opportunity for the 4 C's of communication, consultation, coordination, and cooperation. So
that you may have a specific sense of steps we use to apply the 4 C's, I will focus on our
work with EPA on enforcement of the pollution protection laws. EPA is charged by law with
protecting our waters, drinking water, air, and land, as well as with regulating pesticides and
other chemicals, and related work. To carry out our task of representing EPA in Court, and
to facilitate EPA in its work, we have communicated, consulted, coordinated and cooperated
in at least 12 concrete ways:
1 We have a framework Memorandum of Understanding, put in place in 1977,
which commits our two agencies to work together, gives the Justice Department
certain schedules for reviewing cases, requires reports on case status, and
gives EPA certain rights if we decide not to bring a case. This is a clearly
communicated basis for our work together.
2 Steve Herman and I, as heads of our respective components at the
enforcement office of EPA and the Justice Department, have made clear that
we will not tolerate fights over which agency has the right or authority to act
we call these turf fights and that our staffs should work cooperatively in handling
cases.
3 We have collaborated to develop a series of policy and guidance documents
that inform our case decisions. An example is guidance about calculating
penalties in Clean Water Act cases resolved by negotiated settlements. This
guidance helps ensure consistency in cases, and agreement between the
staffs at the two agencies.
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314 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 We have monthly meetings with senior managers in both agencies. The
meetings have an agenda agreed to in advance, and provide a regular
opportunity for sharing information and exchanging views. Any problems or
disagreement can be put on the agenda, and solved at the meeting. We get
to know each other, so that working together and solving problems during the
remainder of the month is made easier.
5 We have regular docket review sessions. Justice Department enforcement
lawyers are assigned to particular EPA regions, and supervisors for those
Justice Department enforcement lawyers go to the EPA Regions every few
months to review all existing and prospective enforcement cases on the docket.
Discussions cover what these cases are, how to handle them, whether they
should be settled, and any policy problems that need resolution.
6 We help train each other's staffs. Training covers technical matters and legal
and litigation issues. The common knowledge and understanding this training
promotes among the people who do the work is a great contributor to smoother
relationships.
7 We "detail," or assign, a few lawyers to each other's offices for six-month
periods. This exchange creates greater appreciation for the work of the other
office—a direct example of walking in someone else's shoes, or should I say
paddling the other person's boat.
8 We have what I call an early warning request. If EPA is considering taking a
major or difficult action, or, on the defense side, is working on a controversial
regulation or action that is sure to be challenged in court, we urge EPA to let
us know early, so that we can discuss approaches and how to assure that the
case will be one we can win in court.
9 One of my deputies or I, as well as other supervisors, attend the periodic
meetings EPA holds of regional directors for particular media "air, water and
land" programs. At the meetings, we can identify and resolve issues, and work
to assure consistency across the country. This also helps address some of
the problems that decentralization can cause. This has been especially
successful for our Superfund hazardous waste cleanup program, where we
have created a real partnership between the staffs.
10 We invite EPA officials to speak and teach at training sessions we conduct
for Assistant United States Attorneys. Again, this helps to ensure enthusiasm
for working together and nationwide consistency in the Justice Department's
somewhat decentralized system.
11 Our attorneys work with EPA to train state and local prosecutors, investigators,
and technical personnel in the development of environmental enforcement
cases.
12 We have established a number of task forces on enforcement, and invite EPA
participation. These include task forces on CFC smuggling and on cleaning
up our Mississippi River I will discuss these more fully in a moment.
Now, let's take a break from this list implementing communication, consultation,
coordination and cooperation, and look at three concrete examples of how it has worked.
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SCHIFFER, LOIS 315
• Our CFC initiative is an international environmental enforcement initiative that
depends on significant cooperation between EPA, the Justice Department, and other
agencies. As I am sure most of you know, the Montreal Protocol of 1988 requires phaseout
of CFC manufacture, so that use of this ozone-depleting substance will be gradually
eliminated. After the United States essentially stopped manufacture of the substance, a
black market of illegally imported CFC's developed to serve the ready market of 80 million
American cars built before 1994 that generally use CFC's in their air conditioning system.
An Assistant United States Attorney in Miami, Florida, prosecuted several smugglers of
CFC's. Based on the example of those prosecutions, we invited investigators from EPA,
the Customs Service, the Internal Revenue Service, and our FBI, as well as Assistant U.S.'
Attorneys from key geographic areas, to take part in a national CFC enforcement meeting.
The Customs Service used its tracking systems to identify likely ports of entry. The
successful meeting established networks and led to seizures of CFC's in five states and
Puerto Rico. Our CFC workgroup now meets every three months, and has expanded to
include investigators from most major U.S. ports and representatives from Canada. We have
obtained 62 convictions with an aggregate 36 years of prison time, and more than $58 million
in fines and restitution for CFC smuggling. We have since brought additional charges,
including charges related to Halon 1301, another ozone depleting substance used primarily
as a fire suppressant. These efforts are a tribute to effective communication, consultation,
cooperation and coordination among EPA, the Justice Department and other federal
agencies.
Another case we worked on with EPA was a civil enforcement action against Texaco
Pipeline and its subsidiary for 17 separate oil discharges from its pipelines, spilling more
than 4800 barrels of oil into waters and land in the State of Kansas, in violation of the Oil
Pollution Act. The case settled with the company agreeing to pay a civil penalty of more
than $900,000, and closing more then 580 miles of old pipeline. The company agreed that
it would prevent future spills by burying pipeline of water crossings and improving inspection
and maintenance programs. We developed the case and the settlement through close
cooperation and coordination between EPA and the Justice Department.
Finally, there is a good example of close cooperation between EPA and the Justice
Department in a series of cases where citizens' groups or NGO's played a critically important
role. We actively support the citizen suit provisions of our laws, and encourage working with
citizens groups on enforcement actions. Three major U.S. cities: Atlanta, Birmingham and
New Orleans, had sewage treatment systems that were seriously impaired, with raw
untreated sewage in the streets and streams. Citizens' groups brought suit against Atlanta
and Birmingham, and eventually we worked with EPA to join in those suits with the consent
of the NGO's. We have now accomplished major settlements in both cases, with the cities
undertaking major steps to improve their treatment systems, and major special projects to
benefit the community by purchasing riparian lands and greenways to protect the river
systems. In New Orleans, EPA and we brought the suit, which we settled for a program of
New Orleans completely revamping its sewage piping, and a citizen's group played an
important role in developing a wonderful special project.
These cases and initiatives were carried out under our programs that are informed
by the 4 C's, and are the result of those approaches.
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316 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 RELATIONSHIP WITH STATES
While it is not strictly within the topic of relationships between the environment
ministry and the justice ministry, relationships between federal environmental and justice
ministries on one hand, and state environmental and justice agencies on the other, is also
an important component of environmental protection that depends, similarly, on the 4 Cs.
Our federal environmental laws set a national standard for pollution protection, and provide
that a state can assume primary responsibility for the pollution program if it adopts laws that
are at least as stringent as the federal laws. This assures all those who live in our country
a certain level of-environmental protection. Many states have assumed this responsibility
through delegation of specific programs. The federal government continues to have
enforcement authority in all cases, and our EPA has oversight responsibility over the states'
activities. EPA enters into written partnership agreements with delegated states that include
enforcement. Some states are vigorous in their enforcement efforts, and others are not. Some
challenge our federal government, and some are cooperative.
Nevertheless, we have made it a point to try to work cooperatively with the states
to better achieve effective enforcement and environmental compliance. Implementing the 4
Cs, we have another, shorter, list of examples that you may find useful.
First, I established a position in my office, a Counsel responsible for state and local
environmental affairs. That person acts as a point of contact for state officials, and for our
lawyers who are handling cases that affect states, to maximize the 4 Cs.
Second, we wrote a letter to each state Attorney General and each state
environmental agency telling them about our Counsel and our commitment to communication
and cooperation. We encourage the states to get in touch with us if they have a problem,
and urge them to work jointly with us on enforcement actions.
Third, we notify the state attorney general or pollution agency before we file a civil
enforcement action in that state, absent special circumstances. We use the opportunity
to invite the state's participation in the case.
Fourth, in our civil docket, we are bringing more cases jointly with states. The state
acts as co-plaintiff and works closely with our attorneys,
Fifth, on the criminal side, we have an especially noteworthy approach. With the
United States Attorneys Offices, we establish task forces or committees, comprised of
federal, state, and local, prosecutors and investigators, including EPA employees, that meet
regularly to exchange information, develop leads, and use the most effective enforcement
laws. The task forces and coordinating committee have been terrifically successful, and there
• is a strong criminal program in almost every jurisdiction that has a task force.
Sixth, senior members of my office and I participate in .meetings with EPA and state
environmental offices to exchange information and views, establish networks, and keep
channels of communication open.
A good example that reflects the 4 Cs of communicate, consult, coordinate,
cooperate, with both EPA and the states, is the final enforcement initiative I will mention the
Mississippi River initiative.
The Mississippi River is a major river that flows from one of our northern states—
Minnesota—the length of the country to the Gulf of Mexico. It is one of our national treasures,
famous in literature—Mark Twain's famous novel Huckleberry Finn is set on the river—and
in history and commerce.
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SCHIFFER, LOIS 317
Together with its tributaries, the Mississippi drains over 40 percent of the land in the
United States, the second largest drainage of any river in the world. The river provides millions
of people with drinking water, serves as the flyway for multitudes of the continent's migratory
waterfowl, as a swimway for may fish species, and is a tremendous economic resource. The
river is highly polluted, ending in the Gulf of Mexico with a hypoxic dead zone.
The Mississippi River initiative is a comprehensive enforcement effort to protect and
restore the River, its tributaries and the surrounding communities. To protect the resources,
we have begun a coordinated effort to pursue polluters to the farthest corners of the
watershed. The Initiative employs the cooperative efforts of federal and state agencies: the
Washington Department of Justice, the local United States Attorneys, EPA's civil and criminal
enforcement offices in Washington and the EPA Regions, the United States Customs
Service, the United States Coast Guard, the United States Fish and Wildlife Service, the
Federal Bureau of Investigation, and States—including state attorneys general, state
environmental agencies, and other state and local agencies. We have had a series of
meetings with all of these people—an expanded in-country network—to work on identifying
violators, sharing information, and bringing enforcement actions. Together, these agencies
have successfully brought criminal, civil and administrative cases to get violators to comply
with the law and encourage-others to comply as well.
To give you a flavor of the magnitude of this effort, Attorney General Janet Reno—
for whom I am extremely proud to work and who loves the environment and natural
resources—announced this past September the following results of our collective work over
the prior year:
54 criminal convictions, over ten million dollars of criminal penalties and
restitution, and over eight years of prison terms;
18 civil judicial actions worth over 18 million dollars in civil penalties;
93 administrative cases involving 104 facilities obtaining $900,000 in civil
penalties; and
extensive injunctive relief to remedy past problems.
These cases address violations that included illegal dumping from barges, illegal
filling of wetlands, spills of oil and other hazardous materials, sewer overflows, and
discharges of chemicals such as cyanide, heave metals, and hydrofluoric acid into the
Mississippi River or its tributaries.
By combining forces across agencies at the national and subnational level, we are
sending a clear message that if a company or person unlawfully pollutes the nation's premier
river, that entity will be held accountable. Together, riding the 4 seas, we are moving towards
accomplishing our shared goal of protecting human health and the environment and restoring
this important national resource C the mighty Mississippi River.
3 CONCLUSION
I hope our voyage over the 4 seas of communication, consultation, coordination and
cooperation has provided you with a picture of steps that can be taken to address some of
the tensions and possible difficulties inherent when multiple agencies—at the federal/national
and subnational levels, work together as our ministries of justice and of the environment do
in the United States. I am moved by the work and commitment of the people at this
conference, who literally cover the world, to the voyage of effective environmental enforcement.
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In conclusion, in the field of environmental protection, we frequently refer to a Native
American concept known as "seventh generation" decision-making. Seventh-generation
thinking forces us to consider the future, to take into account not only our children and our
grandchildren, but their children and so on, seven generations out. It compels us to take
the long view. In everything we do to protect the environment, the Justice Department seeks
the wisdom that comes from taking the long view. I look forward to our continuing voyage
together, on the four seas, to the protection and preservation of our world's natural resources,
and to a clean and healthy environment. Thank You.
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STAHL, MICHAEL M. 319
U.S. ENVIRONMENTAL PROTECTION AGENCY NATIONAL
PERFORMANCE MEASURES STRATEGY FOR ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
STAHL, MICHAEL M.
Office of Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency, MC-2201 A, 401 M Street SW, Washington D.C. 20460
SUMMARY
In January, 1997 EPA's Office of Enforcement and Compliance Assurance initiated
the National Performance Measures Strategy to develop and implement an enhanced set
of performance measures for EPA's enforcement and compliance assurance program. This
article discusses the results of this effort and Office of Enforcement and Compliance
Assurance's plans and goals for performance measurement in the future.
1 INTRODUCTION
EPA's Office of Enforcement and Compliance Assurance is responsible - along with
state environmental agencies - for enforcing and ensuring compliance with the nation's
environmental laws. During the last two years (FY 1996-97) EPA regional and Headquarters
enforcement personnel conducted approximately 36,950 inspections of regulated facilities
and entities, referred about 721 civil judicial enforcement cases and 540 criminal enforcement
cases to the U.S. Department of Justice, issued about 2,183 administrative penalty orders
and 2,354 compliance orders and assessed approximately $436 million dollars in criminal,
civil and administrative penalties. For many years, these aggregate "numbers" have been
the sole measure of EPA's enforcement and compliance assurance program performance.
While they remain an important measure of program performance and accountability to the
public, they do not reveal the state of compliance among regulated entities, the environmental
results and impact from enforcement and compliance assurance activities, nor the extent
to which important environmental objectives and problems are being addressed.
Therefore, in order to present a more comprehensive picture of the impact of
enforcement and compliance activity nationwide, Office of Enforcement and Compliance
Assurance initiated the National Performance Measures Strategy in January of 1997. The
goal was to develop and implement an enhanced set of performance measures for EPA's
enforcement and compliance assurance program. This article describes those measures and
Office of Enforcement and Compliance Assurance's goals for the future.
2 COMPELLINGTRENDS ANDTHE NEED FOR ENHANCED PERFORMANCE
MEASURES
EPA identified the need to develop enhanced performance measures for its
enforcement and compliance assurance program as part of the Agency's September 1993
report announcing the reorganization of its enforcement program. That report cited the need
to develop "better ways to measure (the) impact" of enforcement and compliance assurance
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activities as an improvement desired by both external stakeholders and EPA enforcement
personnel. In addition, certain national trends in government, environmental protection and
enforcement and compliance assurance programs also compelled Office of Enforcement and
Compliance Assurance and the Agency to develop more systematic and comprehensive
performance measures.
The trend in government is toward results-based management and greater
accountability to taxpayers. At the Federal level, this trend is being realized through the
implementation of the Government Performance and Results Act, which requires Federal
agencies to develop strategic plans with goals, objectives, and performance measures.
Consistent with Government Performance and Results Act requirements and goals, EPA
initiated other related strategic planning and performance measurement efforts, including the
development of EPA's Strategic Plan and the development of Office of Enforcement and
Compliance Assurance's own strategic plan known as the National Enforcement and
Compliance Assurance Plan. States and local governments have also moved toward greater
accountability for results.
Some of the key elements of the trend in enforcement and compliance assurance
programs include strategic targeting for noncompliance problems, assessing risk to set
priorities, creating effective deterrence, and using a wider range of tools (i.e., not solely
inspections and enforcement actions) to increase compliance. Regulatory and law
enforcement agencies of many kinds -- not just those whose jurisdiction covers the
environment — are developing and integrating these approaches in order to optimize their
impact on compliance levels and/or human health and safety. The trend in environmental
protection is evidenced by a more sophisticated model of protection which integrates
incentive-based methods and traditional regulatory approaches, empowers the public with
more information about environmental problems and industry performance, and focuses on
a second generation of more diverse environmental problems and sources.
The Office of Enforcement and Compliance Assurance began to develop and
implement additional measures which capture outcomes in 1994. Over the last three and
a half years, the Office of Enforcement and Compliance Assurance convened a "Measures
of Success" work group, comprised of EPA headquarters and regional officials; developed
and implemented a Case Conclusion Data Sheet to gather new types of information about
environmental improvements resulting from completed cases; developed and implemented
a reporting measure for compliance assistance activities and realigned single-media data
bases to enable collection and analysis of compliance information by industry sector.
These initial activities enabled the Office of Enforcement and Compliance Assurance
to make progress in developing and implementing an enhanced set of performance
measures. The Office of Enforcement and Compliance Assurance can now supplement
traditional enforcement measures with more result-based measures, including: actions taken
by regulated entities as a result of enforcement; quantitative environmental impact and
qualitative environmental benefit of those actions; and industry-specific information about
noncompliance. Despite this progress, we still had "gaps" in our ability to measure
environmental impact. Enforcement output measurement needed to be further supplemented
by measuring improvements in environmental quality and the state of compliance among
regulated entities. We also needed to develop performance measures for new tools and
approaches being used to solve environmental problems, e.g., incentive policies to encourage
self-disclosure by industry, and compliance assistance efforts to help small businesses
understand and meet their compliance obligations. The National Performance Measures
Strategy is designed to fill in these "gaps."
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STAHL, MICHAEL M. 321
3 PRINCIPLES OFTHE NATIONAL PERFORMANCE MEASURES STRATEGY
The Office of Enforcement and Compliance Assurance began the public discourse
on performance measurement by asking regulatory partners, interested parties and
stakeholders, to provide ideas on a variety of issues related to performance measurement.^
Among the areas the Office of Enforcement and Compliance Assurance asked participants
to discuss were how to measure industry compliance with environmental laws and
regulations, and innovative approaches regulated entities used to measure their own
compliance efforts. The Office of Enforcement and Compliance Assurance also sought new
ideas being used by other environmental, regulatory, or law enforcement agencies to measure
the effects of their enforcement and compliance assurance programs, especially the
deterrent effect of enforcement activities. The Office of Enforcement and Compliance
Assurance also requested input on how to measure the effectiveness of its compliance
assistance and incentive activities, as well as the impact of its program in low income/minority
population communities.
Through the public meetings and focussed round table discussions in which the full
range of stakeholders, regulatory partners and interested parties participated, the Office of
Enforcement and Compliance Assurance gleaned these general guiding principles about
measuring the performance of its enforcement and compliance assurance program.
There are diverse and multiple audiences for enforcement and compliance
assurance performance measures.
A combination of measures -- quantitative and qualitative, statistical and
narrative, cumulative and categorical, national and localized - is necessary
to measure performance, inform management and serve the full range of
audience and purposes.
The value of individual performance measures and systems of measures should
be judged by whether they are relevant, transparent, credible, feasible,
functional and comprehensive.
Performance measures are most effective when they reflect management
priorities and are linked to a limited number of program goals and objectives.
Increased use of performance measures presents many challenges because
agencies or programs may influence - but not necessarily control - outcomes.
Problem-specific, tailor-made performance measures are effective for
evaluating performance in solving specific environmental and noncompliance
problems.
Performance measures are principally used to evaluate effectiveness and
manage more strategically, rather than simply reporting accomplishments to
the public in more interesting and informative ways.
The Office of Enforcement and Compliance Assurance used these guiding principles
and the ideas and suggestions about performance measurement and specific measures
received from stakeholders, regulatory partners, and experts to develop a measurement
framework called the "Performance Profile for Enforcement and Compliance Assurance"
which it will begin to implement in fiscal year 1998.
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4 ENHANCED PERFORMANCE MEASURES:THE PERFORMANCE PROFILE
FOR ERA'S ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM
4.1 Definitions
In formulating the Performance Profile, the Office of Enforcement and Compliance
Assurance uses a standard set of definitions developed by EPA and the Environmental
Council of the States (EGOS) and first used as Core Performance Measures contained in
Performance Partnership Agreements between EPA and individual states. The definitions
consist of three categories of measures - outputs, outcomes and environmental indicators.
Outputs are defined as quantitative or qualitative measures of important
activities, work products, or actions taken by EPA or by states under delegated
Federal programs.
• Outcomes are defined as quantitative or qualitative measures of changes in
the behavior of the public or regulated entities caused, at least in part, by
actions of government.
Environmental indicators are defined as quantitative or qualitative measures
over time of progress toward achieving environmental or human health
objectives.^
The National Performance Measures Strategy framework uses all three of these
categories of measures. Besides providing important information individually, the categories
also are interrelated -each category is strengthened by the other two, and each category
would be weakened or prone to misinterpretation in the absence of any of the others.
4.2 Environmental Indicator Category -- Impact on Environmental, Human Health,
and Noncompliance Problems
The first category of the Profile analyzes the impact of the enforcement and
compliance assurance program on selected environmental or human health problems. Impact
will be measured by conducting annual evaluation studies of how the enforcement and
compliance assurance program contributed to the achievement of selected Agency objectives
included in the EPA Strategic Plan. The objectives selected for evaluation will be from among
those targeted through an Office of Enforcement and Compliance Assurance enforcement
and compliance assurance strategy developed in consultation with the relevant EPA media
program(s). Evaluation studies will examine the Agency's overall progress in achieving the
objectives, identify the outputs and outcomes that contributed to the progress, and draw
plausible conclusions about the use and effectiveness of various enforcement and compliance
assurance tools and initiatives. Over time, these studies should help the Office of
Enforcement and Compliance Assurance clarify the links between its actions and
improvements in environmental quality, human health or compliance with environmental
requirements. [Measure: Annual evaluation studies of selected EPA objectives.
4.3 Outcome Category -- Effects on Behavior of Regulated Populations
The second category describes changes in the behavior of regulated populations.
The outcome category includes quantitative or qualitative measures of external behavior by
regulated entities caused, at least in part, by actions of EPA. This category includes three
types of measures: Levels of Compliance in Regulated Populations; Environmental
Improvements by Regulated Entities and Responses of Significant Violators.
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STAHL, MICHAEL M. 323
4.3.1 Measure: Levels of Compliance in Regulated Populations
The measure is the rates of noncompliance for populations that are fully-inspected,
required to self- report compliance information, targeted for special initiatives, or designated
as priority industry sectors. This set of measures provides an indication of the state of
compliance among regulated entities. Compliance levels can provide a broad measure of the
behavior of populations affected to some degree by enforcement and compliance assurance
activities.
4.3.2 Measure: Environmental or Human Health Improvements by Regulated Entities
The measure is the environmental and human health improvements initiated as a
result of EPA enforcement actions. This set provides an indication of the scope and type
of environmental improvements which can be attributed directly to completed EPA
enforcement actions. This data will be aggregated and presented by type of improvement,
industry sector, statute, and EPA Region. Si Supplemental measures in this set will include
pounds of pollutant reductions from enforcement cases and the results and dollar value of
injunctive relief. A recent example of our new ability to develop and display this type of
information can be found in the Annex to this paper.
4.3.3 Environmental or human health improvements from compliance assistance
tools and targeted initiatives
This set of measures provides an indication of the scope and types of improvements
resulting from compliance assistance tools and the delivery of compliance assistance
through targeted initiatives. Because these outcomes are very specific to the tool or initiative,
aggregating them nationally will be difficult. Instead, this measure will produce a set of
accomplishments which would be expressed in quantitative or qualitative terms.ffi..
4.3.4 Environmental or human health improvements from integrated enforcement and
compliance assurance initiatives
This set attempts to demonstrate the scope and types of improvements resulting
from initiatives which use some combination of compliance assistance, compliance
incentives, and enforcement. These outcomes are very specific to the initiative, and it may
not be possible to aggregate them in a national total. This measure is likely to produce
accomplishments described in both qualitative and quantitative terms. Establishing a
measure for integrated initiatives creates an incentive for the Office of Enforcement and
Compliance Assurance managers and staff to develop and conduct such initiatives, and to
design them in a way that facilitates measurement of outcomes.
4.3.5 Self-policing efforts by regulated entities using compliance incentive policies
This set indicates how many companies or facilities are identifying, correcting, and
disclosing violations under the terms of EPA's self-policing incentive policies. These data
will be presented by industry sector, statute, and EPA Region. This measure includes the
number of self-policing companies and facilities since the inception of the policy, and the
number doing so for the most recent fiscal year.®. This measure will also include data about
companies and facilities participating in other incentive programs designed to increase
compliance with specific requirements in exchange for a reduced penalty.
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324 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.3.6 Measure: Responses of Significant Violators
4.3.6.1 Average number of days for significant violators to return to compliance or enter
enforceable plans or agreements
This measure provides an indication of the behavior of significant violators regarding
their timeliness in addressing violations. This data will be aggregated and presented by
industry sector, statute, and EPA Region.
4.3.6.2 Percentage of significant violators with new or recurrent significant violations
within two years of receiving previous enforcement actions
This measure provides an indication of whether significant violators continue to violate
after a previous enforcement action. This data will be aggregated and presented by industry
sector, statute and EPA Region.
4.4 Output Category -- Enforcement and Compliance Assurance Activities
The third category of the Profile describes activities undertaken by EPA as part of
the enforcement and compliance assurance program. The output category includes
quantitative or qualitative measures of important activities, work products or actions taken.
There are four types of measures in the output category: Monitoring Compliance; Enforcing
the Law; Providing Assistance and Information; and Building Capacity.
4.4.1 Measure: Monitoring Compliance
4.4.1.1 Number of inspections, record reviews, responses to citizen complaints, and
investigations conducted
This set will provide an indication of EPA's monitoring "presence" among regulated
populations. Inspections, record reviews, and investigations are fundamental tools for
identifying instances and recognizing patterns of noncompliance. Data from this measure
will be aggregated and presented by industry sector, statute, and EPA Region. Supplemental
measures will include percentage of individual industry sectors inspected, and percentage
of inspections occurring in low income/minority communities or at previously uninspected
sites.
4.4.2 Measure: Enforcing the Law
4.4.2.1 Number of notices of violation issued, civil (administrative and judicial) and
criminal enforcement actions initiated and concluded, and number of
self-policing settlements concluded
This set will provide an indication of EPA's enforcement "presence" among regulated
populations. Enforcement actions provide a powerful deterrent to noncompliance, provide
incentives for voluntary compliance, and prevent noncomplying entities from getting an unfair
economic or competitive advantage over entities who invest resources in compliance.
Data from this measure would be aggregated and presented by industry sector,
statute, and EPA Region. Supplemental measures will include percentage of cases in low
income/minority communities, types of environmental impact from concluded cases, types
of Supplemental Environmental Projects from concluded cases, the number of significant
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STAHL, MICHAEL M. 325
violators relative to the number of inspections and number of regulated facilities, and jail time
and penalty amounts by statute. These measures can serve as "intermediate outcomes",
information about compliance that can be especially useful until valid compliance rates are
determined.
4-4.3 Measure: Providing Assistance and Information
4.4.3.1 Number of facilities/entities reached through: compliance assistance tools and
initiatives; distribution of compliance information.
This set will provide an indication of the amount and types of regulated entities
potentially affected by compliance assistance efforts, and the number and types of recipients
potentially empowered by information about facility or sector compliance. A supplemental
measure will be the number and types of compliance assistance and information tools
developed.
4.4.4 Measure: Building Capacity
4.4.4.1 Capacity building efforts provided by EPA to state, local or tribal programs.
This set will provide an indication of efforts made to build enforcement and
compliance assurance capacity among other levels of government. Capacity building efforts
include assistance with investigations or cases, and training programs to build specific skills
Capacity building by EPA has a "multiplier effect" by positioning other levels of government
to identify and address noncompliance. Data from this measure could be aggregated and
presented by type of assistance, type of recipient, and EPA Region. Supplemental
measures could include some indication of the quality and use of the capacity building effort.
5 THE PERFORMANCE PROFILE AS A MANAGEMENT AND
ACCOUNTABILITYTOOL
The framework of activities (outputs), effects on behavior (outcomes), and
environmental impacts (indicators) forms the Performance Profile for EPA's Enforcement and
Compliance Assurance Program. When implemented and utilized, the Profile will be a
valuable tool for EPA program managers and staff, the general public, environmentalists
environmental justice advocates, regulatory partners, Congress, oversight agencies and
regulated industries.
The Profile offers many advantages to measuring performance. The previous
approach focussed on a limited set of outputs and did not emphasize development and
analysis of outcome measures. The Profile improves upon that approach in several ways:
The Profile measures the full range of program outputs, including compliance
assistance, providing information to the public, compliance incentives, along
with the traditional output measures for compliance monitoring and
enforcement. Through the use of supplemental measures, the Profile moves
beyond mere counting of outputs to measure important operational aspects
of those outputs.
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The Profile begins to illustrate the links between activities.and effects by
combining outputs and outcomes in the same measurement system. Outputs
can be examined in conjunction with outcomes and managers can build their
understanding of combinations of outputs that might influence certain
outcomes.
The Profile connects program outputs and outcomes to EPA's Government
Performance and Results Act goals and objectives by more systematically
measuring the contribution of the enforcement and compliance assurance
program to the achievement of Agency objectives. It moves those objectives
to the forefront of management attention and thereby promotes more strategic
approaches to program management.
The Profile increases the power and value of each measure by combining them
in a set which can be used to meet a wide range of needs. Each measure
provides an important piece of information about the performance of EPA's
enforcement and compliance assurance program. But no single measure or
type of measure conveys enough information to evaluate fully the performance
of the program. The individual measures are similar to pieces of a puzzle or
mosaic: individually, the pieces do not describe very much about the whole;
together, the pieces can convey a coherent picture.
The Profile provides an instrument for improved program management. The
Profile measures activities and their results, and promotes evaluation of
program effectiveness. It provides an action tool for managers to develop and
modify strategies through fact-based analysis.
The Profile provides a window for improved accountability. The Profile makes
transparent to stakeholders, Congress, oversight agencies and the public the
key activities and results of the enforcement and compliance assurance
program, as well as the performance of regulated entities in complying with
the law.
6 CONTINUING IMPROVEMENT OF PERFORMANCE MEASURES
One of the Office of Enforcement and Compliance Assurance's objectives is to
continue to seek and implement enhanced performance measures. This objective reflects
an understanding that developing and using performance measures is an ongoing anc
iterative process. The Office of Enforcement and Compliance Assurance will pursue this
objective through a variety of means designed to ensure that performance measuremenl
contributes effectively to the continued improvement of the enforcement and compliance
assurance program. The Office of Enforcement and Compliance Assurance's goal is to full>
implement or conduct pilot projects (possibly with state regulatory agencies, externa
stakeholders, and other interested parties) for each of the measures during FY 1998.
As part of this process, the Office of Enforcement and Compliance Assurance wil
continue working with state environmental agencies to align performance measuremen
efforts, review current data reporting and collection systems, and explore ways to provide
the public with electronic access to Profile data. The Office of Enforcement and Compliance
Assurance has also undertaken a review of significant noncompliance policies to determine
if revisions of definitions or other features are necessary. Potential changes to current polic;
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STAHL, MICHAEL M. 327
may have an impact on some of the measures. The Office of Enforcement and Compliance
Assurance will also continue to examine ways to measure the deterrent effect of its activities.
A number of the studies, articles, and reports which EPA reviewed in developing the Strategy
describe approaches to measuring the deterrent effect of enforcement strategies or tools,
including many used in regulatory programs other than environmental protection. Some of
these approaches deserve further review for their applicability to environmental enforcement
and compliance assurance programs.
The Office of Enforcement and Compliance Assurance will also explore how best
to translate the performance measures in the Profile into personnel performance standards
that will motivate and (if necessary) change behavior of the EPA managers and staff to
emphasize important activities and results, and will continue to actively pursue and learn
from other regulatory and enforcement agencies' efforts, such as GPRA implementation
efforts, to develop and use performance measures. Valuable lessons can be learned from
their efforts and from oversight agencies' reviews of them.
As the Office of Enforcement and Compliance Assurance gains more experience
and confidence in using the performance measures it will better be able to analyze the
relationship of resource inputs, such as dollars and personnel utilization, to outputs and
outcomes. It seems clear that the Government Performance and Results Act envisions this
linkage between activity and performance. The Strategy will enable EPA to more effectively
evaluate the results and impact of its enforcement and compliance programs, strategically
plan and target its activities, and apply resources in more efficient and cost-effective ways.
The National Performance Measures Strategy is an important step in the Office of
Enforcement and Compliance Assurance's continued efforts to establish more meaningful
and comprehensive performance measures. Implementation of the Performance Profile has
been a major priority of the Office of Enforcement and Compliance Assurance throughout
Fiscal Year 1998, and the use and refinement of the Profile will be a priority for the foreseeable
future. This is an ambitious undertaking that will require a significant commitment of
resources. However, given its importance for helping EPA assess how it is carrying out its
fundamental mission to protect human health and the environment, it is an effort that must
- and will - be made.
Fora more in-depth discussion about the National Performance Measures Strategy,
please refer to "Measuring the Performance of EPA's Enforcement and Compliance
Assurance Program" the final report of the Measures Strategy released December 22,1997.
This report, as well as more information and related documents about the Strategy, can be
found on OECA's web-site at: http://www.epa.gov/oeca/perfmeas. Annex 1 contains excerpts
from an April 13, 1999 Memorandum from Frederick F. Stiehl, Director of Enforcement
Planning, Targeting and Data Division in the Office of Compliance, Office of Enforcement and
Compliance Assurance, on the subject of "FY 1998 RECAP Measures of Success
Management Report." RECAP Stands for Reporting for Enforcement and Compliance
Assurance Priorities. The Annex includes a master list of Tables and Graphs in that report
and selected tables and graphs.
ENDNOTES AND REFERENCES
1. The Office of Enforcement and Compliance Assurance conducted more than 20
public meetings and round table sessions, consulted with experts and
practitioners, and reviewed dozens of studies and articles. Ideas about better
performance measures have been offered by representatives of national and local
environmental organizations, environmental justice advocates, regulated industries
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328 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
and companies, state environmental protection agencies and associations, state
attorneys general offices and associations, federal oversight and management
agencies, federal regulatory and law enforcement agencies, environmental policy
institutes, Congressional staff, and academic experts. See Steve Herman,
"Environmental Performance Data Helps EPA measure the Impact of its
Environmental Enforcement and Compliance Assurance Program," National
Environmental Enforcement Journal. April 1997. This paper draws directly from a
paper published in the National Association of Attorney General's Journal article
already published (Stahl, Michael M., "EPA's National Performance Measures
Strategy," National Association of Attorneys General (NAAG) Environmental
Enforcement Journal, December 1997/January 1998).
2. These definitions are also consistent with similar definitions used in the
Government Performance and Results Act.
3. The Office of Enforcement and Compliance Assurance collected this type of
information for FY 1996 and FY 1997 on the Case Conclusion Data Sheet. For FY
1997, for example, about one-third of all activities ("tasks") required by civil judicial
and administrative enforcement settlements called for regulated entities to
physically change the way they operated their facilities or reduce emissions or
discharges to the environment. Another one-third of the activities ("tasks") required
by civil enforcement settlements called for regulated entities to improve their
environmental management systems, take preventive actions to avoid
noncompliance or enhance the "public's right to know" through such actions as
conducting tests or environmental audits, complying with the Toxic Release
Inventory or other reporting or record keeping requirements, properly manifesting
hazardous wastes, etc. The data also indicated that about 43 percent of the
injunctive relief and 54 percent of the Supplemental Environmental Projects
provided additional human health/worker protection. Similarly, 27 percent of
injunctive relief and 24 percent of Supplemental Environmental Projects protected
natural ecosystems.
4. EPA and several state environmental agencies (e.g., Massachusetts, Connecticut,
Washington, Oregon, Illinois) have conducted assistance initiatives targeted at
specific industry sectors. Some of these initiatives have produced outcome data
about environmental improvements at facilities receiving compliance assistance.
For example, some initiatives documented increased use of
environmentally-beneficial business practices at facilities receiving compliance
assistance
5. For example, since the inception of the self-policing policy 234 companies
voluntarily disclosed violations at more than 750 facilities nationwide and EPA has
settled with 78 companies at 423 facilities.
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STAHL, MICHAEL M. 329
ANNEX 1 ENFORCEMENT ACTIVITY AND ENVIRONMENTAL
RESULTS MEASURES IN THE UNITED STATES, 10/97-10/98"
EXAMPLES
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330
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
FY 1998 Measures of Success Management Report: List of Tables and Graphs
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STAHL, MICHAEL M. 331
Environmental Results Measures for Enforcement
1998 settlements. Multiple complying actions were reported for some settlements.
'lying actions ware reported for 3,103 of the 3,
1,000,000,000
100,000,000
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Wetlands Fill Material
Carbon Monoxide
Battery Casing Chips
Explosives
TSS
Sludge
Wood Tar
Oil Used/Waste/Spills
NOx
Wastewater
Particulate Matter
Paint- waste/sol vents
Sewage
Fecal Colliform
Asbestos- Materials
Liquid Asphalt
Lead
CFCs
610,832,822
344,216,000
188,434,000
112,000,167
96,000,000
63,547,926
53,400,000
50,000,000
46,129,576
23,656,162
21,473,824
10,946,000
8,662,038
8,413,300
7,364,280
7,139,733
6,300,000
5,415,642
5,039,470
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332
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Criminal Enforcement: Examples of Activity and Environmental Results Measures
Compliance Activities Resulting from FY1998 Criminal Investigations/Resolutions
80 _>
Storage/Disposal Change 76
Emission/Discharge Change 67
Removal 49
Remediation 45
Monitoring 40
Process Change 38
Recordkeeping 31
Use Reduction 20
Audit 19
Cleanup 19
Permit Application 13
Cases Requiring Compliance 295
Total No. of Cases 417
% Requiring Compliance 0.707434
OECA/OC/EPTDD/TEB - December 10.1998
Data reflects the cotrpliance activities resulting from 420 crirrinal investigations/cases concluded during FY 1998.
Qualitative Environmental Impacts of FY 1998 Criminal Cases
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. Human Health Protecfion 151
Ecosystem ProtecSon 102
Increased FadJState/Local Knowledge 96
IncreasedPublicAwareness 80
V\brkerProtec8on 79
Reductions Besond Compliance Requirements 21
Environmental Resoration 13
OECAICC/EPTDD/TEB -Oecsmb«10.199a
Data reflects the predicted benefits of 420 criminal investigations/cases condudeddurirg FY1998.
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STAHL, MICHAEL M. 333
Examples of Enforcement Activity Measures
FY 1998 EPA Case Initiations and Conclusions by Statute
Referrals to
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EPCRA: Emergency Planning and Community Right to Know Act TSCA: Toxic Substances Control Act
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334 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Dollar Value of EPA Enforcement Actions Concluded in FY 1998
200.0V
160.0
120.0
0.0
EPA Criminal Penalties
EPA Civil Penalties
FY1996 FY1997 FY1998
FY1996
FY1997
FY1998
Q Judicial DAdm'nistrative
Value of Injunctive Relief
FY96
Value of EPA Supplemental Environmental
Projects (SEPs)
FY97
FY98
FY96
FY97
FY98
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STAHL, MICHAEL M. 335
EPA Enforcement Case Values Beyond Penalty Assessments - FY 1996 to FY 1998
Value of Supplemental Environmental Projects Incorporated in Settlements
$100,000,000
$90,000,000
$80,000,000
$70,000,000
$60,000,000
$50,000,000
$40,000,000
$30,000,000
$20,000,000
$10,000,000
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FY97
FY98
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• SDWA QTSCA • Other
£: C'i8an ^ ACt FIFRA: Fugioida, Insecticide, Fungicide and Rodenticida Act
CWA: Clean Water Act RCRA: Resource Conservation and Recovery Act: solid and hazardous waste
CERCLA: Comprehensive Emergency Response and Cleanup Liability Act SDWA: Safe Drinking Water Act
EPCRA: Emergency Planning and Community Right to Know Act TSCA: Toxic Substances Control Act
Injunctive Relief Value Incorporated in Settlements
$2,000,000,000 -,
$1,600,000,000 -
$1200,000,000 -
$800,000,000 -
$400,000,000 -
FY96
FY97
FY98
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336 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
EPA Compliance Assistance Efforts Reach 246,602 Regulated Entities During FY 1998
Nature of Compliance Assistance Activities
Media
Based
86%
Distribution of Media-based Assistance Activities
Distribution of Sector-based Assistance Ac
Vtorkshops/
Meetings/
Training
11%
Telephone
Hotline
18%
On-site Visits
1%
Tools
Distributed
70%
Workshops/
Meetings/
Training
11%,
Telephone
Hotline
6%
On-site Visit!
1%
Represents 211,696 media-based assistance activities
Represents 34,906 sector-based assistance <
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WORKSHOP 4B: BUDGETING AND FINANCING 337
WORKSHOP 4B
BUDGETING AND FINANCING ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT PROGRAMS:
HOW MUCH ENFORCEMENT IS ENOUGH
Any environmental compliance and enforcement program is a highly leveraged undertaking
in which limited resources are expended to wield even greater influence over the behavior of
regulated sources of pollution, illegal practices or illegal use of resources. This discussion
benefited from two capacity building documents,'one entitled, "Financing Environmental
Permit, Compliance Monitoring and Enforcement Programs" prepared for the Fourth
International Conference and the second, "Strategic Targeting for Environmental Compliance
and Enforcement Programs" commissioned for the Fifth International Conference.
1. Summary of Workshop Discussion, Facilitators: H, Laing, K. Macken;
Rapporteur: R. Kreizenbeck .'. 339
A list of related papers for Workshop 4B from other International Workshops and
Conference Proceedings is in Volume 1
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338 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 4B BUDGETING AND FINANCING 339
SUMMARY OF WORKSHOP: BUDGETING AND FINANCING
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT PROGRAMS
Facilitators: Harley Laing, Ken Macken
Rapporteur: Ron Kreizenbeck
GOALS
Discussions were designed to address the following issues:
The minimum human and capital resource needs for starting an environmental
compliance and enforcement program: can it be defined, if so, what they are.
How those needs change over time to that of a mature program.
On what basis officials responsible for environmental compliance and
enforcement programs have made a successful case for funding those
programs.
How officials have ensured an effective balance in funding program elements
needed to support:
- Personnel versus equipment.
- Technical versus level support.
- Field personnel versus policy and management support.
- Inspection and related compliance monitoring activities designed to detect
violations versus legal and other program personnel to respond to and follow
up on violations detected.
What creative financing schemes countries and NGOs have developed.
• Financing schemes designed to also provide incentives for compliance and
how well have these worked.
Cost cutting measures program officials have developed when faced with
budget cuts to maintain program integrity and how ell they have worked,
including:
- Use of third party inspectors or purchase of laboratory support.
- Use of self-certifications and monitoring.
- Automation in enforcement.
- Strategic targeting schemes.
1 INTRODUCTION
The session of approximately 23 participants opened with a discussion on the type
of budgeting process each participant employed in their respective location. The
overwhelming majority of those present were from emerging programs who relied upon
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340 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
outside sources of funding for the environmental enforcement program at the current stage
of their development. The discussion centered on maximizing the use of the donor program,
while funding a self-sustaining program for the future.
2 PAPERS
No new papers were prepared for this workshop.
3 DISCUSSION SUMMARY
3.1 Securing Donor Funding from Out of the Country Areas
The issue of sustaining funding in developing nations, or developed nations
undergoing financial difficulties was a salient one, given the present work market conditions.
The need to continue donor aid from developed countries and organizations such as the World
Bank is critical for a base program. In addition to the World Bank, specific mention was
USAID and UNEP funding.
3.2 Other Country Funding of Environmental Programs and the Role of NGOs
The role of NGOs and the need to work cooperatively with them to secure public
support and attention to environmental issues was acknowledged as critical to environmental
program success. It was also acknowledged that the NGO assistance may come in the
form of legal actions against the government environmental agency. A NGO action in India
brought attention to shortcomings in environmental law protecting natural resources was
highlighted as a force for positive change. The result was a modification of the law and
renewed support for the environmental agency to enforce it.
The NGO reinforced the need to secure donor aid to initiate activities until a proven
record could generate support and funding from other sources. In most situations a need
for base level funding is essential to maintain the organization. The World Bank
Environmental Institution Development Fund was cited as a good model for building capacity.
3.3 Financing Scheme
Ireland has developed a permitting and audit program in which the regulated entity
pays a fee for the issuing agency to review the environmental management system (EMS)
on a regular basis. Several other examples were offered of country financing schemes
including:
Penalties from NGO action retained in a designated trust fund.
Reduced taxes on air, waste, and water treatment technology.
Natural resource usage fees.
Prescribed set-aside from timber harvest from an environmental agency.
• Fees on imports such as tires, batteries, etc,
• National fee schedule for government services, permits, inspections and
consultations.
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WORKSHOP SUMMARY: 4B BUDGETING AND FINANCING 341
3.4 Efficient Use of the Funds
Ensuring limited resources are used efficiently is important. Specific mention was
made of two actions to ensure program efficiency:
• Training and capacity building.
• Use of monitoring and assessment tools.
3.5 Priority Setting Considerations for Maximum Efficiency for Use of Funds
The limited general revenues allocated to environmental programs, and within that
allocation to enforcement and compliance programs place a heavy burden on the programs
to show immediate results. Given the time frame between legal actions and the resulting
deterrent effect or environmental improvement, the need to be strategic in selecting actions
is paramount. Common elements of this strategy include: 1) initially selecting projects that
have a high potential for early success, 2) targeting efforts regionally to focus both public
input and expert information, 3) maximize the use of relatively inexpensive expert information
from outside sources or other governments such as GIS or satellite imagery, 4) flexibility to
adjust the scope of the project to meet budget and completion targets. During discussions,
the following approaches were identified by participants:
Obtaining full input from stakeholders.
Collecting expert information (use of GIS satellite imagery).
Built in mechanisms for periodic review and adjustment.
Select projects that have high potential for early success.
Set priority for each region to obtain a public buy in.
4 CONCLUSION
Building effective environmental programs requires a solid core funding mechanism
to succeed. Innovative financing schemes along with clear priority setting mechanism are
essential to the success of the program. The principle that the polluter pays is an accepted
basis for developing a sustainable funding mechanism for funding environmental programs.
However, in difficult financial times, these sources of revenue for environmental programs
diminish along with the rest of the economy. Even designated revenue streams such as
permit fees can be diverted to non-environmental programs.
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342 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
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WORKSHOP 4C: TRAINING PROGRAMS 343
WORKSHOP 4C
TRAINING PROGRAMS FOR COMPLIANCE INSPECTOR,
INVESTIGATOR AND LEGAL PERSONNEL
Discussions built upon a capacity building support document commissioned for the Fifth
International Conference: "Inspector Training Compendium, Course comparison and
International examples of formal Training Programs" as well as the results of projects within
Western Europe and North America to exchange and develop training materials and a project
within Western Europe to define standards for training of environmental inspectors. A
complementary project undertaken by Interpol is developing a compendium on environmental
training for police.
3. Summary of Workshop Discussion, Facilitators: S. Bromm, C. Currie,
E. Devaney, A. Steinmetz; Rapporteurs: R. Cheatham, A. Lauterback 345
4. EnvironmentCanada's National Training Program - Building Capacity,
Currie, Chris 351
Papers 1 - 2 for Workshop 4C and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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344 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 4C TRAINING PROGRAMS 345
SUMMARY OF WORKSHOP: TRAINING PROGRAMS FOR COMPLIANCE
INSPECTOR, INVESTIGATOR AND LEGAL PERSONNEL
Facilitators: Workshop 4C: Earl Devaney, Chris Currie
Workshop 4CC: Susan Bromm, Alex Steinmetz
Rapporteurs: Workshop 4C: Reggie Cheatham
Workshop 4CC: Andrew Lauterback
GOALS
Discussions were designed to address and consider the following issues:
• How different countries define training needs for environmental inspectors, for
legal enforcement personnel, for criminal investigators, or other personnel, and
what is similar or different and why. How different countries defined the skills
and knowledge needed to perform enforcement related functions well.
Approaches countries have taken in training personnel:
- How training programs have evolved and whether there are common
patterns.
- For those countries who have established formal training programs; what
was the impetus, how were funding needs and programs defined and
implemented.
- How funding needs and programs are defined.
- How training is delivered in various countries. What approaches countries
have developed to train personnel in a manner which meets budget
constraints.
- The potential for innovative technology in training enforcement personnel
(e.g. satellite training and interactive CD-ROMs).
- The relative importance of and reliance on classroom training, reading
material, on-the-job training, field work observation.
Identification of needs and opportunities for sharing training materials among
nations which are not country-specific and how that can best be done,
including a role for INECE.
How countries assess the qualifications of enforcement personnel. What
mechanisms work best under what circumstances including consideration of
performance appraisals, written tests, observation of practice, and other forms
of testing or use of qualifications?
1 INTRODUCTION
The issues associated with training programs for compliance and enforcement
personnel has appeared at all five International Conferences on Compliance and Enforcement.
The continuous need for training as a starting point for building an enforcement and
compliance program or the need for training to address advanced or complex issues appears
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346 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE
to be a reoccurring theme among environmental enforcers world wide. The goals and
objectives listed above represent a sample of many challenges identified by previous and
current conference participants. Workshop participants identified the need to learn from each
others training experiences, the basics of establishing training programs and the identification
of current opportunities and available resources for training as the fundamental elements of
expectations from this session. The variety of participants from both developed and
developing environmental programs proved invaluable to addressing the above mentioned
expectations.
These workshops discussed how different countries define training needs for their
regulatory inspectors, law enforcement officers, the regulatory community, judges and
magistrates, prosecutors and the general public. Training needs are dictated, in part, by
the level of expertise in the target group, the size of the country and the environmental
program, the indigenous culture, and the available resources. Participants exchanged ideas
on methods to meet the training needs of their programs under these challenging conditions.
2 PAPERS
Several authors developed topic .papers associated with training programs for
compliance inspectors, investigators, and legal personnel. The following are presented in
the Fifth International Conference on Environmental Compliance and Enforcement
Proceedings:
Enforcement Training Programs, Currie, Christopher (Volume 2)
Synopsis of International Inspector Training Course Compendium, Course and
Program Comparison (Volume 1)
UNEP Judicial Symposia on The Role of Judiciary in Promoting Sustainable
Development, Kaniaru, Donald, Kurukulasuriya, Lai, and Okidi, Charles
(Volume 1)
Enforcing Environmental Law in Central America: Regional Environmental Law
Program experience, Gonzalez Pastora, Marco A. (Volume 1)
3 DISCUSSION SUMMARY: WORKSHOP 3C
In addition to the expectations identified for this session, workshop participants
presented specific training issues and needs confronting their environmental programs. The
establishment of training programs that train everyone from inspectors to judges was a
common theme, and the need for establishing training contacts and approaches continued
to emphasize that the base of successful training efforts will always be dependent on
resource availability and usage efficiencies.
3.1 DefiningTraining Needs
Workshop participants identified training needs associated with knowledge, skills,
and attitude of all enforcement personnel. From an inspector perspective, science and
engineering backgrounds were considered more favorable backgrounds for inspection
personnel to have since the skills of inspection and investigation could be more readily
integrated more efficiently because many of the requirements associated with environmental
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WORKSHOP SUMMARY: 4C TRAINING PROGRAMS 34 7
protection are technically based. Prosecutors and Judges training needs were viewed more
in the context of awareness and appreciation of the many complex issues to allow for more
effective presentation and rulings. In addition to the pure regulatory and technical training
needs for all groups, communications, ethics and basic investigative techniques were
considered the highest priority. Health and safety training was also considered significant
in order to insure the protection of inspection personnel from serious harm.
3.2 How to Train the Various Groups in the Enforcement Process
The genera! consensus on how to train the various groups in the enforcement process
clearly identified that each group should be trained separately. However, the group also
recognized the need for joint training sessions so that all participants in the enforcement
process will gain a greater understanding and respect for the roles and limitations of each
actor in the enforcement process. In several countries, joint sessions have shown
demonstrated success by increasing awareness and responsiveness to environmental
issues. Regardless of whether the training is delivered separately or jointly, the need for
training at all levels in the enforcement process is in high demand.
3.3 What Kind of Training is Needed?
In order to assess the various types of training needed, the workshop participants
identified seven areas of training needs and delivery mechanisms. They are:
Basic inspection, investigation and environmental requirement training.
Advanced inspection, investigation and environmental requirement training.
• Refresher training.
Technology training.
Key ingredients training for processes and problems.
On-the-job training to build capacity and experience.
Citizen training to support tips and complaints.
Both those with developing and developed environmental programs agreed that the
above training needs would further enhance their efforts to ensure environmental compliance.
The mere fact that in all programs the transition of environmental personnel in and out of
specific roles in the enforcement process constitutes the need for continuous training
opportunities. As environmental requirements change and issue become more complex,
training will always be in strong demand.
3.4 FinancingTraining
Resources continue to control the success of training efforts of all workshop
participants. Developed environmental programs tend to have more resources allocated to
training efforts than emerging programs. Many participants identified the need for training
partnerships with other countries with greater capacity to assist their emerging programs.
Train-the-trainer approaches were identified as an opportunity to maximize the efficiency of
resource usage. This delivery mechanism is one of many currently being utilized to limit
the impact on resources. Technology based training such as satellite and computer based
training as well as partnership efforts similar to those currently used by INTERPOL are all
providing more training to those in need at a reduced cost.
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348 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.5 Conclusion
Workshop participants clearly identified the need for training as a starting point for
building an enforcement and compliance program. The fundamental need for environmental
knowledge, skills and attitudes outline the overall categories of training needs. These needs
may be both basic or advanced, but will generally involve regulatory requirements,
investigative techniques and other environmentally related issues. Understanding the fact
that training is dependent upon resource commitments, money and access will continue to
be a challenge in the development and delivery of training. To more efficiently utilize the
limited resources currently available, partnerships, train-the-trainer, and innovative
technology should all be considered to effectively deliver training.
4 DISCUSSION SUMMARY: WORKSHOP 4CC
4.1 Training Needs and Status of Training Programs by Participating Countries
Although training needs can vary from country to country there was consensus that
training demands were not being met. One participant stated that training was the weakest
link in the environmental program. Some countries have no formalized training programs at
all, but rather rely on on-the-job training, often with an examination at the end of period of
time. It was recognized that some educational information and materials may exist, it is
often not accessible due to the unavailability of necessary technology or competing demands.
In Ecuador and other countries, one of the greatest challenges to an effective environmental
training program is the widely divergent cultures and languages that are prevalent.
A few countries prioritized generalized training for environmental inspectors in order
for them to be familiar with the panoply of environmental offenses that could be confronted.
Others prefer training on specific environmental offenses or programs that are of particular
concern in the country; for example, air pollution from stacks and automobiles. In addition
to training on substantive environmental matters, it was felt that inspectors should also be
trained on how to deal with politicians and the general public and how to maintain a high level
of professional ethics. Personnel dealing with hazardous waste, especially those providing
initial emergency response need to be trained on personal safety. In addition to substantive
environmental training, inspectors need to be informed of the responsibilities of colleagues
in order to facilitate communication, coordination and a general appreciation of one another.
Training should not be limited to inspectors, investigators, and staff lawyers. There
are others within government that need to be educated about environmental enforcement.
In Nepal and other countries, judges, local governmental officials and NGOs are trained on
environmental enforcement. In the Bahamas, there is a training program for magistrates and
prosecutors. It is believed that uneven training of magistrates leads to uneven imposition
of sanctions for environmental violations. In Uganda, not only are judges and prosecutors
trained on environmental programs, but so are private attorneys. Personnel within
environmental ministries who draft the laws and regulations need to be trained in order to
ensure that provisions are enforceable.
In addition to training for governmental inspectors and other personnel, one
participant stated that the regulated community and the public also needed to be trained.
The regulated community should be trained in order to learn how to comply with the
environmental laws. The public should be trained to recognize environmental offenses and
who to call when such offenses are observed. This is being done in Nigeria. The public needs
to be informed of the environmental risks that are faced. Community-right-to-know laws
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WORKSHOP SUMMARY: 4C TRAINING PROGRAMS 349
should be enacted. Another important reason for providing training to the public is to boost
the appreciation and reputation of environmental enforcement personnel, which it was believed
to be quite low. Also, it was stated that NGOs could play an important role in providing
training to the governmental authorities and the general public. It was also advocated that
industry could provide training to the environmental inspectors on the engineering and
operation of some systems.
4.2 Possible Structural Methods to Meet Training Needs
Resources have been provided through private funding sources, like the World Bank
and through regional efforts and other countries. Some participants shared experiences
whereby inspectors traveled to other countries to learn about environmental enforcement.
There were also instances where environmental enforcement personnel traveled to host
countries to provide training. The Bahamas, for one, has participated in environmental
enforcement training via satellite link, although hot all of the islands within the country have
that technological capability. There was consensus that CD ROM is a more viable
technology than the internet because it is more readily accessible at the present time. One
participant stated that the CD ROM method should be supplemented with experienced
trainers, but others felt that that may be too costly. Train-the-trainer courses are a cost
effective approach to train a larger audience and ensure that cultural, programmatic and
language concerns are taken into account.
It was widely believed that regional approaches to training were best; this approach
allows for training to be tailored to meet the specific demands of the region. It was also
believed that INECE could provide an indispensable service in being the link with regional
networks on training. It could find trainers and funding sources and facilitate contacts.
It was mentioned that Interpol is developing a train-the-trainer course for local law
enforcement in order to sensitize police to environmental violations, how to recognize them
and provide first response; in most instances, this means contacting the appropriate
administrative agency. The course will also give an elementary overview of personal safety
concerns that the law enforcement officer may encounter. The first Interpol training course
is scheduled for March, 1999 for the countries of Central and Eastern Europe. Thereafter,
the course will be offered in other regions of the world. Those countries interested in
participating in this course should contact the Interpol representative present at this
conference or their Interpol National Central Bureau.
4.3 Conclusion
Training for inspectors is considered to be the weakest link in an effective
environmental enforcement program. It lags behind demand for many reasons, mostly
insufficient resources to provide it to enforcement personnel. Training needs vary depending
upon the size of the country, the size of the enforcement program, the expertise of the staff,
and the cultural and language considerations within the country. Training is not only needed
for enforcement personnel; i.e., inspectors, staff lawyers and investigators. It is also needed
for judges, magistrates, prosecutors, NGOs, the regulated community, and of course, the
general public.
Although training needs frequently are not being satisfied, several approaches are
available and others suggested in order to bridge the gap. These proposals include new
technology like satellite links and CD-ROM, teaching methodologies like train-the-trainer
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programs, and exploring sources for funding and training. In this last regard", it is believed
that INECE could play a vital role in establishing a link with regional networks to assist in
locating training programs and funding.
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ENVIRONMENT CANADA'S NATIONAL ENFORCEMENT TRAINING
PROGRAM - BUILDING CAPACITY
CURRIE, CHRISTOPHER
Office of Enforcement, Enforcement Management Division, Environment Canada, Place
Vincent Massey, 17th Floor, 351 St. Joseph Boulevard Hull, Quebec K1AOH3, Canada
SUMMARY
Environment Canada began a "needs analysis" study in 1995 to determine the skills
and knowledge needed for enforcement officers. This resulted in an overall view presented
in a working catalogue. The results are presented in this contribution just as the future plans
in a formal "Human Resource Plan."
1 INTRODUCTION
Canada is a country of much cultural, physical and geographic diversity. It is at
present the second largest country in the world, second only to the Russian Federation. It
ranks 32nd in terms of population, with 30.3 million citizens, the vast majority of whom live
within 100 kilometers of the border with the United States. Its total area is almost 10 million
square kilometers, which by way of comparison is equal in area to 28 united Germanys, 13
Chiles, or 25 Zimbabwes. Our coastline spans three oceans - the Atlantic, the Pacific and
the Arctic - and is almost 250,000 kilometers long. The land border with the United States
(including Alaska) is approximately nine thousand kilometers, and has been undefended
since 1814. An average annual snowfall in Charlottetown, on the Atlantic coast, is 339
centimeters, while in Victoria, on the Pacific coast, it is but 47 centimeters. We have, without
doubt, more hockey rinks - both indoor and outdoor - than any other country in the world.
2 THE CONSTITUTION
Environment as a subject is not addressed in the Canadian Constitution, which was
and continues to be the basis of the federation created in 1867. Responsibility for
environmental protection is shared between ten provincial governments, three territorial
governments, and the federal government. The national Parliament is located in the capital
city of Ottawa, in the province of Ontario. In very general terms, provincial governments have
jurisdiction over matters relating to land and natural resources. The federal government is
responsible for the criminal law, international affairs and all matters of a transboundary
(interprovincial or international) nature. It is also largely responsible for legislation affecting
activities undertaken in the northern territories.
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3 ENVIRONMENT CANADA'S ENFORCEMENT PROGRAM
Despite the fact that Environment Canada was created in 1973, in recognition of the
need to protect our natural heritage, no specific office was charged with the responsibility
for enforcing the offence provisions of the early legislation. In 1988 the Canadian
Environmental Protection Act (CEPA) became law, combining innovative provisions relating
to the control of toxic chemicals with existing legislation on clean water and air, environmental
contaminants and ocean dumping. New enforcement powers were also included. Inspector
designations were provided to a large number of staff. The increasing visibility of the
enforcement function eventually prompted the creation of an Office of Enforcement in 1990.
This Office, now comprised of four divisions, remains the largest component of an
expanded Headquarters Enforcement Branch. Its key roles relate to ensuring national
consistency and in providing support to our five regional enforcement operations. Because
Environment Canada is a decentralized department, constructed on the principles of "matrix
management", the headquarters Enforcement Branch has no line authority over regional
enforcement officers. It does, however, retain functional responsibility for the enforcement
program. Regional operations are essentially independent, subject to consensual
arrangements reached to achieve national consistency in policy, priorities and operational
approaches.
4 DESIGNATION OF INSPECTORS
The Office of Enforcement is responsible for approving the designation of each and
every inspector, on behalf of the Minister of Environment. The policy context for doing so
- indicating when a designation will be approved - has been formalized. Headquarters and
regional managers have agreed to follow a designation policy document which clearly
delineates the circumstances and requirements of such requests.
The training division of the Office of Enforcement maintains a database which records
and tracks all training received by individual enforcement officers, as well as the future dates
when refresher training is required. Designations are confirmed on a regular basis to ensure
that the required skills are maintained. Members of the division recognized, early in 1995,
the need for greater national consistency in terms of the "competencies" that both existing
and new enforcement officers must have and maintain over time. The focus was on
knowledge-based competencies, generally defined as including formal and informal
education, intelligence, degree of knowledge, experience and skill, which determine how well
a person performs his or her job. Four general categories of knowledge were identified:
Technical, Occupational Health and Safety, Legal and Management. Candidates are
traditionally recruited, and promoted, based on these competencies. Particular attention
was given to matters involving Occupational Health and Safety - the result of a national "job
hazard/job risk" analysis performed after three work related fatalities. Members of the
National Training Committee, representing Headquarters and all regions, pollution and wildlife
programs, agreed that competencies must be clearly identified.
5 NEEDS ANALYSIS STUDY
A comprehensive "needs analysis" study began in 1995. The objectives of the study
were as follows:
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CURRIE, CHRISTOPHER 353
Determine the skill and knowledge sets required of wildlife officers, inspectors
and investigators, on both a regional and national level, in order for them to
accomplish their jobs.
Determine the skill and knowledge sets that wildlife officers, inspectors and
investigators currently possess.
Identify gaps between these two areas on both a regional and national level.
Develop a strategy for addressing these gaps.
Identify training needs common to all three positions.
Determine the basic core competencies required by each position.
• Relate these core competencies to a system of minimum standards.
• Research training programs and standards in other jurisdictions.
Make recommendations regarding general training issues.
Pollution inspectors and investigators and wildlife officers were requested to respond
to questionnaires designed for the functions of each category of officer. They provided in
detail all training that they received in their careers, both formal and informal. Focus groups
were organized in all regions of the country, enabling a representative cross-section of
enforcement staff to meet together and discuss with each other the substantive information
being provided and compiled. The individual "job descriptions" of each enforcement officer
were also gathered and reviewed, to compare theoretical tasks with the real work that people
conducted on a day to day basis.
The result was a tiered approach, completed in 1996. "Threshold competencies"
- those that must be possessed by a person when applying for a position, the minimum
standard - were defined as "Primary Core Competencies". These are the competencies which
represent the first level of skills required to adequately perform job duties. These
competencies were as noted above divided into four general categories: Legal, Technical,
Occupational Health and Safety, and Management.
The second level of skills are those of a specialized nature, which officers will aspire
to and achieve over time as experience and training are gained. These were called
"Secondary Core Competencies", the second level of skills which vary according to each of
the four category of officer. Although described using the four general categories noted above,
and although many of the same advanced skills are required by all four types of officer, there
are many that are quite different.
6 MINIMUM STANDARDS ANDTRAINING OF INSPECTORS
6.1 Linkage of Training to the Inspector Designation Process
Since the completion of the Needs Analysis in 1996, significant efforts have been
made to link the competencies to specific elements of each training course in order to ensure
that the training program accurately responds to the actual needs of all officers. Designation
occurs only after the minimum standard has been successfully achieved. Each individual
must successfully complete his or her basic training.
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6.2 Training Catalogue and Schedule of Offerings
A training catalogue is updated annually which provides detailed information to all
staff on the most current information on course content and scheduling. General skills
training is conducted regularly, for example with regard to sampling techniques and forensic
accounting. Course modules are specifically linked to Primary and Secondary Core
Competencies.
Regulations created under the various pieces of legislation for which Environment
Canada is responsible are the focus of other training sessions. These courses focus on the
specific elements and requirements of each regulation, which address a wide range of topics
falling within federal jurisdiction. Many of the highest profile regulations reflect in a domestic
sense the commitments made by Canada under such international agreements as the Basel
Convention'(hazardous wastes), the Montreal Protocol (ozone-depleting substances), and
the Convention on International Trade in Endangered Species (CITES).
6.3 Development of Course Materials
The majority of all course materials are prepared by departmental staff. The
Headquarters training division chairs a national working group, comprised of at least one
representative from each of our five regions, which is responsible for the development and
delivery of each course. Course development and design is achieved through consensus.
As has been mentioned at the Monterey Conference in a different context, the importance
of "in-country networks", working together to address a common challenge through
consensus, is essential. Innovative means are required to overcome barriers and ensure
continuous and long term improvement.
Departmental staff who do not work in the enforcement program are relied upon to
provide expertise in developing materials and in delivering certain modules of regulation
specific training. They are involved in assisting enforcement staff in addressing the
substantive and often highly technical aspects of the regulations.
7 INVOLVEMENT OF ENFORCEMENT WITH OTHER FUNCTIONS
7.1 Regulation Development
In addition, the enforcement program itself is getting more involved in the regulation
making process, working with subject matter experts to ensure that the policy aims of the
regulation are achievable. Legal requirements must be enforceable. The text must be well
written and clear, to ensure that enforcement field staff can both understand and apply the
law.
In addition, the Department's Legal Service provides invaluable input not only in terms
of drafting regulatory text, but also in terms of assisting us in the development of training
materials.
7.2 Customs
Environment Canada is a small organization, currently possessing approximately
100 field staff for both pollution and wildlife enforcement nationally. Partnerships with other
agencies are essential. Our Customs counterparts are our "eyes and ears" at the border,
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CURRIE, CHRISTOPHER 355
and we are working with them to develop computer based, self-taught training programs on
the Department's priority regulations - export and import of hazardous wastes, ozone-
depleting substances, and endangered wildlife.
7.3 Police and Law Enforcement Training
We work regularly with the Royal Canadian Mounted Police at their training centre
in Regina, Saskatchewan. Courses offered and under development include an advanced
training package for wildlife officers, firearms training for wildlife officers, and beginning in the
fall of 1999 peace officer training for all of our existing pollution inspectors and investigators
whose status is about to change with amendments to Canadian Environmental Protection
Act. Provincial and territorial governments are participating with us in an effort to develop
a national curriculum for inspector training, one that would be modular, portable, and flexible.
7.4 External Partnerships
External partnerships are also important. Within North America we work with our
counterparts in the United States in a great many bilateral enforcement associations, and
participate often in joint workshops and training exercises. The Commission on
Environmental Cooperation in Montreal, established in a side agreement to the North
American Free Trade Agreement, results in many trilateral initiatives with Mexico. The
Secretariat of the Basel Convention, Montreal Protocol and CITES are important partners.
INTERPOL and-the member countries of the G-8 have in recent years recognized the growing
importance of environmental crime. Many bilateral agreements have been signed between
Environment Canada and individual countries, often including obligations with regard to
sharing enforcement expertise and knowledge on a reciprocal basis. The immense potential
of regional networks established through INECE is well recognized by those attending this
Conference.
8 THEFUTURE
A Parliamentary Standing Committee on Environment and Sustainable Development
conducted hearings in the spring of 1998 which focused on Environment Canada's
enforcement program. A series of comprehensive recommendations resulted. The
Department prepared a formal response to the Committee, on behalf of the Government. One
element of this response dealt with the training of enforcement staff. In the months that
followed the Response, a number of specific enforcement projects were approved by senior
management within the Department. One of these involves building upon "ongoing efforts
to provide a national framework for the hiring, training and advancement of enforcement
officers and managers through completion of a formal Human Resource Plan".
The strategy for developing this Human Resources Plan for enforcement personnel
involved the organization of a workshop in March of 1999. The objectives of the workshop
included the following:
Agree on components of a Human Resources Framework and how they fit
together, including but not limited to competencies, organizational structure,
career development, recruitment and retention, and succession planning.
Establish knowledge based competencies for enforcement managers,
including but not limited to skills, knowledge and education.
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Establish behavioral based competencies for enforcement management and
staff, including but not limited to motives, values, attitudes, and self-image.
The Needs Analysis completed in 1996 now forms the foundation for additional work
and improvement. The Department has recognized that identifying knowledge based
competencies for enforcement officers alone is but one approach. It has acknowledged that
managers in headquarters and in regional offices must also have the appropriate knowledge,
experience and skills to make good enforcement decisions.
Similarly, the move to identify behavioral based competencies for both managers
and staff recognizes that knowledge must be applied, that superior performers must also
exhibit behavioral competencies that positively affect job performance. The general
categories of behavioral competencies address:
Problem solving - analytical thinking, conceptual thinking, strategic thinking.
• Personal and corporate effectiveness - building partnerships with stakeholders,
concern for health and safety, direct communication, ethics and values, impact
and influence, information seeking, listening/understanding and responding,
planning/organizing and communicating, results orientation, self-confidence,
self-control, teamwork and cooperation.
Leadership - leadership of organizational change, developing others, team
leadership.
Work continues to advance the Human Resource Plan in its entirety. The immediate
focus has necessarily been on updating the knowledge based competencies for enforcement
staff, identifying those that should apply to managers, and identifying for the first time the
most appropriate behavioral competencies for both. Much remains to be done.
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WORKSHOP 4D: SETTING UP AND MANAGING COMPLIANCE ASSISTANCE PROGRAMS 357
WORKSHOP 4D
SETTING UP AND MANAGING COMPLIANCE
ASSISTANCE PROGRAMS AND INFORMATION
OUTREACH ON REGULATORY REQUIREMENTS
Technical assistance and outreach programs are significant ways governments have to offer
encouragement for compliance. Many nations and local communities have established
programs offering technical assistance to business and industry in environmental control,
pollution prevention and/or cleaner production. Few of these are actually focused on
assistance related specifically to regulatory compliance for reasons which include lack of
institutional linkage, lack of enforcement motivation, a desire to avoid shifting the burden of
responsibility for compliance from those regulated to the government and/or the level of training
required to actually offer compliance assistance. In other cases a range of means of trying
to communicate about regulatory requirements have been tried with mixed results.
4. Summary of Workshop Discussion, Facilitators: M. Gonzales, E. Stanley;
Rapporteur: D. Paige 359
Papers 1 - 3 for Workshop 4D and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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WORKSHOP SUMMARY: 4D Setting Up & Managing Compliance Assistance Programs 359
SUMMARY OF WORKSHOP: SETTING UP AND MANAGING
COMPLIANCE ASSISTANCE PROGRAMS AND INFORMATION
OUTREACH ON REGULATORY REQUIREMENTS
Facilitators: Elaine Stanley, Marco Gonzales
Rapporteur: Dean Paige
GOALS
Discussions were designed to address the following issues:
What methods are used to communicate and reach out to the regulated
community about environmental requirements.
Which have proven to be most effective, have not worked well and why.
What programs have been developed to offer compliance assistance, what
circumstances initiated the program.
What are the resources required to implement the program and how are
successes or results addressed.
How are programs for assistance and/or outreach linked to enforcement
practices, what policy or program design alternatives were considered and why
was the approach selected.
1 INTRODUCTION
Around the world national, state and local environmental authorities are striving to
balance the responsibility for aggressive environmental enforcement with the equally
imperative need to provide assistance to the business community in the areas of knowledge
of the requirements of environmental law, and resources available to business to aid in
establishing and maintaining compliance. Many small and medium sized business operators
have limited knowledge of the requirements of the environmental regulations that apply to
their businesses. A lack of available resource material, technical expertise and even literacy
problems are only a few of the obstacles that confront small business owners worldwide.
Many types of small businesses, including job shop plating operations, vehicle repair shops,
anci small textile manufacturers use hazardous materials and/or produce hazardous waste
and can therefore pose great risks to local environments. The environmental inspector has,
as a primary responsibility, the determination of the ongoing compliance status of the
businesses under the environmental agency's jurisdiction. It is also the inspector's
responsibility to take appropriate enforcement action when environmental requirements are
not met. Attempts to integrate compliance assistance activities into the enforcement role
that must be played by the environmental inspector has led to debate as to whether the
inspector can be both an effective enforcer and at the same time provide assistance to a
business in meeting the requirements of the law. The type of assistance which can be provided
has also been the subject of discussion. Certainly, an inspector must be expected to provide
a business with a clear understanding of the requirements of the law and a knowledge of
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which agency's and which agency personnel are assigned to monitor that business. The
provision of technical advice on subjects such as waste treatment technologies or choice
of treatment systems however take the inspector into uncharted waters.
2 PAPERS
A paper prepared by Ellepola Ramani describes the government of Sri Lanka's recent
implementation of national Industrial Pollution Control Programs. A paper by Dean Paige
and John Garn describes the implementation of the Sonoma Green Business compliance
incentive program and concurrent environmental enforcement and prosecution in Sonoma
County California USA. A paper by Lynn Vendinello describes the development of national
virtual Compliance Assistance Centers on the World Wide Web by the US Environmental
Protection Agency
3 DISCUSSION SUMMARY
3.1 A Global Snapshot of the State of Compliance Assistance
Participants described their individual experiences and the overall status
environmental compliance and assistance efforts in their respective countries. A broad range
of situations were described. Ms. Marlen Dooley of New Jersey USA discussed an
aggressive enforcement program in her state and indicated that recently state agencies have
been exploring the possibility of adding an assistance component to their efforts. Various
options were being considered. A Green Start Program was in development in an attempt
to encourage businesses to ask for assistance when they need it. Dean Paige discussed
the Sonoma Green Business compliance incentive program, which has been successfully
integrated into local compliance enforcement regimes. Ms Vera Mischenko of Russia and
Ms. Namsrai Sarantuya of Mongolia detailed conditions in their newly independent countries
in which the National Environmental Compliance Ministries had collapsed along with the
collapse of the USSR and were only now being rebuilt. Ministry territoriality, graft and bribery
and the influx of powerful multinational corporations had left few options for effective
environmental enforcement. She described how NGO's and volunteer lawyers had taken up
the cause and were at present the first line of defense against the environmental criminal.
With no effective enforcement apparatus there is no disincentive to environmental crime and
very little demand from industry for compliance assistance. Dr. Marco Gonzales described
similar conditions in 7 Central American Countries with very new environmental laws, a high
rate of illiteracy and a huge influx of multinational corporations. Mrs. Kasemsri Homchean
of Thailand described a situation in which only informal assistance is provided and the
assistance aspect is not institutionalized. Ministries make use of out of country assistance
when possible and will provide seminars on environmental requirements for businesses
wishing to do business in the country.
3.2 Breaking Institutional Barriers
Participants were unanimous in their insistence that institutional barriers must be
broken in order to maintain effective compliance assistance efforts. The territorial imperative
that is a given circumstance in the Ministries of many Central American countries and other
developing nations, and that is not unknown in the developed nations, is a large impediment
to the efforts to administer both effective compliance incentive programs. Ministry heads
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WORKSHOP SUMMARY: 4D Setting Up & Managing Compliance Assistance Programs 361
that consider themselves dictators or tsars impede the flow of information between and
among ministries and between the ministries and the business community. Such situations
also impair the ability to allocate scarce resources among agencies in a manner that leads
to efficient enforcement and compliance efforts and maximization of each ministry's own
resources. The reform of these ministries is essential. Experience such as that presented
on Sonoma County show that when agency's or ministries work together, all benefit. In
addition the business sector benefits by the efficient operation of the regulatory agencies.
Those that do well are recognized while those who continue to flaunt the law are punished
in a swift and serious manner.
3.3 Breaking Functional Barriers
Traditionally inspection and enforcement personnel performed those duties to
determine compliance and initiate enforcement activities and no more. The worldwide
proliferation of ever more numerous and evermore complicated environmental legislation has
left the business community staggering under the burden of identifying, understanding and
meeting environmental requirements. A new paradigm must be developed to deal with these
circumstances. Some environmental agencies have been able to successfully integrate
compliance assistance with compliance enforcement. Typically this has been accomplished
by close cooperation between environmental agencies and the regulated community and
between environmental agencies and, law enforcement and prosecutors. Enforcement
personnel must make it very clear that while they may be able to provide assistance they
will not flinch in taking civil action as required to insure compliance when deliberate and/or
ongoing violations occur. Further, the business community must be made to understand
that it will be provided with a level playing field. Those who make the effort to maintain
compliance must be assured that the competing environmental outlaw will be prosecuted
not only civilly but criminally as well. In some cases when a particular agency has exhausted
its recourses in dealing with an errant business it may be useful to join forces with other
agencies including police and prosecutors in joint investigations and prosecutions. In this
situation an environmental enforcer may maintain his/her persona as an investigator only while
the police and prosecutors accept the role of enforcer.
Resource issues were also related to functional barriers. In some countries local
police agencies are being pressed into service and being trained to carry out basic inspection
activities. They in turn make referrals based on their inspections to environmental ministries,
which then conduct the scientific investigations necessary in cases where environmental
crime is suspected. The need for cross training in all aspects of environmental enforcement
was also highlighted. A basic understanding of multi media issues by an agency involved
with enforcement of only specific media requirements is a beginning. Under such a condition
appropriate referrals can be made when necessary thus maximizing resource utilization.
Development of multi media knowledge and skills leading to single multi media environmental
inspections was also put forth as a desirable goal.
3.4 Communication Methods and Challenges
Participants agreed that the target audience for Assistance information should
include not only businesses but also the public and NGO's. It was pointed out that we also
must remember that the business community is part of the public not a separate entity unto
itself. Therefore, in order to fully serve the public we must also meet the need of the business
community for clear unambiguous information about environmental requirements. It was
agreed that in order to provide effective assistance an inspector must be fully aware of the
raw materials, operations, waste treatment requirements and the wastes generated by a
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business. Services provided must include what information is available, where to find it and
who to call for clarifications, explanations and details. Information should be tailored to
consider the needs of the regulated community. Wherever possible materials should be
specific to industry sectors.
A wide variety of communication strategies were discussed. Dr. Marco Gonzales
pointed out that in Central America a high rate of illiteracy made it necessary to tailor
information to the average small businessperson with a limited education and that many
assistance materials must thus be presented in a comic book form. Dr. Gonzales also
pointed out that he finds it useful to sometimes use outside sources to present seminars
and recommended that trade organizations are many times a great source of information.
Ms. Elaine Stanley noted that using comic books and similar easy to read materials is often
also used in the United States as the visual component of assistance materials had been
found to be very important and effective in some small industry sectors. She also described
the establishment of Virtual Internet Compliance Assistance Centers by the US EPA. Dean
Paige described the components the Sonoma Green Business Program and presented an
informational brochure for businesses that briefly describes federal state and local regulations
applicable to a number of business types and indicates which local agencies administer the
regulations and how to contact those agencies as well as a listing of acronyms that are well
known to environmental regulators but beyond the knowledge of most businesses. Another
booklet set out a checklist that a vehicle repair operator could use to determine whether the
operation was in compliance with regulation and which described Best Management
Practices for such a business.
Some challenges to effective communication raised in the discussions were; tailoring
the materials to the sophistication level of the target audience, how local authorities can reach
multinational corporations doing businesses in developing nations and how various ministries
can evolve from a "Territorial" attitudes about the agencies to an open communication with
other ministries and facilitate improved enforcement cooperation.
4 CONCLUSION
The integration of compliance assistance programs into environmental enforcement
strategies is an emerging trend around the world. The differing levels of development of
environmental law, the apparatus to enforce environmental regulations and the sophistication
of the regulated community all have a bearing on the methods which willbe employed to meet
both the needs of the regulated and regulatory communities. Whatworks in the industrialized
countries will not necessarily be successful in countries with developing economies.
Worldwide experience in this area is still limited. Questions remain as to resource allocation,
the separation of compliance and assistance activities, the role of law enforcement and
prosecutors and capacity development. Participants left this workshop with a better
understanding of ongoing current efforts and the need for further sharing of information.
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WORKSHOP 4E: THE SCIENCE IN ENFORCEMENT 363
WORKSHOP 4E
THE SCIENCE IN ENFORCEMENT: SETTING UP AND
FINANCING LABORATORIES; ENSURING THE
INTEGRITY OF SAMPLING AND DATA ANALYSIS;
SCIENTIFIC SUPPORT FOR ENFORCEMENT
Successful enforcement rests on sound science for its credibility and successful resolution
of violations and resultant damage to the environment. This workshop was directed toward
developing a firm basis for understanding the science of enforcement, that is, the need for
scientific support and data management.
1. Summary of Workshop Discussion, Facilitators: N. Marvel, J. Rothman;
Rapporteur: M. Renders 365
A list of related papers for Workshop 4E from other International Workshops and
Conference Proceedings is in Volume 1
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WORKSHOP SUMMARY: 4E THE SCIENCE OF ENFORCEMENT 365
SUMMARY OF WORKSHOP: THE SCIENCE OF ENFORCEMENT:
SETTING UP AND FINANCING LABORATORESjENSURING THE
INTEGRITY OF SAMPLING AND DATA ANALYSIS; SCIENTIFIC
SUPPORT FOR ENFORCEMENT
Facilitators: Nancy Marvel, John Rothman
Rapporteur: Michael Fenders
GOALS
Discussions were designed to address the following issues:
• Identification of scientific issues and support required for compliance
monitoring and enforcement response.
Defining the needs for laboratory support.
Laboratory certification and auditing programs to assure quality of data and
analysis.
Need for and how programs acquire supplemental scientific support for
environmental assessments associated with enforcement cases.
Distinguishing needs for forensics laboratory support for criminal cases and
laboratory support for civil enforcement cases.
Creative means of financing and managing needs for laboratory support:
opportunities for regional cooperation, mobile laboratories, purchasing support
from multi-purpose laboratories or third parties.
1 INTRODUCTION
All nations and organizations recognized the need for sound scientific and laboratory
support to measure ambient environmental conditions, develop meaningful standards,
analyze impacts to water, land and air, monitor compliance with environmental requirements
and to enable successful prosecution of environmental law under the legal standards that
apply for admission of evidence. The discussion centered on exchanging information on
existing laboratory capacity, good practices for sampling and analysis to be admissible as
evidence, and developing regional approaches to share capacity where it is lacking.
2 PAPERS
See related papers from other International Workshop and Conference Proceedings:
Pesticide Export and Import Enforcement Programs in the United States,
Hofmann, A. and Musgrove, C., Volume 1, Utrecht, The Netherlands, 1990,
pages 237-245.
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U.S. Experience and Differences between Civil and Criminal Investigations and
Use of Central Elite Force to Supplement Local Inspectors, Gipe, D. and Wills,
C., Volume 1, Budapest, Hungary, 1992, pages 445-452.
Synopsis of UNEP Manual on Institution Building, Volume 1, Chiang Mai,
Thailand, pages 275-279.
3 DISCUSSION SUMMARY
3.1 Identification of Scientific Issues and Support Required for Compliance
Monitoring and Enforcement Response
Participants immediately agreed on the need for sound scientific and laboratory work
(and resources) to support environmental enforcement and compliance efforts. Indeed, there
was preliminary discussion of the necessity of good science to develop environmental
standards, evaluate ambient conditions, and formulate environmental requirements which
address pollution problems of greatest risk in the first place. The workshop quickly focused
on how to achieve the requisite laboratory capacity to support the enforcement of
environmental laws in regions where it was lacking.
As a first step, many participants urged the identification and publication of existing
facilities, whether they are run by government agencies, universities, health organizations,
NGOs, or the private sector. It was recommended that INECE consider setting up a task
force or regional subgroup to explore these issues and to facilitate electronic exchange. A
representative from the Environmental Law Alliance Worldwide agreed to set up an E-mail
network to facilitate information exchange on science in enforcement among all the
participants of the workshop, INECE affiliates and anyone else with information relevant to
laboratory support issues. At the next morning's plenary, the representative reported that
the electronic network was up and running with the E-mail addresses of everyone at the
workshop as well as others identified for this purpose.
3.2 The Regional Approach versus Single Country: A Case Study, Limitations and
Hybrid Approaches
3.2.1 Regional Approach
Among the approaches discussed for maximizing laboratory capacity, various
regional approaches were considered. Mr. Vincent Sweeney from the Caribbean
Environmental Health Institute in St. Lucia, made a compelling case for a regional network
of laboratories in areas like the Caribbean, where any single island may lack the resources
to develop adequate capacity, but collectively the region as a whole can sustain facilities
such as the Caribbean Environmental Health Institute. Because the island nations in the
region have a long history of trade, travel and capacity sharing in other areas, they are well
suited to regional approaches in addressing common problems.
Again, it is essential for a network to be meaningfully established to assure that all
islands' governments are aware of the collective regional capacity and the fact that
laboratories set up for other purposes may be used as well for environmental enforcement
and compliance monitoring. It was recommended that any INECE network set up in the
Caribbean incorporate laboratory issues as a first priority, though it was noted that so far the
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WORKSHOP SUMMARY: 4E THE SCIENCE OF ENFORCEMENT 367
CARIB-INECE was not yet operational. Enhancing the Caribbean regional approach has
become more important of late, with the role of laboratories increasing for environmental
protection purposes. It has also become important to cross reference quality assurance and
quality control procedures, calibration standards, and address Caribbean-wide certification
issues. Thus, to the extent the islands' standards and procedures can be harmonized, it
will assist in maximizing the efficient use of laboratory resources and therefore enhance
regional environmental enforcement capacity.
While the regional approach is well suited to the geography, culture and currents
of the Caribbean, it's limitations became apparent with the observations of some African and
other nations, where the scale of the countries and geography make international capacity
sharing impractical. In such countries, laboratory capacity must be developed nationally,
often with limited resources. The question then becomes how to assure adequate capacity
within one nation's borders and what are the resources and regional mechanisms available
to facilitate that.
3.2.2 National Approaches
For example, in Botswana, two laboratories were set up within the Department of
Mines in the 1970s to monitor for air pollution control. Botswana is currently trying to upgrade
these laboratories to analyze more pollutants, but the cost exceeds four million dollars.
Thanks to Norwegian cooperation, Botswana is moving ahead with the training of inspectors
in Norway and has become part of the Air Pollution Monitoring Network and is developing
better methods to use laboratory results in court for enforcement cases.
Brazil, a larger country, presents a hybrid of a national system with a regional
structure. Brazil has three central and six regional laboratories run by the states, all of which
are certified to national standards. Malawi, on the other hand, has no national laboratory
and relies on a university laboratory. Other countries rely upon private sector laboratories
or combinations of public and private laboratories. Whatever the type of laboratory
arrangements used, all agreed upon the need to take steps to manage the analysis according
to national or international standards, and assure the integrity of the data.
3.3 Assuring the Quality of Data and Analysis
Several nations' experience demonstrated the necessity of assuring the integrity
of environmental protection regimes which require self-monitoring and reporting by regulated
entities. Inherent in this system of environmental protection is the integrity of the sampling
and analysis required by the statutes and ensuring against falsified or misleading laboratory
analysis. Several countries posited the importance of establishing criminal liability for
individuals, laboratories and regulated entities that falsify or misrepresent laboratory analysis.
It was noted that several of the biggest criminal investigations in the United States involved
laboratories which falsified data for corporate clients. Brazil and other countries had similar
experiences.
Most countries had deployed or were developing national standards and certification
processes for laboratories. Some required certification under international standards such
as ISO 25, World Bank requirements, and other standards as well. Auditing of the
laboratories was required for some certification processes and in order to receive government
contracts.
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3.4 Distinguishing Needs for Laboratory Support
While there was broad recognition of the need for specific types of sampling and
analysis that would stand up in court for either civil or criminal enforcement, the immediate
concern for most nations was to establish the infrastructure for doing what was feasible in
a standard laboratory rather than setting forth immediate standards for what might stand up
in court. There was acknowledgment that chain of custody issues and the integrity of
sampling and analysis were critical for most enforcement purposes, but particularly for
criminal enforcement.
In that regard, it was noted that inspectors, laboratories and prosecutors must be
aware of the legal issues that relate to sampling and the use of analysis as evidence. All
encouraged additional training in this area and highlighted the need for government enforcers
to become more aware of the science upon which their cases are predicated. It was hoped
that such awareness could help build support for the necessary laboratory resources.
In terms of priority, it was agreed that the "biggest bang for the buck" could be had
by laboratory focus on basic compliance monitoring. If subsequently there was evidence
of serious violations, it was hoped that additional resources might then be brought to bear
to establish the violations under whatever legal standards prevailed. The most immediate
concern, however, was identifying violations that posed the greatest risk, whatever the
appropriate sanction turned out to be.
As more cases came to court, it could then be anticipated what the legal challenges
to sampling and analysis were in a given country, and if necessary the laboratory would then
develop the process required by courts. It was noted that in most countries, the science
develops first and then the courts decide what is admissible in the case sub judice. In many
of the countries represented, there had not been many cases where the sampling had been
successfully challenged and so the priority of most was establish basic laboratory capacity
first, before focusing on the potential legal standards.
3.5 Creative Means of Financing and Managing Needs for Laboratory Support
Possible methods of financing the necessary laboratory support to assure
compliance with environmental laws include:
Using portions of fines for violating companies for a dedicated laboratory fund.
Assessing taxes on regulated industries to provide for laboratory analysis,
compliance monitoring and enforcement capacity generally. •
Self-financing for regulated industries and international grants and cooperative
arrangements, including with the private sector and NGOs.
The World Bank representative noted that the Bank is embarking on its second and
third generation of environmental projects and observed that compliance monitoring regimes
and the creation of laboratories are difficult to build and maintain. All participants urged full
consideration of all options to provide for laboratory support on a local, national, regional,
and international basis. They reiterated that adequate laboratory capacity is essential to
assure environmental compliance. It was agreed that INECE would provide a valuable service
by further identifying and publishing scientific resources and facilitating international and
regional access to laboratories for enforcement purposes.
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WORKSHOP SUMMARY: 4E THE SCIENCE OF ENFORCEMENT 369
4 CONCLUSION
All participants recognized the need for sound scientific support for environmental
enforcement. In particular, they acknowledged the importance of inspectors, investigators,
laboratories and prosecutors collecting, handling, and analyzing samples in a manner which
maximizes their utility in assessing compliance and assuring probative value and
admissibility in a court of law. For most countries, the question comes down to: How do
we get there from here?
The workshop identified existing electronic networks which provide access to
laboratory and information resources, including those set up by NGOs and other international
organizations. The participants explored financing options for enhancing scientific and
laboratory support and agreed to set up an Internet network among the participants, INECE,
and others, with E-Law (the Environmental Law Alliance Worldwide), on Science in
Enforcement, which was on line by the end of the conference in Monterey. They also
recommended that INECE set up a subgroup on laboratory capacity issues generally which
could provide a resource for regions and nations which need assistance in this area.
Methods for international networking, regional resource sharing, training, building
national capacity, financing laboratory work and ensuring data integrity were examined at
some length. It was agreed that "Science in Enforcement" was one area where INECE could
facilitate useful exchanges on laboratory techniques and available support, particularly on
a regional basis.
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WORKSHOPS 4F-4J: TAILORED STRATEGIES FOR ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT 371
WORKSHOPS 4F-4J
TAILORED STRATEGIES FOR ENVIRONMENTAL
COMPLIANCE AND ENFORCEMENT
4F Government/Municipal/Military Compliance and
Enforcement Strategies
4G Small and Medium Enterprises Compliance and
Enforcement Strategies
4H/4I Mobile Source Compliance Strategies and Enforcement/
Non-Point Source Compliance and Enforcement Strategies
4J Geographic or Resource-based Compliance and
Enforcement Strategies
Although the principles and frameworks for developing environmental compliance and
enforcement programs and strategies apply to all types of sources and situations, to be most
effective they must still be tailored to the nature of the regulated community, laws and customs
of a particular situation. Conference planners defined capacity building broadly to include
this set of workshops for participants to be able to focus their discussions on different
strategies for addressing several unique categories of pollution sources. For example:
Military installations often pose problems of restricted access for environmental
inspectors or may not be subject to the same levels of scrutiny or the same
types of sanctions despite the fact that they can be significant violators of
environmental requirements with substantial risk to public health and the
environment. Government owned or operated facilities nave different cost and
financial motivations because they are nonprotein entities than do private
enterprises which affects the choice and effectiveness of sanctions.
Small and medium sized enterprises are often too numerous to inspect, lack
the resources for pollution control and/or dedicated management staff for
environmental management that may be found in larger enterprises.
Because mobile sources are by definition mobile, monitoring compliance and
responding to violations of required controls on automobiles, trucks, trains,
airplanes, ships and the like, pose opportunities for unique solutions for how
and when to inspect, monitor compliance and even how to know who is in the
inventory of controlled sources. Many nations are first establishing inspection
and maintenance (I/M) programs for automobiles and this is an opportunity to
speak about enforcing those program requirements.
Non-point sources of pollution are often controlled by best management
practice requirements and do not always demonstrate the kind of problem for
which there is environmental concern such as those that occur only after heavy
rains and droughts.
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• Geographic or resource based strategies such as those needed to prevent
illegal logging or settlements on national forests or reserves or poaching of
wildlife pose still other types of challenges given the size and terrain of many
such locations and inability to establish well defined borders for such controls.
Other requirements for ecosystem protection also lack well defined boundaries
to clearly demarcate where requirements must be adhered to, etc.
4. Summary of Workshop Discussion (Government/Municipal/Military),
Facilitators: P. van Erkelens, C. Hooks; Rapporteur: C. Boekel 373
5. Summary of Workshop Discussion (Small and Medium Enterprises),
Facilitators: C. Lamers, C. Musgrove; Rapporteur: L Spahr 377
6. Summary of Workshop Discussion (Non-Point Sources of Water Pollution),
Facilitators: J. Buntsma, S. Casey-Lefkowitz; Rapporteur: S. Casey-Lefkowitz.. 383
7. Summary of Workshop Discussion (Geographic or Resource Based),
Facilitators: N. Bircher, G. Ginsberg; Rapporteurs: M. Alushin, N. Bircher 387
8. Environmental Rehabilitation of Sumgait, UNDP Project, Islamzade, Arifl 391
9. Forest Policy in El Salvador, Canas, Carlos and Carballo Broen, Alma 397
10. Cooperation between Levy-lnspectorsand Enforcement Inspectors: A More
Effective Way of Enforcement, Steinmetz, AlexH. Z. 401
11. See also South Africa: Case Study on Citizen Participation in Setting and
Monitoring Environmental Standards. (Capricorn Park/A Science Park in Cape
Town), Andrews, Angela 155
Papers 1 - 3 for Workshops 4F-J and a list of related papers from other International
Workshop and Conference Proceedings are in Volume 1
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WORKSHOP SUMMARY 4F TAILORED STRATEGIES 373
SUMMARY OF WORKSHOP: TAILORED STRATEGIES FOR
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT: GOVERNMENT/
MUNICIPAL/MILITARY COMPLIANCE AND ENFORCEMENT
STRATEGIES
Facilitators: Paul van Erkelens, Craig Hooks
Rapporteur: Kees Boekel
GOALS
Discussions were designed to address the following issues.
Particular challenges on problems posed by designing effective compliance
strategies and enforcement responses.
Institutional requirements and design requirements for the program that would
help in:
- compliance promotion;
- compliance monitoring; and
- enforcement response.
Training and inspection approaches useful to detect violations and compliance
problems.
How those challenges might be overcome.
Unique challenges of compliance by Government owned or operated facilities.
Military installation problems of restricted access for environmental inspections
and how are those problems overcome.
1 INTRODUCTION
A starting point is that the principles and frameworks for developing environmental
compliance and enforcement programs and strategies apply to all types and sources and
situations. However, to be most effective they must still be tailored to the nature of the
regulated community, laws and customs of a particular situation. This is especially the case
for several unique categories of pollution sources such as Government, Municipal and Military
installations. Government owned or operated facilities have different cost and financial
motivations because they are non-protein entities than do private enterprises which effects
the choice and effectiveness of sanctions. Military installations often pose problems of
restricted access for environmental inspections or may not be subject to the same levels
of scrutiny or the same types of sanctions despite the fact that they can be significant
violations of environmental requirements with substantial risk to public health and the
environment. Especially these categories of installations are subject of strong political
influence.
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2 PAPERS
A paper prepared by Fred Huisman describes the enforcement of military sites in
The Netherlands for which the Minister of the Environment is the competent authority.
Besides the fact that adequate enforcement is very important to keep the attention of the
military sites on environmental issues, also the implementation of more self regulation, for
example environmental care systems, have a high potential to reach higher performance on
compliance.
3 DISCUSSION SUMMARY
3.1 The compliance level of the Government
The first question in the discussion was "should the Government comply or are there
situations or circumstances that an exception on compliance is acceptable." The unanimous
answer was that as a starting point also and especially the Government at first should comply
the environmental legislation. With respect to compliance, a faithful and transparent
Government is necessary to be an example and a good teacher. Only in very exceptional
situations (as disasters) non-compliance could be acceptable.
3.2 Compliance promotion
3.2.1 Legal Authority
In some countries the legislation is not yet complete concerning the permitting and
enforcement of Government and Military installations. In some countries governments at
some or all levels cannot be prosecuted , inspectors cannot get in to investigate and/or fines
cannot be levied. So logically a first step in that cases is to construct the legal possibilities
to demand and enforce the environmental requirements for these installations. In other
countries the legal basis is present but in practice these installations are not enforced in an
adequate way because of political and financial reasons.
3.2.2 Political Will
An important condition to achieve compliance is that the political attention and will
must be motivated. Therefore the following means are presented to build political pressure:
• make the environmental problems and effects of these installations visible and
make it public;
try to use the NGO's as catalyst, and mobilize the environmental conscience
in the public opinion; and
choose and use specific cases of non-compliance and violations of the
regulations and prosecute at the court; this gives publicity and a broader effect
in awareness of the problems.
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WORKSHOP SUMMARY: 4F TAILORED STRATEGIES 375
3.2.3 Capacity to Comply
Also for the Government and Military installations the capacity building is a relevant
factor:
education and training at Governmental installations by environmental
agencies (training programs) and convince them that bad compliance will
influence their (economic) situation negatively on the long term;
finance and manpower has to be made available by the responsible competent
authorities to enforce the requirements and improve compliance; and
make a program for permitting and enforcing of the Government and Military
installations.
3.2.4 Recognize Responsibility to Comply and Adopt Environmental Management
Systems is same as Private Sector
In fact a Governmental installation (including Military) in its approach on compliance
and enforcement should not differ from private owned facilities. So also for these installations
Environmental Management Systems could be brought in. Especially for military bodies this
system is expected to have high potential because of the organization and discipline in this
sector.
3.3 Prosecution and Sanction
Countries discussed experiences in prosecuting government and military
operations. Reported were experiences that even if there is authority to prosecute and
violators are brought to court there were a high number of cases at court with a low rate of
prosecution in the absence of a concerted effort to obtain strong public and politics support
and an educated judiciary.
4 CONCLUSION
In general it was unanimous that especially Government/Municipal and Military
installations should comply at first the environmental legislation as an example for the private
sector.
To promote compliance the logical first step, if not yet regulated, is to construct the
legal possibilities to demand for and enforce the environmental requirements for these
installations.
To fulfill the condition of political will and motivation to achieve compliance, political
pressure can be built up by using NGO's as a catalyst to mobilize an environmental
conscience. The environmental problems and effects of these installations have to be made
visible and public and/or could be brought at the court for prosecution to attract attention and
publicity.
Capacity building remains an important factor in this sector including the need for
education and training of the responsible people at the installations and programming of the
permitting and enforcement by the competent authorities. Also in this sector, adoption of
environmental care systems by government installations can be a help to promote
compliance.
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The main conclusion is that Government installations (including the military) in fact
should not differ in their approach to compliance and enforcement from privately owned
installations.
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WORKSHOP SUMMARY: 4G SMALLAND MEDIUM ENTERPRISES STRATEGIES 377
SUMMARY OF WORKSHOP: SMALL AND MEDIUM ENTERPRISES
COMPLIANCE AND ENFORCEMENT STRATEGIES
Facilitators: Connie Musrove, Cor Lamers
Rapporteur: Linda Spahr
GOALS
Discussions were designed to address the following issues:
Particular challenges or problems posed by designing effective compliance
strategies and enforcement responses.
Institutional requirements and design requirements to help in compliance
promotion, compliance monitoring, and enforcement.
Training or inspection approaches useful in trying to detect violations or
compliance problems.
How those challenges might be overcome.
1 INTRODUCTION
Participants in the workshop shared experiences from their own countries and
learned from the experiences of others. In one case, the information gained was specifically
intended for use in a planned regional network program in a particular region. In another, there
had been an increase in new and small enterprises. One country which had been previously
promoting small and medium sized enterprises without concern for environmental issues,
was now interested in addressing those issues. In some countries most of the environmental
enforcement problems are related to small and medium enterprises. It was recognized that
enforcement in this area included special problems such as social issues. One issue set
forth for discussion at the outset proved to be related to a central "theme" of government
enforcement response which developed during the discussion: What is the relationship
between the physical location of similar enterprises (geographical clustering vs. scattered
locations) and the effectiveness of environmental compliance and enforcement in small and
medium enterprises?
2 PAPERS
Several papers were published in the Proceedings relating to the topic of
enforcement and compliance strategies. They included:
Law Enforcement on Military Sites in the Netherlands, F. Huisman
• Waste Reuse: Legislation and Enforcement in China, X.J. Wang
• The Overview of Water Pollution Control in the Huaihe River Basin, Q. Shi
• Achieving Ecosystem Protection Through Environmental Compliance and
Enforcement, N. Bircher
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378 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Enforcement and Encouragement: An Investigation in the Brick and Roofingtile
Industry, J.M.J. Schoenmakers
3 WORKSHOP DISCUSSION
3.1 Problems in Enforcement
The group identified several unique challenges to enforcement and compliance in
small and medium sized enterprises:
The large numbers of enterprises.
The low level of technical competence.
Small "loads" of waste as related to high exposures and/or high toxicity of
waste.
The need for increased awareness and training of the enterprises about:
- Regulations.
- Problems with the environment.
- How to comply with regulations.
The production process is often very basic.
There is sometimes "mouse and cat" play with regulators. For instance,
inspectors may not be able to get access to a small business because "the
boss is not here," and have no means of going in with police authority absent
some evidence of an actual violation.
There may be no physical space for improvement at small industrial sites.
Lack of communication and sharing among competitors in the industry.
Businesses are too small to take advantage of "economies of scale" to make
improvements affordable.
Small enterprises are sometimes "vulnerable" to inspectors, since they have
no political clout and may be treated less fairly than large enterprises.
3.2 Possible Solutions to Those Problems
Participants initially identified a variety of possible solutions to the problems, all of
which have been attempted and were found to be successful to the problems to one degree
or another. They included:
Contact and specifically inform the enterprises of requirements, in addition to
just inspecting.
Exercise flexibility.
Utilize special permit requirements geared to the small businesses.
Prepare simple industry "fact sheets," for both businesses and the inspectors.
Work with "associations" and their members to help achieve compliance in a
particular type of industry.
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WORKSHOP SUMMARY: 4G SMALL AND MEDIUM ENTERPRISES STRATEGIES 379
3.3 Working with Associations
The idea of government working with associations to foster compliance had been
explored by a number of countries, with notable success. The term was used to mean
industry associations, or cooperatives. While only one country overtly encouraged the
formation of associations, another did so by offering "softer" treatment to members of
associations which had entered into agreements which foster environmental compliance,
so long as they are making movement toward compliance. Several reasons for favoring
associations were identified in the discussion.
• Associations can help small companies learn from bigger companies.
They can work together with government to solve problems.
They may provide an opportunity for joining together to share expenses for
environmental improvements, such as waste treatment. This advantage of
"economies of scale" may be more easily applied where the companies are
located in geographical "clusters."
They may be extremely helpful in developing simple technologies.
In some countries (perhaps highly industrialized countries), industry
associations take a leadership role in promoting compliance due to their
concern for the " reputation" of the industry. In those countries, they may
actively assist small companies and publicly support enforcement actions
against violators to protect the industry reputation.
Participants identified a need to talk to small companies about their problems of
access to technology. It was suggested that local authorities should be involved in the
process, since the local government will be interested in helping companies in order to keep
jobs, and also concerned about compliance because of the local environmental affect.
One specific example was shared which utilized working with associations to solve
the problem of access to technology. The issue was the efficient use of energy in the brick
kiln industry. The government surveyed the kilns to see what steps had been taken to better
utilize energy. The information about improvements tin technology was brought back and
shared with members of the association. While the marketplace was preparing to supply
the new technology, arrangements were being made to make money available - through
loans - so that the kilns would be able to afford necessary improvements. By utilizing
associations to help develop simple improvements and also making money available to put
those improvements in place, the government was able to take the final step of the "stick"
of enforcement for kilns which were not in compliance after the deadline was imposed.
In another example, a country successfully addressed effluent damage to fisheries
through a plan which included an agreement with the association of industry responsible for
the damage, and the release of information, through the media, to the public.
3.4 Other Means of Encouraging Compliance
Incentives for the development of better technology for small businesses were also
discussed, including:
Interest free loans.
• Technology development grants.
Possibility of export of the new technologies after development. Some
reluctance was noted about providing too much technology support, noting that
there was still a need to "level the playing field" and that "the polluter must pay,"
even among small enterprises.
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A wide variety of other approaches were identified which have achieved varying
degrees of success under different circumstances:
When companies were given the right to sue for "unfair competition" in
international trade, one participant observed that competitors, companies doing
business with each other, and the market itself actually "forced" companies
to comply with environmental laws. This compliance even trickled down to
small suppliers. For example, associations or cooperatives have built
treatment plants to be used by members, in order to continue doing business.
It was noted that without an export market, this won't work. It was also noted
that "internal" business dynamics and political/social issues may make this
an ineffective means of encouraging compliance.
Encouraging "clustering" of businesses and other suggestions for reducing
costs by utilizing the "economies of scale" to achieve compliance.
• Provide tax breaks for land and machinery.
Use the community as a resource to encourage small businesses to comply.
For this to work, a system of response must be in place to respond to
complaints.
Include in Environmental Management Systems of large businesses the
requirement that their suppliers be in compliance.
In one country, a law was passed establishing individual "vicarious liability" on
the operator for acts committed by employees. Though this was described
as possibly "Draconian," it was developed due to public pressure and political
will because of very serious problems created by a particular industry.
In some countries, there is individual liability for employees who commit
particular acts.
It was noted that big operations sometimes remove "problematic" activities
from their businesses and give those parts of their production process up to
the competitive market place. Metal refinishing, for instance, is a simple
process with major disposal problems. Because of expense, small companies
may be particularly unsuited to handling the problems. Possible solutions
include forcing the bigger companies to take responsibility, allowing the
competitive market pressures to do so, and extending liability to companies
for the acts of their suppliers.
3.5 Enforcement Responses and Policies
The participants identified some important issues for successful enforcement for
small and medium sized enterprises.
Establishing a legal basis for small and medium enterprises.
A need to measure environmental problems and developing the legal basis.
Establishing a means or system for enforcement.
Be more flexible with regard to the size, nature and pollution risk of companies.
Focus first on major problems, concentrate on movement toward compliance
and establish a "culture of compliance."
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WORKSHOP SUMMARY: 4G SMALL AND MEDIUM ENTERPRISES STRATEGIES 38T
Be aware of the cost of compliance for small and medium businesses.
Be aware of the difficulties they face.
Try to simplify requirements. The complex requirements imposed on large
businesses may not be necessary for a particular size or type of business.
Train enforcement personnel to do the best job possible under the laws of the
jurisdiction, to minimize the "mouse and cat" game.
• Train management of enterprises.
Try to develop ways to influence "the culture."
4 CONCLUSION
It was generally agreed that the problem of compliance and enforcement for small
and medium businesses is not simply an environmental problem. It is a political and
economic problem as well. Because the problem of compliance is an "integrated one," the
solution must be integrated as well. It must involve environmental, political, cultural,
economic, social, governmental, societal, private sector and NGO input.
There is no way to reduce the number of such businesses, and in fact the numbers
are growing in most countries. Enforcement solutions seemed to focus on responding through
organizations of several varieties:
Encouraging "clustering" to provide for shared treatment systems.
• Utilizing associations to communicate with, influence and provide
improvements or assistance.
• Utilizing social systems to influence behavior.
Using "economies of scale" to make improvements and development
affordable.
• Developing laws to get companies to enforce against other businesses.
In the end, it appeared to the participants that the most viable approaches appeared
to involve some means of avoiding dealing with large numbers of enterprises on an individual
basis to achieve compliance. This "theme" developed from the very rich experiences of the
participants, many of whom had been using thoughtful and creative means to make the best
use of limited governmental resources in the environmental enforcement field.
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WORKSHOP SUMMARY: 41 NON-POINT SOURCE COMPLIANCE 383
SUMMARY OF WORKSHOP: NON-POINT SOURCES OF WATER
POLLUTION COMPLIANCE
Facilitators: Joost Buntsma, Susan Casey-Lefkowitz
Rapporteur: Susan Casey-Lefkowitz
GOALS
Discussions were designed to address the following issues:
Main areas of concern for non point source regulation and enforcement.
• The extent of country experiences with non-point source compliance strategies.
How to get started in building an enforceable system for non-point source
pollution control.
Enforceable mechanism for non-point source pollution control.
1 INTRODUCTION
Non-point source pollution or pollution from diffuse sources generally consists of
polluted runoff from farms, forests, land development and other activities. Often these sources
for water pollution are not regulated under the water discharge permitting system of a country
due to their diffuse nature. Regulation of pollution that runs off the land with rainfall is much
more difficult than regulation of pollution that comes from an identifiable pipe outlet. Non-point
sources of water pollution are typically difficult to identify and to monitor. Yet, there is an
increasing interest in methods for controlling non-point sources of water pollution. Few
countries are using enforceable mechanisms to control and prevent non-point source water
pollution. Instead, non-point source discharges are addressed primarily through non-
regulatory means, such as planning, incentive and cost-share mechanisms, voluntary best
management practices, and other approaches.
2 PAPERS
The Proceedings of past International Conferences on Environmental Compliance
and Enforcement include the following paper covering non-point source pollution.
Potassium and Nitrate Pollution of Surface Water in the Catchment Area of
the "Blankaert" Water Production Centre in Flanders (Belgium), Baert, Sc.
Robert, Loontiens, Roland and Devos.M. Sc. Marc, Volume II, Chiang Mai,
Thailand
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3 DISCUSSION SUMMARY
3.1 Defining Non-Point Source Pollution
Non-point sources of water pollution of primary concern to the workshop participants
were agricultural sources, including pesticide and fertilizer runoff. The workshop also
addressed problems with runoff from forestry and construction work sites.
3.2 Country Experiences with Non-Point Source Compliance
The workshop participants discussed their country experiences with non-point
source water pollution regulation and enforcement. For example, Taiwan is struggling to
regulate agricultural non-point sources. They are requiring best management practices for
fertilizer application, buffer zones and other aspects of agricultural production that contribute
to water pollution. Taiwan faces certain barriers in that its best management practices are
primarily based on voluntary compliance. It combines education with incentive programs,
such as subsidies for proper fertilizer application. The Taiwan Environmental Ministry and
the Agricultural Ministry have realized that cooperation is crucial in this area to minimize water
pollution. The challenge remains how to combine effective enforcement with a program based
on voluntary compliance, technical assistance and incentives.
India also is exploring the appropriate mixture of tools to reduce pollutant runoff from
agriculture. The challenge is especially strong in the rainy season when agriculture runoff
including cattle waste, fertilizers, and pesticides inundates local rivers. India has traditionally
depended on a voluntary program, but they are exploring the use of incentives and regulation,
along with strengthening the voluntary program for the future.
3.3 Implementation Issues for Non-Point Source Compliance
The workshop addressed how to get started in establishing a program for non-point
source water pollution control and prevention. The following elements were seen as
necessary prerequisites to any such program:
Effective monitoring of water quality.
Identification of the sources of the problem pollutants.
• Scientific research to identify best management practices for different sectors
and different geographical areas.
Coordination mechanisms between the environmental agency and other
agencies such as forestry, agriculture, and mining.
Public awareness, education, and training programs on non-point source
pollution and best management practices.
Workshop participants agreed that while education, training, and technical
assistance programs could be housed with the sectoral agencies, regulatory and enforcement
programs needed to remain with the environmental agency. The group discussed
requirements for the creation of an effective regulatory program, including:
Requirement of operating permits for potential non-point sources of water
pollution.
Set back and buffer zone requirements from watersheds.
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WORKSHOP SUMMARY: 41 NON-POINT SOURCE COMPLIANCE 385
Requirement of plans, such as nutrient management plans for agricultural
concerns or erosion and sedimentation control plans for forestry and
construction sites.
Requirement of environmental impact assessments to help set technical
mitigation tools.
3.4 Potential Tools for Non-Point Source Compliance and Enforcement
Most countries have authority to deal with non-point source discharges that can be
shown to result in water pollution in their water pollution prevention laws. However, few water
pollution control laws contain actual enforceable mechanisms for non-point source pollution.
Permitting is the most common mechanism for establishing clear standards with which a
regulated non-point source must comply. Yet, as non-point sources are typically numerous,
small enterprises, environmental agencies rarely have the resources to monitor and enforce
against illegal water discharges, even when they do have the authority.
The workshop discussed the following compliance and enforcement approaches:
Watershed or catchment approach of identifying the water quality problems
and their sources in a particular watershed and then targeting the non-point
sources as a group.
Inspections of non-point source sectors and facilities.
Government support through technical assistance for citizen monitoring
programs of non-point sources.
Penalties and closures of facilities still not in compliance after opportunity for
joining voluntary and technical assistance programs has been offered.
4 CONCLUSION
As countries have increasing success in reducing water discharges from industrial
facilities, they are realizing that a substantial portion of water pollution does not come from
these "point sources" but from runoff from diffuse or non-point sources. Regulation of these
typically numerous and small facilities has been difficult due to lack of resources, inherent
problems in monitoring runoff, and lack of reliable best management practices. Countries
are now approaching non-point source water discharge reduction and prevention through a
combination of voluntary, technical assistance and regulatory programs. Enforcement may
well prove to be the needed "stick" to encourage farmers, foresters, mining companies, and
developers to adhere to the best management practices and join the voluntary programs.
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WORKSHOP SUMMARY: 4J GEOGRAPHIC OR RESOURCE BASED STRATEGIES 387
SUMMARY OF WORKSHOP: GEOGRAPHIC OR RESOURCE BASED
COMPLIANCE AND ENFORCEMENT STRATEGIES
Facilitators: Nancy Bircher, Gail Ginsberg
Rapporteurs: Michael Alushin, Nancy Bircher
GOALS
Discussions were to address the following issues:
Where and when geographic or resource based strategies have been used,
for example:
- Prevent illegal logging or settlements on national forests or reserves.
- Prevent poaching of wildlife.
- Sensitive ecosystems (lakes, rivers, coastal resources).
Particular challenges or problems posed by designing effective compliance
strategies and enforcement responses.
• Institutional requirements and design requirements to help in:
- Compliance promotion.
- Compliance monitoring.
- Enforcement responses.
Training or inspection approaches useful in trying to detect violations or
compliance problems.
How those challenges might be overcome.
1 INTRODUCTION
Geographic or resource based compliance and enforcement regimes require an
ecosystem approach and focused strategies to deal with the special challenges of
downstream and cross-boundary impacts and protecting wilderness with limited resources.
2 PAPERS
The following papers in the proceedings relate to geographic or resource based
compliance and enforcement strategies:
Law Enforcement on Military Sites in the Netherlands, Huisman, Fred
Waste Reuse: Legislation and Enforcement in China, Wang, X.J.
The Overview of Water Pollution Control in the Huaihe River Basin, Shi, Quichi
Achieving Ecosystem Protection Through Environmental Compliance and
Enforcement, Bircher, Nancy
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388 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Enforcement and Encouragement: An I nvestigation in the Brick and Roofingtile
Industry, Schoenmakers, John M.J.
3 DISCUSSION SUMMARY
3.1 Challenges
In China, local governments generally own the factories and implement standards.
Local governments are more concerned with economic development than with the effects
of the pollution in downstream jurisdictions. Further, the local, provincial, and national
governments all tend to interpret the standards differently.
In Brazil, multinational industries exercise influence over the government to establish
polluting industries in formerly pristine areas with insufficient environmental protection
measures. Once an industry is in place, it is difficult to apply new, more stringent standards.
Once the harm has been done, it is difficult or impossible to restore the land and water quality.
Since 1990, the number of gold mining operations in Mongolia has undergone a ten
fold increase to 149 operations, having a significant impact on 300 rivers and the adjacent
lands. Rapid industrial expansion, dominated by foreign industry, has meant that government
inspectors need to learn about new technologies and have not had the time or resources to
obtain the necessary training.
All nations present experience the challenge of dealing with different standards in
different states creating "pollution havens" and an unequal playing field for established
industry.
Common training problems include, once inspectors are trained, they move to better
paid jobs in the private sector and training being applied in an "ad hoc" manner to address
single issues.
3.2 Solutions
Implementing environmental protection measures on a watershed basis involves
attention to the entire system and not only the river itself. The Czech Republic employs an
"Ecological Stability System" to ensure that all impacts and aspects of natural systems are
considered when working to restore them. Austria has amended its legislation to redefine
the meaning of the word "river" to include the riparian area as an aid to controlling impacts
and maintaining the integrity of rivers systems.
To address the issue of downstream impacts across administrative boundaries, the
Chinese central government sets national standards to which provinces must adhere. The
watershed that provides drinking water for Beijing is protected from upstream pollution by
paying compensation to upstream users so they will not have to depend on polluting industry
for their survival. The Slovak Republic has installed "Alert Stations" along the Danube to detect
hazardous materials spills. This measure facilitates timely notification of countries
downstream and implementation of coordinated response activities in compliance with
international emergency response agreements.
In Canada, the challenge of enforcing environmental law in remote areas is partially
met by welcoming tips from the general public and undertaking covert operations where
appropriate. Enforcement resources are targeted toward known offenders and successful
prosecutions are publicized as a deterrent to others.
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WORKSHOP SUMMARY: 4J GEOGRAPHICOR RESOURCE BASED STRATEGIES 389
It is important to implement a comprehensive, structured training system with basic
training and regular refreshers and updates. Case studies are very useful as training
exercises. Training capacity can be improved in developing countries by sharing of training
systems internationally, which may then be customized as needed for the region. Mongolia
is sending selected inspectors to foreign countries to learn new technologies. Those
inspectors then return to train their co-workers. Some training issues are addressed in the
Czech Republic by assigning new inspectors to those with more experience for an
"apprenticeship" period. Implementation of new legislation can be improved if government
provides training to industry operators.
To provide a buffer against ecological destruction in the face of rapid industrial
expansion, Mongolia has committed to increase protected areas from 6% to 30% of the land
base by the year 2000.
4 CONCLUSION
The nations represented at the workshop shared the need to focus compliance and
enforcement activities toward geographic areas of concern, particularly watersheds. There
was recognition that an ecological approach must be employed when protecting drinking water
sources due to the downstream impacts of upstream activities. Often, watercourses cross
international or internal administrative boundaries, requiring complex and co-operative
approaches to problem solving. Protection of resources in remote areas sometimes requires
specialized enforcement responses such as covert investigations. Implementation of a
system of protected areas can ensure that nature is protected while economic development
continues on the remainder of the land base.
Industrial globalization has resulted in the presence of multinational industries
developing nations that may not yet have the legislative or technical capacity to prevent
pollution of formerly pristine areas. International assistance in development of training
systems and also provision of direct training in the developed world can be used to overcome
these issues.
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39O FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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(SLAMZADE, ARIF I. 391
ENVIRONMENTAL REHABILITATION OF SUMGAIT, UNDP PROJECT
ISLAMZADE, ARIF I.
Environmental Rehabilitation of Sumgait, UNDP Project, Nizami 16, Sumgait 373200,
Azerbaijan
SUMMARY
This paper analyzes the "ecological pathology" which has developed in major
industrial cities, in particular, Sumgait, Azerbaijan Republic. From a historical perspective,
the intense and extensive developmentofSumga.it failed because of the intense concentration
of heavily polluting industry which did not ensure safe industrial systems and well founded
requirements for their use. Neither the appearance nor the infrastructure of Sumgait was
adequately planned and implemented to address the demands of this concentration of
development. The development character of Sumgait and its subdivisions, especially industry,
has already predetermined in many respects the ecological situation in the city and in the
region. As a result, Sumgait has been listed as one of the priority cities of the former USSR
with the most contaminated environments. Ecological rehabilitation of the Sumgait region
has been considered, in particular, by establishing a Special Ecological Area and following
through on all that follows from that designation to correct past problems and properly plan
for the future.
1 SUMGAIT - PROBLEMS AND MEANS OF ECOLOGICAL REHABILITATION
"All is connected with all"; "All must somewhere disappear"; "You get nothing for
nothing"; "Nature knows better" - so has formulated Barry Commoner, the author of the
remarkable book "Closed Circle," the main laws of ecology in the manner of four aphorisms.
Without taking into account these laws, we humans can ruin all alive and ourselves in
addition. Regrettably, in many circumstances, we do not take this potential impact into
account, but simply underestimate or, like the ostrich, having dug his head into the sand,
do not notice them. Then ecological crises arises with all their resulting consequences.
Practice shows that in many circumstances, the obstacles to solving ecological
problems often are not found in the technical or financial possibilities of solving a problem,
but in weaknesses characteristic to human nature. It is impossible to attribute this to human
egoism. Such behaviour is a result of failure to understand what is going on, is shortsighted
and insufficient thinking. We should all understand that natural resources protection is key
to future prosperity, much more reliable than any inconsistent course of policies. It not only
guarantees a country the power required to protect against any threat, but ensures prosperity
after threats are addressed.
By calling our ecological crisis a pathology, it corresponds to having been created
in ecologically adverse cities. Pathology — is a science, dealing with causes, mechanisms
and live organisms in disease situations. One can maintain that cities are subject to the
pathology process as well as industrial processes, regardless of their sizes, as a product
of a social organism. This phenomena, reflecting deviations from existing ecology-economic,
and social, law and moral standards, can be named city pathology.
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392 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
What are the reasons for this negative ecology-pathological phenomena arising in
cities? There are two somewhat contradictory reasons, which can explain the emergence
of ecological pathology. According to the first version, cities, originally having been
established in order to provide safe and suitable conditions for people functioning and living,
at the end turned out to be uncontrollable, while ecology-economic and social processes,
once upon a time having begun, continue to evolve, regardless of human being will, preventing
its normal development.
The second reason explains the causes of the ecological pathology in the nature
of society. Those governing according to "managing groups", who organize a town space
and its structure in accordance with their own interests. In this instance for maximum
increase of production and profit.
The partial contradiction between these two explanations is based only on the fact
that ecological processes are developing simultaneously, spontaneously, and systematically.
Only both versions, taken together, can explain ecological pathology.
Historically poor methods and intense development reflected on Sumgait's
appearance and its infrastructure, and great mistakes were made when designing safe
industrial systems and requirements for their use. This, in its turn, has brought about
concentrations of industry, unacceptably large amounts of extremely dangerous chemicals
and technologies, which resulted in negative impacts on the population and environment.
From the first, the industry of Sumgait, a main source of environmental pollution, developed
intensively, covering all aspects of industrial production. High rates of industrial development
over an unusually short time (1950-1965) allowed Sumgait to rank among the leading
industrial centres of the former USSR. In this period all major industrial enterprises were
commissioned, but after there were intensive increases of basic production capacities.
2 MULTIDISC1PLINARY SOLUTIONS
The multidisciplinary nature of the industrial development and accumulated
irregularities in its structured subdivisions has created a problem of one-sided development
of industry that substantially affected the ecological condition of the city. So, over a period
of 1970-1985 the industrial infrastructure including primary development of chemical and
petrochemical industries increased threefold, the assortment of products being manufactured
also increased considerably. Increases in production capacity and the amount of produced
product, has resulted in expanded use of raw material and a growing challenge of cargo
turnover, water-energy balance, and amount of industrial waste disposal in the surrounding
area.
The nature of Sumgait development and its structured subdivisions, particularly
industry, in many respects, has already predetermined the ecological situation in the city
and the region, resulting in Sumgait's placement on the list of priority cities of the former
USSR with the most polluted environment. Excessive industrialization has also brought
deformation of the population urbanization process, where an intensive transition of the labor
force from rural regions of the Republic (especially west, adjacent to a border with Armenia)
into the industrial area took place. When the main factor of economic growth is industry,
into which main capital investments within a long time are channeled, production dominates
simple and extended labor force.
Under the socialist planned economy, when in a literal sense all is planned and
financed from one Center, this means that strategies bring profit to the Center. This inevitably
leads to losses to everybody involved in this strategy. When a certain level of industrialization
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ISLAMZADE, ARIF I. 393
is exceeded, the damage, inflicted by polluting the environment, exceeds profits from
industrial production. Despite having reached huge economic successes, the extensive way
the city was industrialized has already brought by the middle of the 1970's, extensive
environmental pollution in the region:
First, the industrial complex of the city is characterized by a high degree of
concentration of industrial production, that is 6 times greater than any
corresponding factor in the Apsheron economic region. This is true for the
capital Baku as well, also, in contrast with many other industrial centers of
the former USSR.
Second, factories are characterized not only by low technical and economical
factors, but by high materials consumption, energy consumption and low share
of product, generated the effect of which became a greater amount of non-
utilized by-products and wastes.
Third, extended exploitation of physically worn-out equipment leads to
unstable work, frequent damage, and increases of uncontrolled and volley
exhausts. The absence of goal-directed work on modernization and renovation
of operating industries in "stagnant" times has brought about the fact that more
than a half of industrial complex equipment is in use more than 20 years, 7
percent more than 30 years and etc. The collapse of the former USSR founded
on the communist ideas has left an inheritance both in achievements and its
problem. The negative development of social-political processes on this
enormous territory, economic relationships' breach have brought about
•significant isolation of not only sovereign Azerbaijan, but its industrial base as
well. In particular, Sumgait became the reason for rapid decline of industrial
production, loss of traditional raw materials markets, intensification of the
economic and financial crisis, reduction of social-ecological programs, etc.
Having been established over the years as the industrial center it faced the
threshold of inconvertible destructive processes, further development of which
might have become a catastrophe on a national scale.
In these complex conditions, in the Spring of 1994 in accordance with the initiative
of the president of Azerbaijani Republic Heydar Aliyev, a global scale of work was started
to create a "Free economic area" on the territory of Sumgait on the basis of new economic
relations. One might think this bold idea, aside from solving greater social-economic
problems, has enormous political value in recovering the prestige of Sumgait in the eyes of
the world. Azerbaijan's political and economic independence and organization of "Free
economic area" on the territory of Sumgait has put in principle a new system of goals in solving
ecological problems of the city, achievement of which requires complex consideration of
economic problems from the point of view of environmental requirements and radical change
in the forms and methods of identifying optimal options of city development.
One can speak about problems facing us only after having answered a question -
what and how are we going to rebuild? "Serious problems, which we face, cannot be solved
on the same level of consciousness, which characterized when we generated these
problems". These words of great Albert Einstein can serve as a starting point where the first
difficult step has already been made. In the opinion of foreign and local experts, one of the
most important documents, when creating free economic areas is their ecological safety.
This concept that must be defined by:
Ability to understand the situations created by new conditions.
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394 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Prevention of ecological crises prevention with the cardinal change of goals,
priorities for development and interactions.
Complexity and systematic character of the work being conducted.
3 APPLICATION OF ECOLOGICAL CONCEPTS
The application of ecological concepts is designed to solve these problems as well
as provide rational natural resource usage and demographic problems. With democracy and
a market economy, a new approach must raise the economic and environmental work of the
city to a higher qualitative stage, rationalizing economy of all types of resources, material,
raw material and energy, integrated economic development decision-making. Practice shows
that it is impossible to achieve success in natural resource protection, by solving only-
selective problems or trying to save some resource separately from the rest. It is impossible
to solve ecological problems piece-meal. We often ignore this important principle and never
completely use it in practice. Which is why future development should be based on the
following basic ecological policy principles:
Not analysis, but an action oriented program must be the final product of
ecologically sensitive development planning.
Priority must categorically be attached to programming and to scientific
studies more closely related to activity and activity types studies, in the first
place, programming and organizational management.
• Changing city facilities and structure with an orientation on scientifically based
resource saving, wasteless technologies, which solve the ecological crisis.
No matter how many treatment facilities we build, commissioning them behind
by 10-15 years we only enlarge the polluting of the environment.
Rebuilding of city facilities should be based on new value systems: scientific,
religious and artistic. Only new, ecology-based value systems can ensure a
radical rebuilding and only such rebuilding is capable to lead out us from the
ecological dead end.
Transition from natural prevention to activist approach in forming ecological
policy.
Programming regional facilities with ecology-based technologies are much more
effective, than attempting to build large-scale often delayed and of poor quality-treatment
facilities.
It is necessary to change the basis of our activities, rather than helplessly fight
with the mounting environment pollution.
It is necessary to do more programming and less building.
• It is necessary to think on a global scale, but act locally.
It is necessary to change our environmental strategy, based on a natural
approach, on activist strategy.
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fSLAMZADE, AR1F /. 395
Ways of ensuring of Sumgait ecological safety with the account of prospect
and nature of development of industrial production complex should be a result
of ecological safety concepts. Guidelines on how this complex can work are
as follows:
- Priority capital investments, as well as foreign investments should be
directed to the reconstruction and technical renovation of operating
industries for a maximum renovation from main funds.
- Further specialization of enterprises on the basis of local raw material
resources using modern technology in combination with integrated
processing to avoid product wastes.
- Realization of measures on the environmental protection, ensuring major
improvement of ecological situation, including mainly development of
processes with technological recycling etc.
- The ecological concept under development must be targeted on the struggle
with causes of disasters, rather than with disasters themselves.
Causes are to be eliminated in time to avoid consequences. This process should
be thought-out, unceasing and systematic, rather than be dictated by emergency and be
forgotten in regular conditions. The only thing is clear that, demolition and transformation
of what we got in inheritance is a rather complex task, which will require from us a new
thinking, patience, hard and purposeful work.
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CANAS, CARLOS AND CARBALLO BROEN, ALMA 397
FOREST POLICY IN EL SALVADOR
CANAS, CARLOS AND CARBALLO BROEN, ALMA
CESTA, Policy and Environmental Law, Calle a San Marcos No. 392, San Salvador, El
Salvador
SUMMARY
As a result of the 12 year long armed conflict that was finally ended by the signing
of the Peace Treaty on 16 January, 1992, El Salvador entered a new process of
democratization and interest in the local environment, this only by the intervention of the
United Nations. It is thus a completely new atmosphere in which environmental organizations
are trying to contribute to creating awareness of environmental issues.
There is still a big effort needed to change the sad fact that El Salvador is one of the
most deforested countries in all Latin America (together with Haiti). As part of the peace
process, an ombudsman institution was created in 1992. One of its departments was
dedicated for the purpose of protecting fundamental environmental rights (3rd generation of
human rights, the right to live in a healthy environment). This right has been taken in seriously
by a number of Salvadorean non-governmental organizations that are struggling to break with
the traditional structures of the society, where only business and economic issues are
relevant.
Finally after years of lobbying and with a new political constellation of the National
Parliament, an Environmental Law was adopted in the beginning of this year (May 4, 1998),
actually the first Environmental Law that has ever existed in the country. Also, several
international treaties and conventions that earlier were only signed, are now in the process
of being ratified by the Parliament and the President, which represent a big step forward for
El Salvador. As an example of this, can be mentioned the United Nations Treaty on
Desertification, that was signed and ratified last year.
The question now is, whether we are really facing a spirit of good intentions, or rather
a simple compliance with the international trend in order to capture international funding. Only
the future will reveal if necessary steps are taken to implement drastic changes as are
required. In the following pages, we present the results of the proposed forest policy that
soon will be subjected to approval. Due to the large production and consumption of timber
and firewood in El Salvador, this policy it is often identified as an economic policy not an
environmental one. Thus, the environmental aspect of this policy is marginal. However, this
is precisely why it is believed necessary to begin giving the environmental benefits
preeminence.
1 INTRODUCTION
The forest policy has priority in El Salvador, amongst other issues, due toits critical
ecological importance in the integrity of Salvadoran life, now and in the near future. Also,
through public declarations and statistics that identify El Salvador as the most deforested
of the subcontinent, various government officials have recognized the gravity of the
deforestation problem. For 5 years, the government and private businesses have been talking
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398 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
about the necessity of creating a Forest Law and incorporating it into forest incentives to
outline the roles between the government and private business for management of the forest
resources.
Although a forest policy isn't explicitly written yet, it is the forest law that has been
used as "policy" to establish objectives and programs, and as a mechanism to regulate the
use and/or exploitation and/or protection of forest resources. The current situation for
implementing the forest law, or creating the forest policy is not ideal. The International Treaties
signed and ratified by our country relating to forests, although they are republican laws, are
almost unknown by the population and many times by the same officials in charge of
applying them.
The participants in all the process of Forest Policy, including the definition of the
problem, establishment of objectives, goals, strategies and elaboration of the document,
were:
Direction of the Green Project (USAid).
Ministry of the Environment and Natural Resources (MARN).
and Ministry of Agriculture and Livestock (MAG).
Further institutions of private businesses include:
2 People of the Forest Corporation, private wood business.
FUSADES (Salvadoran Foundation for the Economic and Social Development
that amalgamates the big private businesses of the country).
Representatives from the Bank.
2 WHAT BASIS AND STRATEGIES STIMULATED THE CREATION OFTHE
FOREST POLICY?
The basis of, and strategies which stimulated, the creation of the forest policy began
through popular present and past interests for the realization of this policy. Amongst these
there has been pressure for the country to define and/or subscribe a forest policy through
international agreements, some by means of regional, subregional and universal agreements.
The principal one was "Agenda 21" of the Earth Summit, Rio de Janeiro 1992, of which followed
agreements that later transferred into Treaties of Conventions. Three of these were signed
and ratified by the country and are known as:
Agreement For the Struggle Against Desertification and Drought.
Agreement of Climate Change.
Agreement of Biodiversity.
Further pressure for a forest policy came from the creation of the Central American
Commission of the Environment and Development and other agreements celebrated in other
international forums, such as the Summit of the Americas.
However, the focus and direction contained in the forest policy is given by the neo-
liberal market, representing the private timber business with very evident links with members
of the government in power. In addition to the listed participants in the creation process, there
were strategies used by organizations and individuals from civil society to further the forest
policy, including:
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CANAS, CARLOS AND CARBALLO BROEN, ALMA 399
The declarations made through the media to the forest service of MAG, to the
Ombudsman for the Defense of Human Rights, that there exists a fundamental
problem of logging forests in rural and urban areas.
Pressure before executive body and legislation from CESTA for the government
to sign the convention of Struggle Against Desertification and Drought.
In knowledge obtained from recent political documents, Ministry of the Environment
and Natural Resources and Ministry of Agriculture and Livestock were called non-
governmental institutions to obtain a facade of "environmentalism". However, despite this
front, we know that the interest of directors and managers for the forest policy was obtained
through the policy or the law of "Green Stamps", so that they would be able to export without
problems and sell their products on the international market. In this situation, the
campesinos, who are most in need of credits, are not subject to either benefits or credits.
The group responsible for the Forest Policy (Ministry of the Environment and Natural
Resources and Ministry of Agriculture and Livestock) had prepared a "Forest Action Plan"
of reforestation to "delay the campesinos" after the Post-War as part of the actions of policy.
However, the campesinos showed no interest — they expected some advantage of credit,
labor in their community or economic support.
In the final document made in Dec. 1997 in Monte Cristo, one of their paragraphs
says: to "define the role of the state as to the protection, conservation and restoration of
natural resources, generation and dispersal of technical information to orient forest production
mechanisms of community self-administration for the management of the forest, promote
forestry that stimulates the private forest sector to dedicate resources for reforestation,
management, harvest, industrialization and commercialization of forest products. Also it
is proposed that the activities of standardizing and facilitating the orientation to the forest
sector must be left to the state to make a free market economy."
Regarding the forestry problem, according to the World Bank in 1997, the actual
vegetative cover is between 3-5 % of the national territory and the protected zones are under
0.2 % of the territory. For the "National Environmental Strategy" the situation of forests is
the following:
The national land possesses 2 % original forest, 12 % of forest cover 2 %
mature forest.
A large part of the soils suitable for forest and lands of protection are
deforested, covering 48% of the land cover of the country, contributing to the
loss of natural resources.
The annual consumption of forest products totals 4.9 million m3 of which 93.5 %
(4.6 m3 cubed) is consumed as firewood, signifying the major volume of forest products is
destined for the production of energy. Of this, 3.9 millions of m3 is generated in rural and urban
hearths and 0.7 m3 is industrial energy used for brick and salt factories. In regards to the
"salt forest" and the exploitation of the mangroves, of the 100,000 hectares that existed in
1950, it is estimated that in 1989 only 26,000 hectares of mangroves existed.
Documents prepared and distributed by the Ministry of the Environment in
collaboration with USAid say that these figures coincide with increasing population and
suggest that overpopulation is the principal cause of deforestation. According to these
documents, this is due to excessive use of .firewood; "*it is the growing population that
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400 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
demands the firewood, wood for construction and for rural infrastructure, paper, resins and
others. This situation leads to the loss of approximately 98,485,131 metric tonnes of eroded
soil per year."
It is determined that the repercussions of these phenomenon stretch across the
productive sector, in particular to agriculture, industry and the rest of the population. Further,
loss of forests and soils also damage to the productive infrastructure, particularly by the
sedimentation of rivers by hydroelectric dams. Even though the ecological impact of
deforestation is evident, studies have not been done to quantify their magnitude. (Estrategia
pp. 33).
These repercussions listed by the Ministry of the Environment don't concur with
those of the workers of the Forest Service who say that the rural population is the most
affected sector of the forest problem. As the rural population lives directly from these
resources, the lack of water affects them on their cultivated lands promoting erosion and
lowering cultivated outputs. As a consequence they need to use more insecticides and
fertilizers to be able to obtain higher outputs and resources to combat plagues and
sicknesses.
Continuing with facts of the National Environmental Strategy, deforestation causes
various ecological problems including:
Erosion of the soils, therefore lowering the productive capacity.
Deterioration of the capacity of ground water storage in hydrological reserves.
Noxious and harmful alterations to the climate.
Deterioration of the countryside and loss of tourism opportunities.recreation
and education.
Loss of biodiversity.
Although the problems are detected by the population, there has been no emphasis
placed on the causes of such harms nor the real magnitude of such drastic changes. Official
facts published in the documents of National Environmental Strategy, Forest Policy, include
a discussion about politics and forest incentives but don't identify problems found by civil
society, especially those found by environmental groups and by neighboring associations.
CESTA, among other environmental groups, has been declaring abuses of forests in El
Salvador since 1987 especially those made in the metropolitan area of San Salvador. These
areas have been logged primarily by construction companies within which, activists found
representatives of the big capital members of the ANEP (National Association of Private
Business).
In the controversial issue of El Espino Farm (a forest in the metropolitan region of
San Salvador) being an area of dispute between one family and the cooperatives (the actual
owners), there were two orders declared constitutional that divided the land and permitted
logging for urban development. In this way, the petition made by environmental groups,
including CESTA, that was put before the conservative-dominated Legislative Assembly
. requesting that this area to be declared as an "Ecological Reserve Zone" or Forest Reserve,
was refused. This demonstrates, once again, that the environment is merely a theme of
conferences and of multinational agreements, but in reality, the government and private
business sector represent the big capital investors, not the forest nor the general population.
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STEINMETZ, ALEX H.Z. 401
COOPERATION BETWEEN LEVY-INSPECTORS AND ENFORCEMENT
INSPECTORS: A MORE EFFECTIVE WAY OF ENFORCEMENT
STEINMETZ, ALEX H. Z.
Ministry of Transport and Water Management, Postbus 2301,8901 JH Leeuwarden.The
Netherlands
SUMMARY
In 1994 an investigation was carried out by the Dutch Court of Audit on the control
policy of the levy-system of the Pollution of Surface Water Act by Rijkswaterstaat.
It showed that -according to the Court- the control policy was not clear about the
whole range of possible financial revenues for the State. A special action showed that there
is a cost-effective way to get more certainty of the possible revenues.
Also it showed that more communication leads to a more intensive cooperation
between levy-inspectors and enforcement-inspectors and so to a more effective way of
enforcement.
1 INTRODUCTION
1.1. Water Management in The Netherlands
The Netherlands is an area of 34,000 square kilometers where land and water meet.
A large part of the land is artificially developed, cultivated by people and made suitable for
living, building, agriculture and horticulture, industry and recreation.
The many dikes, locks, pumping stations, flood barriers, canals and ditches keep
the Netherlands habitable. Without these water engineering works more than half the country
(where more than half of our fifteen million people live and work) would not exist.
National government and the Water Boards are largely responsible for the important
aspects of water management. Nowadays this goes a lot further than constructing dikes and
building pumping stations. The activities of the Water Boards are now much more closely
related to other activities which include land-use planning, nature conservation and
environmental protection, and recreation, etc.
The National Government is largely concerned with legislation, policy-making aid
funding. However, national government also handles the licensing of the larger polluters the
subject of this paper.
1.2 Water Management: Organization
The Water Boards are responsible for local and regional water management. This
is stated in the Constitution and the Water Authorities Act.
The provincial authorities are able to set up and abolish Water Boards, determine
the water management tasks which have to be done by each Water board, the area in which
it will work, the structure of the governing body and how its members will be chosen. The
Province also supervises the work and the finances of the Water boards.
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402 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The national government, which has authority over the Provinces, is the final body
which is responsible for proper water management throughout the country. The government
(in particular the Minister of Transport, Public Works and Water management) is responsible
for water management affairs of national concern, the main water system or State waters:
the North Sea and the Wadden Sea, the major rivers, the water in the estuaries and the Delta
Works. The Ministry of Transport, Public Works and Water management has its own
executive body for this: the Directorate-General for public works and water management,
Rijkswaterstaat. This Directorate-General is responsible for policy-making, legislation, policy-
evaluation and maintenance of the main water system.
1.3 Water Quality Management
The tackling of water pollution problems actually started well after the Pollution of
Surface Water Act was put into operation in 1970. This law forbids the discharge of polluted
substances into surface water without a license. Besides that, the law includes a charge
system according to 'the polluter pays principle'. The pollution index is based on the content
of organic pollution measured in Biological Oxygen Demand or Chemical Oxygen Demand
and the content of heavy metals.
In 1970 water quality management mainly meant making sure that water was clean
enough for people to use again. The water should be suitable for conversion to drinking water,
for use in agriculture, horticulture and in industry. Nowadays the water authorities are
responsible for water as part of the ecosystem; i.e. water must be clean enough for the plants
and animals which live in it. Nevertheless water management is still occupied with reducing
water pollution. A lot is being done to reduce waste water. The discharge of industrial and
other wastewater has been reduced by the use of strict controls as stated in discharge
permits. These measurements have resulted in better water quality. Besides licensing and
enforcementjhe use of 'the polluter pays principle' has had a great influence on the results
that have been gained until now.
1.4 Water Quality Management by Rijkswaterstaat
Carrying out water quality management of the State waters by Rijkswaterstaat
means licensing, enforcement and levying. Approximately 225 men and women are taking
care of that task. They are responsible for 3600 discharges of waste water varying from
households to complex industries. Besides that some 150 men and women work on policy
making, evaluation, research and monitoring water quality.
During the last ten years the public and political attention to enforcement of
environmental acts and licenses has grown .
Before that enforcement did not draw as much attention as licensing and levying.
Now the instrument of enforcement is just as important as licensing.
Enforcement of the Pollution of Surface Water Act for the State Waters by
Rijkswaterstaat is carried out by about 100 men and women from the regional offices.
Enforcement is now based on national policies and the results are reported back to the
members of Parliament.
Enforcement of environmental laws is thereby an organizational and substantial
responsibility of national and local government.
Each year Rijkswaterstaat makes 7,000 visits to industries, takes about 12,000
samples of wastewater and has the laboratory in Lelystad make more than 82,000 analyses.
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STEINMETZ, ALEX H.Z. 403
2 LEVIES
2.1 Renewed Attention to Levying
An important element within the framework of the Pollution of Surface Water Act was
and still is, the levy system according to 'the polluter pays principle'. From the beginning
in 1970, polluters, mostly households and industries, have been paying for water quality
management in the Netherlands. As mentioned before, the pollution index is based on organic
pollution and heavy metals. From the seventies until now households and industries which
discharge into State waters, have paid levies of more than 2 billion Dutch guilders.
Initially levying and licensing was much more important than enforcement.
In the eighties political attention focusing on an environmental scandal emphasized
the importance of a good operating system of enforcement. Everywhere in the country new
sections were created for the enforcement of the Pollution of Surface Water Act. Because
enforcement follows naturally from licensing the attention paid to levying became of secondary
importance.
Policy is executed by the levy-inspectors of the technical institute RIZA of
Rijkswaterstaat which is situated in Lelystad.
In 1994 an investigation by the Dutch Court of Audit on the policies for the levy-
system of the Pollution of Surface Water Act by Rijkswaterstaat showed that according to
the Court the policy in regard to monitoring and oversight of the levy system was inadequate.
It did not give enough oversight of the whole range of possible financial revenues for the State.
The level of assessment is based on the analyses of the waste water by
Rijkswaterstaat but also on an application form returned by the polluters.
The consequence of this is that there is a certain risk of fraud and possible
uncertainty of the revenues for the State. This uncertainty must be limited as much as
possible by an adequate control policy.
As a result of the research of the Court of Audit, levying has again got the attention
it deserves.
2.2 'Action Storage'
In 1995 and 1996 'Action Storage' was carried out to investigate the effectiveness
of the control policy of the Surface Water Pollution Act by Rijkswaterstaat and to investigate
if intensification is a cost-effective way to obtain more certainty about the possible range of
revenues.
2.2.1 Execution
The investigation was executed in seven companies of the same industry. Within
this sector Rijkswaterstaat expected the highest risk of fraud. All the companies were asked
for their cooperation without informing them completely about the purpose of this action. The
application forms of the seven companies are all based on their own measurements.
Sampling-apparatus of Rijkswaterstaat were placed during a longer period so that
it was impossible to hold up the discharge of the waste water. These sampling-apparatus
were placed in a closet that was locked. Those closets, sampling-apparatus and tubes were
all sealed. Of course the pieces of apparatus were as far as possible operating independently
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of the companies, for instance making use of batteries. The waste water as well as the
surface water was sampled continuously. At different moments the discharge measurements
of the companies were checked with measurements by Rijkswaterstaat.
2.2.2 Results
Normally the total load of pollution of those seven companies together amount to
10,000 Inhabitants Equivalents. The returns of the companies were corrected to a total of
14,500 Inhabitants Equivalents due to this special investigation. This means an extra income
for the Dutch State of fl. 250,000. The direct costs amounted to fl. 100.000.
The yield of the levy with these companies was increased by 45 percent. Take
notice of the fact that more than half of it can be attributed to one of the seven companies
alone. If you keep this in mind it proves that this cannot be an average for the total yield of
all industries in the Netherlands.
During the preparation and execution of this action the industries were visited
frequently by levy-inspectors as well as by enforcement-inspectors of the regional offices
of Rijkswaterstaat. This intensive cooperation revealed for both inspectors unknown
situations. Apart from the fact that some industries appeared to be so complex that only
after an intensive and total investigation could differences from a normal situation be detected.
Meanwhile appointments have been made to continue this cooperation between levy-
inspectors and enforcement-inspectors.
Levy- and enforcement-inspectors have different responsibilities. During the
execution of this action it became clear that a gray zone existed. It was for instance not
obvious who was responsible for the communication with the company. Since then the
responsibilities have been described and a course book has been written with special
attention to enforcement-inspection and the issuing of permits. During the summer of 1997
eighty percent of people concerned have taken a special course
In certain cases there was not enough information on the normal conduct of
businesses to determine differences. This was due to the fact that these companies were
not visited enough. Since then, the frequency of visits to more risky companies has been
increased to a more acceptable level.
During this 'Action Stage' it appeared that important information about the conduct
of businesses was not only gained by the regular contact persons but also from employees
present on the site/on the work floor. Those are often less suspicious and more open than
the official representative of the company.
In summary, actions like this form an important addition to the normal and routine-
controls by the regional offices of Rijkswaterstaat.
3 CONCLUSIONS
Special targeted intense investigations in which activities for selected targets are
undertaken over an extended period of time are both financially and otherwise a success.
Especially the learning process of the regional offices and the RIZA was of great value. With
the newly obtained knowledge more specific targeted monitoring and enforcement are
possible.
The costs are relatively high. Due to the intensity it is not to be expected that the
costs of further actions will be lower. The obtained knowledge and experience cannot be
quantified in monetary terms, but is certainly valuable.
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STEINMETZ, ALEX H.Z. 405
Since then Rijkswaterstaat has decided that these kinds of actions have to be part
of the control policy for the levy-system of the Surface Water Pollution Act.
The more intensive communication between the enforcement-inspectors of the
regional offices and the levy-inspectors of the RI2A in Lelystad has led to a more effective
cooperation between those two parts of Rijkswaterstaat.
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THEME #5: INTERNATIONAL COOPERATION 407
THEME #5
INTERNATIONAL COOPERATION/TRANSBOUNDARY
COMPLIANCE AND ENFORCEMENT ISSUES
International cooperation has become an essential element of most environmental protection
and enforcement programs due to: 1) globalization of trade raising the needs for both fairness
and sustainability, assuring that the benefits of free trade are not eroded by unacceptable
environmental and related social costs, 2) shared environmental resources whose quality is
affected by the ability of border states to achieve the environmental benefits and protections
of regulatory compliance, 3) patterns of pollution, illegal waste and illegal chemical transport
that cross many borders and 4) the seemingly exponential growth of criminal activity which
seeks to take advantage of both perceived and actual weaknesses in environmental
enforcement internationally to avoid legitimate costs of environmental protection.
The discussions used as a point of departure results of consultations on enforcement
undertaken at the direction of G-8 environmental leaders on problems and initiatives to address
illegal trade in CFC and hazardous waste, results of experience in international cooperation
in environmental enforcement through bilateral and multilateral networks such as IMPEL in the
European Union, the CEC in North America and INTERPOL on a global basis. Discussions
will build on papers and results of workshop discussions at the Third and Fourth International
Conferences. Discussions also benefited from the "Potential Projects List" commissioned
by the Executive Planning Committee to promote global and regional networking. This
document lists and contains descriptions and results of actual and potential projects for
international cooperation in networking, capacity building and enforcement cooperation.
Discussions also drew upon the technical support document prepared for the Fourth
International Conference on "Transboundary Illegal Trade in Potentially Hazardous (Waste,
Pesticides, Ozone Depleting) Substances."
Theme #5 Workshops:
5 A Illegal Transboundary Shipment of (Hazardous) Waste
5 B Compliance with International Environmental Agreements: Focusing
on Montreal Protocol and CITES: Illegal Shipments of CFC and Other
Ozone Depleting Substances and Illegal Trade in Endangered
Species
5 C Illegal Shipments of Dangerous Chemicals Including Pesticides
5 D International Enforcement Cooperation to Protect Shared Resources
and Prevent Transboundary Pollution
5 E Collaborative Targeting of Enforcement on an International Scale
1. Summary of Theme #5 Panel Discussion, Moderator: A. Gallas;
Rapporteur J. Gerardu - 409
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THEME #5 PANEL DISCUSSION: INTERNATIONAL COOPERATION 409
SUMMARY OF THEME #5 PANEL DISCUSSION: INTERNATIONAL
COOPERATION/TRANSBOUNDARY COMPLIANCE AND
ENFORCEMENT ISSUES
Moderator: Andreas Gallas
Rapporteur: Jo Gerardu
1 INTRODUCTION
International cooperation is an essential element of most environmental protection
and enforcement programs. This is due to:
globalization of trade and fairness and sustainability not causing unacceptable
environmental and social losts;
shared environmental resources;
pollution and waste crossing borders; and
growth of criminal activities to avoid legislative costs.
The results and needs for international cooperation will be reported.
2 PRESENTATIONS
2.1 Experience of the People's Republic of China with Illegal Transboundary Waste
Mr. Hongjun Zhang provided an overview of the experience of the People's Republic
of China in handling several instances they discovered of illegal shipment of hazardous waste
from other nations within Asia, from Europe and the United States. Specific cases were
described from both the detection and resolution of the cases with international cooperation
in removing the illegal wastes from the country. Priority was given by the government to
strengthening China's laws addressing legal disposal, treatment and storage of hazardous
waste and to train and equip government staff to address the problem. After some very high
visibility cases with a strong response to the violators, these instances of illegal shipment
have decreased dramatically, but they continue to be vigilant.
2.2 UNEP Support for Enforcement in International Environmental Agreements
Mr. Lai Kurukulasuriya described UNEP's support in helping negotiations of
international environmental agreements including Basel, on transboundary movement of
hazardous waste, ozone regimes including the Vienna Convention and Montreal Protocol,
biodiversity and desertification at the global levels, and at the regional levels a wide range
of issues such as the regional seas program and the Convention of Southern African States
on promoting the conservation of Wildlife. Now UNEP support is directed at the Convention
Secretariats to implement decisions of the Conference of Parties commemorated in these
conventions. Another effort on the part of UNEP is to help coordinate the work of the
Secretariats to ensure the efforts are cost-effective there has been a fair amount of overlap.
In more recent times, there has been a request to UNEP for assistance in helping with
regional agreements relating to transboundary issues such as air pollution and management
of international water resources. This is an area of focus in years to come. When one talks
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of international cooperation among the nations implementing a regime that relates to
addressing a particular environmental concern the role that UNEP plays is to galvanize
support to the parties and strengthen their capacity to implement these conventions. In the
last 10-15 years UNEP has been involved in both areas of support. Mr. Kurukulasuriya
provided examples of how UNEP promotes collective action and cooperation under the
CITES, Montreal Protocol and Basel conventions to support the member parties to the
conventions. In regard to CITES, on a regional basis the Secretariat receives information
from various sources on possible shipments of prohibited species and sets in place alerts
to customs departments to manage and control the situation. Efforts of the Secretariats have
succeeded on a number of occasions. The Basel Convention implementation involves an
active role in disseminating information on impending possibilities of illegal shipments of
hazardous waste. Information and support are used to mobilize resources to deal with
transgressions. In the case of the Montreal Protocol, the Secretariat helps through multilateral
fund to help support achievement of cutoff limits on ozone depleting substances. This has
resulted in a significant decrease in the use of Ozone depleting substances. International
registrars for toxics, IRTPC, Secretariat in Geneva collected a significant body of information
on chemicals and other substances traded within the purview of this instrument. Support
of implementation of multilateral Agreements involves four strategies: 1) responsiveness to
the demands of the states; 2) help support the development of authorities and activities that
are country driven; 3) partnership among international organizations; and 4) development
of practical, results oriented activities within the absorptive capacity of the countries. The
International Network for Environmental Compliance and Enforcement (INECE) process
provides a huge reservoir of information, materials, expertise and experience at a global level
dealing with implementation of international conventions. We will be discussing tomorrow
how we can take this one step further to the national and regional levels.
2.3 Lessons from IMPEL Projects
Mr. Kees Boekel noted that the specific topics of hazardous waste and ozone
depleting substances had been discussed at previous conferences. There are many steps
in the right direction but at the same time an adequate level of compliance and enforcement
has not been achieved worldwide. The question is how the efficiency and effectiveness of
enforcement can be improved and in particular how cooperation among relevant official bodies
in each of these areas be reinforced to achieve this. Out of the meeting of the G-8 leaders
this year came a strong statement on a commitment to develop cooperative efforts to combat
environmental crime, specifically ozone depleting substances and transboundary movement
of hazardous waste. The statement stressed the importance of formal and informal networks
such as INECE, IMPEL and those of the UN. Since illegal affairs are still being discovered
in transboundary transport, pilot projects in the European Union in the context of IMPEL were
set up to harmonize enforcement of European Environmental Legislation. The Transboundary
Projects were set up to learn to cooperate despite differences to achieve a more permanent
network. All European Union countries now are participant in the transboundary project
carried out with monitoring of selected waste flows, visiting companies and carrying out
transport inspections in a coordinated manner. This year a project year a project was carried
out between The Netherlands and Germany in the River Rhine, a major transport route
connecting Rotterdam with inner Europe. Environmental authorities worked together with
police and customs officials. The Basel Secretariat was also involved to link to information
on worldwide activity. It represented a considerable strengthening of enforcement efforts with
inspections of facilities and transport up and down the length of the Rhine.
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THEME #5 PANEL DISCUSSION: INTERNATIONAL COOPERATION 41OA
In Europe through Impel they have also set up and starting an initiative on CFC's to
address ozone depleting substances. Mr. Boekel recommended several areas where
increases in cooperation for enforcement of Basel and the Montreal Protocol are necessary
based on these experiences. First, a large number of participants are involved and the
efficiency and effectiveness of enforcement needs more structure. Specifically joint
enforcement targeting is needed to specific sources. We must embark on these structure
projects to learn to know each other and learn by doing within the context of existing
mechanisms for cooperation such as within the European Union. Three components are
important: a) enforcement strategy, b) cooperation in practice and c) provision of information.
In regard to enforcement strategy, each project should have established priorities, targets
and desired outcomes. A unified approaches is needed as well including provision for
prosecution, return of the waste, and publicity. In regard to cooperation, more joint
enforcement is needed to show progress specifically inspection activity. Multi-year
workprograms are needed and the focus placed not only on transport but also on disposal.
The technical and administrative aspects of working arrangements have to be specified
throughout the chain including customs and police. Education and training are needed
along with harmonization of inspector protocols. Finally, in regard to information, the
Secretariats of Basel and the Montreal Protocols have an important role which could be
expanded. From notification to material stream, to processing capacity we need to operate
off of this information. To make this happen, INECE needs to put this before the regional
INECE networks as well to develop specific enforcement cooperative projects.
2.4 The Role of INTERPOL and Criminal Enforcement to Address Illegal Shipments
Under International Environmental Agreements
Mr. Earl Devaney noted that there is now general agreement that without strong laws
and consistent fair enforcement that environmental objectives cannot be achieved. It is also
clear that international public opinion and most nations have reached a consensus that
knowing violations of environmental law are properly viewed and prosecuted as crimes. The
G-8 ministers specifically highlighted the role of both enforcement and criminal enforcement
in particular to address these crimes. The common basis for these crimes is a deliberate
attempt to save money or to make money. INTERPOL has been in existence a very long
time. In 1992 it embarked on the mission to address environmental crimes and has held
an annual meeting in Lyon to address it among the 177 nations now part of the INTERPOL
network. One of the most successful developments is the creation of the Eco-message
system to aid in creating secure communications among law enforcement personnel of the
various nations. Because of the high degree of cooperation among the law enforcement
community internationally, Mexico was able to shut down a sham recycling operation and
the U.S. was able to stop a waste broker from illegal movement of hazardous waste exported
from Belgium. Because of this system, the U.S. was able to cooperate with the People's
Republic of China by communicating through Interpol about illegal shipment of hazardous
waste coming from California to the PRC. More important, because of these communications
and cooperation we were able to identify a bigger problem and formed regional networks
involving federal, state and local environmental and law enforcement officials to thwart
additional attempts to illegally export hazardous waste.
Mr. Devaney emphasized that within the U.S. networks are essential for effective
criminal enforcement. Even within his own office, he needs to draw upon and unify
investigators, prosecutors, forensics specialists and training functions.
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41 OB FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 DISCUSSION
A question was asked of Mr. Kurukulasuriya concerning the Trade and Environment.
UNEP's Division in Geneva is working in close collaboration with the Environmental
commission of the World Trade organization to bring into focus environment and trade
issues. The opposite is also true that they regularly review the impact of multilateral
agreements on trade. A question was also asked about whether UNEP is involved in the
Multilateral Agreement on investment that is being drafted. Mr. Kurukulasuriya indicated that
he was unfamiliar with this agreement but was sure that UNEP would be consulted. A
question was asked about the potential loss of sovereignty and how that was addressed within
the European context when they cooperated on enforcement, indicating that these concerns
have been raised within the Americas in the Amazonian and also the Andean Pact countries.
The response by Mr. Boeke! indicated that the answer comes from cooperation and not a
loss of sovereignty. Once these nations have come to work closely together and help each
other reach common goals this is not an issue.
A further question was asked about whether the enforcement projects involving
coordinated inspections and have resulted in real enforcement with real consequences
including fines or penalties. Mr. Boekel indicated that there has been general agreement
in conducting these projects that the violators should be fined given the seriousness and
impact of illegal movement of hazardous waste, for example. They reached agreement in
advance with public prosecutors to gain their support and cooperation in following through
on violators that were detected.
During the discussions, the importance of NGO participation was stressed in
regional, national and global networks for enforcement. UNEP will develop more programs
to involve NGOs in the near future. Also it was pointed out the new Prior Informed Consent
Convention (PIC) will have to develop enforcement mechanisms and strategies.
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WORKSHOP 5A: ILLEGALTRANSBOUNCARY SHIPMENTOF (HAZARDOUS) WASTE 411
WORKSHOP 5A
ILLEGAL TRANSBOUNDARY SHIPMENT OF
(HAZARDOUS) WASTE
This topic has been addressed at previous international conferences, has been monitored
by the Basel Secretariat within UNEP and specifically reviewed in a consultation of
enforcement officials commissioned by the G-8 environment leaders. The INECE wished to
make progress at this Fifth International Conference workshop by defining specific measures
that enforcement officials around the globe believe are needed to create a more effective
deterrent to put a stop to illegal activities in the shipment of hazardous waste and household
waste that is mischaracterized or contaminated with hazardous waste.
6. Summary of Workshop Discussion, Facilitators: C. Boekel, A. Gallas,
A. Lauterback; Rapporteurs: M. Fenders, J. Rothman 413
7. Compliance With and Enforcement of the Basel Convention on Control
Transboundary Movements of Hazardous Wastes and Their Disposal,
Rummel-Bulska, Iwona 419
Papers 1 - 5 for Workshop 5A and a list of related papers from other International
Workshops and Conference Proceedings are in see Volume 1
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412 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENTORG5W£W
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WORKSHOP SUMMARY: 5A ILLEGALTRANSBOUNWRY SHIPMENT OF (HAZARDOUS) WASTE 413
SUMMARY OF WORKSHOP: ILLEGAL TRANSBOUNDARY SHIPMENT OF
(HAZARDOUS) WASTE
Facilitators: Workshop 5A: Kees Boekel, Andreas Gallas
Workshop 5AA: AndrewLauterback
Rapporteurs: Workshop 5A: Michael Renders
Workshop 5AA: John Rothman
GOALS
Discussions were designed to address the following issues:
Ways violators are circumventing provisions of the Basel convention and other
laws governing the legal shipment of waste and how violators are being
detected.
• How procedures and other requirements could be better communicated,
understood and followed.
How illegal activities are identified and the experience of enforcement
personnel in defining the information that is needed to identify such violators.
• Responses taken to address violators and why, and how effective they have
been.
The need for formal and informal lines of communication and the nature of
information and to whom it must be shared among law enforcement personnel,
customs officials, environmental managers and environmentally enforcers
domestically.
• Types of bilateral and multilateral international cooperation and information
sharing and whether they have been useful. The level of cooperation and
information sharing between and among national enforcement organizations
necessary to support effective enforcement.
Design and implementation of waste tracking systems for transboundary
shipments and linkages of domestic systems to those of other nations.
• Recommendation's for initiatives to fill gaps, identify the institutions and actions
needed to facilitate effective enforcement and overcome particular problem
areas in enforcing these types of requirements.
1 INTRODUCTION
Participants from 16 countries met to discuss their experience with methods for
limiting, detecting, and enforcing regulations on the illegal import and export of hazardous
wastes, toxic chemicals, or contaminated products. They presented views on the most
important aspects for countries to consider in implementing programs to limit and respond
to illegal shipments of hazardous waste. The discussion ranged from views on the networks
needed within governments for effective compliance promotion and enforcement to the need
for international access to high quality information on illegal waste shipment activity. While
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414 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
some nations argued for an international regime that banned all trade in wastes, other
recognized that existing strict controls and high costs for lawful disposal drive the black
market in illegal shipments and disposal and urged the improvement of enforcement
mechanisms and technologies.
The importance of enforcement of laws and international agreements governing
trans-boundary waste shipments was apparent to many countries as a result of specific
instances of unlawful shipping and the recent dumping of waste reported by India, Brazil,
Nigeria, and China. All those present were interested in increasing international cooperation
and information exchange on these issues.
2 PAPERS
Papers dealing with the subject can be found in Volume 1 of the proceedings under
headings as follows:
China's Control Over Illegal Shipments: Legislation and Enforcement, Zhang,
Hongjun, p. 623.
Hong Kong's Experience in Control of Illegal Shipments of Waste, Lei, Patrick
C.K., Wong, C.F., and Kwong, Vincent Y.P, p. 627.
Liquid Waste Management in Western Australia: A Case Study in Enforcement
and Compliance, Parker, Adam J., Davies, N. J. and Rychner, H p.221.
The G-8 Mandate for Expanded Cooperation to Combat International
Environmental Crime, Recent Developments in the United States, and a case
study: Project Exodus Asia, Devaney, Earl E. and Penders, Michael J. p.337.
• Transboundary Environmental Crimes: German Experiences and Approaches,
Gallas, Andreas and Werner, Julia, p. 375.
On page 620 of Volume 1 are listed another 25 papers from previous International
Workshop and Conference Proceedings on the same subjects.
3 DISCUSSION SUMMARY: WORKSHOP 5A
3.1 Methods of Detection for Shipments of Waste with Potential Environmental
Hazards
Participants acknowledged the difficulties in detecting illegal shipments of
hazardous waste crossing their borders and the importance of swift communication and
continuing cooperation between law enforcement and regulatory agencies on both ends of
an illegal shipment. Shipments outside the regulatory scheme altogether and shipments
where the contents were misrepresented in accompanying documentation present challenges
to governments and their various specialized law enforcement units with responsibility for
waste and export and import controls.
Although many felt that the techniques used by those involved in illegal activity make
it difficult to detect illegal shipments, a number of methods have proven effective in detecting
and deterring this illegal activity. In the discussion of methods for detection, emphasis was
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WORKSHOP SUMMARY: 5A ILLEGALTRANSBOUNCWRY SHIPMENTOF (HAZARDOUS) WASTE 415
placed on establishing networks and central contact points for the gathering of intelligence,
timely and routine exchange of information, central analysis of intelligence, and coordination
between the different levels of government with relevant information.
In addition to customs officials and inspectors focusing on illegal waste shipments,
illegal trans-boundary shipments are detected through the border activities of police
departments, task forces, and other state, national, or local agencies such as state
regulators and public prosecutors, the BKA in Germany, as well as local health and fire
departments. Hazardous waste shipments may be only one part of the illegal activity carried
out by individuals or organizations, and so operations that smuggle drugs, weapons, stolen
automobiles, should be scrutinized for waste shipments as well, including chemicals and
their waste products used for the manufacturing of illegal narcotics. Coordination, training,
and information sharing among those governmental bodies likely to uncover illegal waste
import/export activity is essential.
3.2 Understanding and Implementing Hazardous Waste Import/Export Requirements
It was stressed that the understanding of hazardous waste import/export
requirements should be improved at customs agencies and among law enforcement within
a single country and between nations. A continuing concern is the definition of "hazardous
waste" and that many countries and international organizations have adopted different
definitions and interpretations.
Given the fine distinctions between some of the definitions, categories for expedited
trade and repatriation, and exemptions for various purposes, it remains difficult to maintain
the technical expertise to identify contraband shipments at the border crossing itself. This
convinced many of the need to broaden the range of cooperation between agencies in
making these determinations, so that remedies could be established from the final point of
destination all the way back to the generator, as well as establishing liability for various
brokers, shippers, and intermediaries. To facilitate all of this, it is important to have the best
possible paper trail and records at every stage of the process.
An important issue continues to be the definition applied to materials, including
waste product, intended for recycling or reclamation as opposed to hazardous waste
intended for disposal. Anumber of governments have been accused of exporting hazardous
waste that they define as materials for recycling or reuse. Although participants realized
that this issue could be difficult to resolve, many called for a greater reliance on technical/
science based definitions of hazardous substances, continuing education on materials and
facilities used for legitimate recycling, and a harmonization of definitions where possible.
3.3 Responses to Violations
Participants focused on responses to violations that had particular relevance to
illegal shipments of hazardous waste. In general, participants believe that a strong response
to violations is necessary to defer future violations. Several noted that the Basel Conventional,
Article Four considered illegal shipments of hazardous waste to be criminal. In addition,
since detection is difficult in many cases, it was agreed that penalties should be costly to
provide strong disincentives to other potential violators. This was consistent with the law in
most countries, which provided stiff penalties and incarceration for knowingly importing
banned waste products.
Participants discussed responses that have proven effective orthat seem
appropriate to hazardous waste import/export violations. One popular remedy was to require
transporting companies or countries to take back waste and clean-up problems inthe country
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of destination, as well as establishing liability for all companies involved. While there was
some difference of opinion on the responsibility of the originating country as opposed to the
company, the majority of the participants felt that the country of export must take some
responsibility for actions of companies operating within its borders, and could then take legal
action, as appropriate, against any individual or entity within its own jurisdiction.
Other participants noted the implicit economic penalty associated with impoundment
of vessels transporting hazardous waste illegally. Although this measure appeared most
appropriate for ship-borne waste, it has proven effective in Nigeria and elsewhere. Negative
publicity and the public can play an important role in pressuring exporters to abide by
accepted practices for hazardous waste shipments. In some instances, public reaction has
caused transporters to modify their waste disposal plans, even for shipments that met
existing regulations.
3.4 International Cooperation
International cooperation on enforcement activity is also increasing, primarily through
initiatives of INTERPOL and other international investigative bodies. Of particular interest
to participants are the creation of databases of criminal activity that will aid nations to identify
exporters with a history of hazardous waste violations and other related illegal activity.
Participants urged greater efforts at cooperation through existing bi-lateral, regional, and
multilateral mechanisms.
It was recognized that informal networks and more formal international arrangements
can provide important support for new programs governing import./export of hazardous waste.
Participation in international treaties such as the Basel Convention, the Bamako agreement,
and other multinational or regional agreements can provide a formal demonstration of
commitment to responsible action on control of hazardous waste shipments.
3.5 Conclusion
Despite more than a decade's experience in implementing international regimes and
national laws to control trans-boundary shipments of hazardous wastes, illegal shipments
remain a problem, particularly in developing nations which continue to receive shipments they
consider to be unlawful and in violation of the Basel Convention and other agreements. All
participants agreed that more, and more sophisticated enforcement is required to detect
• illegal shipments. In order to facilitate better enforcement of international agreements and
national laws governing waste, there needs to be greater public awareness of the problems
and greater coordination between different levels of government domestically and better
cooperation between enforcement agencies internationally.
While recent advances in technology make possible a whole new level of monitoring
through globally positioned satellites and electronic data exchange, unless governments
develop the political will, shaped by public opinion, and commit the resources necessary
to deploy new methods for tracking and monitoring waste shipments such as those reported
by Western Australia in Volume 1, enforcement efforts will remain reactive and largely
inadequate. As the Basel Convention moves towards more uniform definitions of waste and
recyclable materials internationally, it is hoped that nations can increase their cooperation,
and improve their technologies and data exchange, to focus on illegal shipments and begin
to deter and prevent illegal shipments altogether
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WORKSHOP SUMMARY: 5A ILLEGAI.TRANSBOUNDARY SHIPMENT OF (HAZARDOUS) WASTE 417
4 DISCUSSIONSUMMARY:WORKSHOP5AA
4.1 Ways Violators Circumvent Provisions of the Basel Convention and Other Laws
on Shipment of Waste.
The ways violators circumvent the law are numerous. Every country that generates
or receives produces hazardous waste provided multiple examples including:
Mislabeling of hazardous waste.
Hazardous waste hidden in legal shipments (e.g. PCBs- Canada and Hong
Kong).
Unidentified hazardous waste imported and abandoned (e.g. Thailand).
Fraudulent recycling (e.g. Australia, Mexico, U.S.).
Imported hazardous materials that are imported, become or create hazardous
waste, and then are abandoned (e.g. Pesticides, Albania) or improperly
handled (e.g. Mexico).
Hazardous waste imported negligently or because of lack of knowledge (e.g.
Purportedly separated metals and plastics from municipal waste streams may
in fact be contaminated).
Use of transshipment centers, e.g. Hong Kong and Singapore, to launder
waste.
Smuggling of hazardous waste for abandonment.
The group noted that hazardous waste is an open field for organized crime.
4.2 Types of and Successes in Bilateral and Multilateral International Cooperation
and Information Sharing
Discussions included how procedures and other requirements could be made better
and how violators are being detected. The group reported a number of successes:
Tracking of shipments of hazardous waste. Australia reported a sophisticated
electronic tracking system for shipments using GPS that allows real time
tracking of every registered hazardous waste shipment. U.S. reported a
cooperative tracking system, HAZTRAKS, that combines information from the
U.S. and Mexico to track waste transferred across their common border. The
ability to identify the export of waste may depend upon the power of domestic
tracking systems. The group recognized a need for a closed loop system that
would require or provide for reporting from the point of ultimate use, treatment
or disposal of waste to the country of origin.
Cooperation with customs agencies. Many countries acknowledged the need
for and reported success in working with their customs agencies. Typically,
customs agencies have not been interested in hazardous waste until driven
by concerns of safety for their agents. Good cooperation with customs
agencies is enhanced by frequent meetings, joint operations, and provision
of training and resources.
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4.3 Problems with Detection of Illegal Shipments
The group noted specific problems to be overcome to detect illegal shipment of
hazardous waste.
The vast amount of legal trade complicates detection of illegal activities.
Relations with customs have not always been successful and always need to
be improved.
There is an acute need for better intelligence (Immediately subsequent to the
workshop several participants began discussion of bilateral intelligence
arrangements.).
4.4 Legal Responsibilities
The group identified the establishment of responsibility and legal liability as a powerful
means to motivate behavior. Specifically, the group discussed placing more responsibility
and legal liability on the carriers or transporters. The group recognized a series of issues
that would need to be addressed prior to shifting the burden.
How much do carriers and transporters know about their cargoes and how
much can they be expected to know? (There was recognition that in some
circumstances there are a small number of large carriers that might be able
to take on greater responsibilities. In other circumstances there are thousands
of small transporters who probably could not)
What is the balance between placing further responsibilities on carriers and
the benefits to be derived?
What kind of certification/regulation would be most effective?
4.5 Areas for Further Study
The group discussed several ideas that would require further study. There was no
consensus as to their practicability.
Mass balance focusing on the country of origin. (By mass balance was meant
a comparison of inputs.and outputs, including product and waste, at a
production facility. Inputs and outputs would need to balance. The production
facility would need to account for the waste produced as calculated from inputs
and outputs other than waste.)
Mass balance as a condition of export.
Use of industrial category or group to find the best and worst performers to set
conditions of export.
Use of economic instruments such as generator bonds for waste disposal to
overcome perverse incentives.
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RUMMEL-BllLSKA, fWONA 419
COMPLIANCE WITH AND ENFORCEMENT OF THE BASEL
CONVENTION ON CONTROL TRANSBOUNDARY MOVEMENTS OF
HAZARDOUS WASTES AND THEIR DISPOSAL
RUMMEL-BULSKA, IWONA
Secretariat of the Basel Convention, UNEP, 15 Ch. des Anemones, 1209 Chatelaine,
Geneva, Switzerland 10
SUMMARY
The survey among Parties to the Basel Convention provided useful information on
the level of implementation of the Convention. The progress made in implementation as well
as areas where obstacles persist could be identified. Parties also identified key elements
where assistance or cooperation would be required for full implementation of the Basel
Convention.
1 INTRODUCTION
The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal, adopted by the diplomatic conference in Basel in 1989, was
developed under the auspices of the United Nations Environment Programme (UNEP) and
entered into forced in May 1992. As of July 1998, the Basel Convention has 120 states and
the European Community as Parties. The rapidly increasing number of Parties reflects the
growing awareness and interest of States in this important sector of environment and health
protection. The following are the key objectives of the Basel Convention:
To reduce transboundary movements of hazardous wastes and other wastes
subject to the Basel Convention to a minimum consistent with their
environmentally sound management.
To dispose of the hazardous wastes and other wastes generated, as close as
possible to their source of generation.
To minimize the generation of the hazardous wastes in terms of quantity and
degree of hazard.
• To ensure strict control over the movements of hazardous wastes across
borders as well as the prevention of illegal traffic.
To prohibit shipments of hazardous wastes to countries lacking the legal,
administrative and technical capacity to manage dispose them in an
environmentally sound manner.
To assist developing countries and countries with economies in .transition in
environmentally sound management of the hazardous wastes they generate.
The Basel Convention is the broadest and most significant international treaty on
hazardous wastes presently in effect. The impact of hazardous wastes on the environment
has large repercussions, particularly on the quality of waters and land. Effective regulation
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of the management and disposal of hazardous wastes require cooperation at the global level.
The Basel Convention is the first and foremost global legal instrument regulating the
transboundary movement of hazardous wastes and their disposal.
2 MAIN PROVISIONS OFTHE CONVENTION
The overall goal of the Basel Convention is to protect human health and the
environment against the adverse effects which may result form the generation, transboundary
movements and management of hazardous and other wastes. To achieve this a number of
interrelated objectives are to be fulfilled:
Reducing transboundary movements of wastes to a minimum consistent with
their environmentally sound and efficient management, and controlling any
permitted transboundary movement under the terms of the Convention.
r Minimizing the quantity and the hazards posed by wastes generated and
ensuring their environmentally sound management including the treatment of
these wastes as close as possible to their source of generation.
Assisting developing countries in environmentally sound management of the
hazardous and other wastes they generate.
In other words, the aim of the Basel Convention is to help reduce the number of
transboundary movements and the quantity of hazardous wastes to a minimum, and to
manage and dispose of these wastes in an environmentally sound manner.
Article 4 provides general obligations to the Parties including:
Parties exercise their right to prohibit the import of hazardous wastes.
Parties shall prohibit the export of hazardous wastes to the Parties which have
prohibited the import of such wastes.
For wastes not specifically prohibited by the importing State, Parties shall
prohibit the export of hazardous wastes if the importing State has not
consented in writing to the specific import.
Each Party shall prevent the import of hazardous wastes if it has reason to
believe that the wastes in question will not be managed in an environmentally
sound manner.
Any Party shall not permit the export and/or import of hazardous wastes
involving a State that is not a Party to the Convention.
Parties agree not to allow the export of hazardous wastes for disposal to
Antarctica.
According to Article 11, the Parties may enter into bilateral, multilateral or regional
agreements or arrangements regarding transboundary movements of hazardous wastes if
such agreements do not derogate from the environmentally sound management as required
by the Convention. Parties should notify the Secretariat of any bilateral, multilateral or
regional agreements or arrangements and those which they have entered into prior to the
entry into force of this Convention, for the purpose of controlling transboundary movements
of hazardous wastes and other wastes which take place entirely among the Parties to such
agreements.
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RUMMEL-BULSKA, (WONA 421
Article 4 paragraphs 1 (a) and (b) states that Parties to the Basel Convention exercise
the right to prohibit the import of hazardous wastes. Article 4, paragraph 1 (b) also states
that Parties shall prohibit the export of hazardous wastes to the Parties which have prohibited
the import of such wastes. The First Meeting of the Conference of the Parties referred to
the prohibition of transboundary movements of hazardous wastes from industrialized to
developing countries. Recognizing the increasing desire and demand of the international
community for the prohibition of transboundary movements of hazardous wastes and their
disposal especially in developing countries, the Second Meeting of the Conference of the
Parties adopted Decision 11/12. It prohibited immediately all transboundary movements of
hazardous wastes which were destined for final disposal from OECD to non-OECD countries.
All transboundary movements of hazardous wastes from OECD to non-OECD countries
destined for recycling or recovery operations is to be phased out by 31 December 1997 and
prohibited as of that date.
The Third Meeting of the Conference of the Parties adopted Decision Ml/1 on the
Amendment to the Convention. This amendment stated that Parties which are members
of OECD, EC, Liechtenstein are to prohibit immediately all transboundary movements of
hazardous wastes destined for final disposal to other States. These States should phase
out by 31 December 1997 and prohibit as of that date all transboundary movements of
hazardous wastes which are destined for recover, recyling, reclamation, direct reuse or
alternative uses. A critical factor acknowledged by the Conference of the Parties was that
transboundary movements of hazardous wastes, especially to developing countries, have
a high risk of not constituting environmentally sound management of hazardous wastes as
required by the Convention. The Parties also recognized the need to cooperate and work
actively to ensure the effective implementation of this decision. Moreover, this amendment
needs to be ratified by two thirds of the Parties present at the third Conference of the Parties
in order to come into force.
In the light of increasing system of control measures under the Basel Convention
the Conference of the Parties decided to study the issues related to the establishment of
a special mechanism for monitoring the implementation of and compliance with the Basel
Convention. Accordingly the Consultative Sub-group of Legal and Technical Advisers was
requested in 1995 to perform this function.
3 IMPLEMENTATION CONTROL, NON-COMPLIANCE PROCEDURE AND
DISPUTE SETTLEMENT
Recently a non-compliance regime mainly based on the Ozone Montreal Protocol
and to some extent on the European Sulphur Protocol regime became a critical condition
for proper implementation control and effectiveness of international environmental
agreements. The Ministerial Conference in Lucerne 1993 urged Contracting Parties to
environmental conventions to ..."work towards non-compliance regimes which:
aim to avoid complexity;
are non-confrontational;
are transparent;
leave the competence for decision-making to be determined by the
Contracting Parties;
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leave the Contracting Parties to each Convention to consider what technical
and financial assistance may be required within the context of the specific
agreement;
include a transparent and revealing reporting system and procedures, as
agreed by the Parties." (Paragraph 23.1 of the Declaration by the Ministers
of Environment).
The element of assisting a State Party which has not fully complied with the
provisions of the Protocol instead "punishing" it, is protecting the effectiveness of the legal
regime established by the Protocol and provides the other State Parties with the belief and
expectation that if in the future they would find themselves in the same situation they would
be protected rather then incriminated; this also helps getting from the Contracting Parties
true reports on the state of implementation of a treaty which make the system of achieving
global goals of agreement more effective and transparent.
An indicative list of measures that might be taken by a meeting of the Parties in
respect of non-compliance with the Protocol attached to the Non-Compliance Procedure
adopted by the fourth meeting of the Parties to the Montreal Protocol puts on the top of the
list of measures "Appropriate assistance, including assistance for the collection and reporting
of data, technical assistance, technology transfer and financial assistance, information
transfer and training" followed by "issuing cautions" and "suspension of specific rights and
privileges under the Protocol...".
This approach to non-compliance which could be considered as too "soft and
unnecessarily "negotiable" is still in the environmental agreements more suitable for achieving
the overall goals of environmental treaties and also allows all Parties to a treaty to work
towards what could be called "global capacity building process for implementation and
effectiveness of environmental regimes."
This softness can, however, create difficulties while applying to the cases of illegal
traffic and other similar breaches of the provisions of treaties which could be results of
"malice and greed" rather than results of lack of technical and/or administrative capacity. In
such cases, lack of decision-making power by the Compliance Committee should be also
looked at as a serious handicap of a system.
The Contracting Parties to the Basel Convention also have tended to create a
system of non-compliance similar to the one of the Montreal Protocol, rather than to start
using the system of settlement of disputes envisaged for in the Convention (Article 20 -
Settlement of Disputes and Arbitration - Annex VI to the Convention), basing its reasoning
on the assumption that non-compliance with the Convention may be due to practical
difficulties in implementation rather than on intent.
The Basel Convention contains some specific provisions for monitoring and
supervision of state parties' implementation of and compliance with obligations arising under
it. First of all, it requires substantial adjustments in the laws or administrative practices of
Parties to the Convention which raise complex compliance issues. Since entry into force
of the Convention, controlling compliance and monitoring implementation has become even
more of a challenge after adoption of several decisions by the Conference of the Parties (COP)
— in particular Decision 11/12 by the Second Meeting of the COP — and by the work of various
subsidiary bodies set up to facilitate implementation of the Convention. In December 1994,
the Open-ended Ad Hoc Committee for the Implementation of the Basel Convention, in
Committee Decision II/3 on the Evaluation of the Effectiveness of the Convention, requested
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RUMMEL-BULSKA, IWONA 423
the Secretariat of the Basel Convention to arrange for a "study on the monitoring of the
implementation of and compliance with the obligations set out by the Basel Convention and
any other related matters."
The provisions of the Basel Convention do not expressly envisage the establishment
of a special "implementation/compliance control" procedure. Yet, several of its articles
address aspects of multilateral implementation and compliance control. Article 19 states
that "Any party which has reason to believe that another Party is acting or has acted in breach
of its obligations under this Convention, may inform the Secretariat thereof, and in such an
event, shall simultaneously and immediately inform, directly or through the Secretariat, the
Party against whom the allegations are made. All relevant information should be submitted
by the Secretariat to the Parties." There is no clear statement in the Convention what would
be then the role of the Contracting Parties in such cases. Article 5 requires the Parties to
establish competent authorities and focal points to facilitate implementation of the
Convention; Article 13 commits the parties to provide annual reports to the Conference of
the Parties on matters bearing directly on transparency with regard to transboundary
movements and disposal of hazardous wastes. Article 16 calls upon the Secretariat to
perform a number of functions relevant to monitoring of implementation and compliance, such
as to act as a clearing-house for information on hazardous waste movements and disposal,
to expedite the flow of information among parties, and to assist parties in identifying cases
of illegal traffic of waste.
There are some important implementation/compliance control functions entrusted
to the Secretariat by the Convention itself and the various decisions of the Conference of the
Parties. The Basel Convention, however, allocates only a facilitating role to the Secretariat
as regards compliance control. Since the Convention entered into force, a number of
initiatives have been under review or been approved by the Conference of the Parties that aim
at further enhancing transparency with regard to transboundary movements of hazardous
wastes globally, such as the streamlining of notification and movement documents, the
general strengthening of the transmission of information pursuant to Article 13, and
improvement of the information management system of the Convention. Taken together these
provisions do not, however, amount to more than a rudimentary international system of
compliance control. Specifically, they fall short of establishing the requisite setting for the
second phase of compliance control, namely to the review of the information transmitted by
the Parties and to an institutionalized process of verification. That is why, as referred above,
in response to the adoption by the COPY of Decision 11/12, it was noted that "[ejffective
implementation of the whole Convention could only be assured with the introduction of an
effective system for the monitoring and evaluation of compliance by the Parties with the
Conventions as the provisions at present contained in Article 19 were not sufficient."
(Australian proposal).
In recognizing the need for improved implementation/compliance control, the First
Meeting of the Conference of the Parties in 1992 established the Open-ended Ad Hoc
Committee as a mechanism necessary for the implementation of the Basel Convention. This
Open-ended Ad Hoc Committee has been entrusted with a variety of tasks, all relevant to
implementation of or compliance with the Basel Convention. The further need for
strengthening the system became obvious in particular after adoption of the Ban Decision
(11/12) in March 1994. The Open-ended Ad Hoc Committee executes several different tasks:
in respect of some acts as an executive body, of others in a basic advisory or policy-making
body. Because the Committee is involved in a broad range of activities, it not likely to develop
the required technical expertise to verify the data submitted by the parties, as well as to
evaluate performance of the Parties in relation to their obligations under the Convention.
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On this basis it was proposed to the 3rd Conference of the Parties (September 1995)
to establish under the Basel Convention a system to strengthen compliance with its
provisions by establishing in the future a special Compliance Committee based mainly on
the Montreal Protocol example. The Conference referring again to Article 19 of the Convention
on Verification requested the Consultative Sub-group of Legal and Technical Experts to study
all issues related to the Convention and its design, and to report its findings to the fourth
meeting of the Conference of the Parties to the Basel Convention.
Related to the present regime existing under the Basel Convention provides for a
significantly strengthened reporting system. Such a system constitutes one of several
aspects of a monitoring of implementation and compliance regime, which, to be fully effective
would need an institutional framework having the required technical expertise to match the
technical complexity of the Basel regime in order to carry it out impartially and objectively.
Recent refinement of some technical provisions of the Basel Convention carried out
by the Technical Working Group of the Convention and adopted by the Fourth Conference
of the Parties in Kuching on February 1998 makes it evident that the assessment and
evaluation of information reported by State Parties as evidence of compliance with their
obligations under the Convention would require a significant degree of technical know-how
on the part of those carrying out this monitoring and review functioning. In addition, the more
the legal system of the Convention is tightened, the need is greater of a strict institutionalized
system along lines similar to the existing non-compliance system established as part of the
Montreal Protocol on Substances that Deplete the Ozone Layer. This system should only
serve as an example and has to be modified in order to take the specificities of the Basel
Convention into account.
What seems to be of special importance in a possible future system of non-
compliance under the Basel Convention is the membership in the Implementation
Committee, in particular the role of NGOs, transparency and access to its proceedings. This
is linked to a certain extent, at least in relation to the Basel Convention, to the right to initiate
action concerning an alleged violation of the agreement.
It has happened within the Basel Convention that an alleged violation of the treaty
was brought to the attention of the Secretariat by another body than the injured state or
another party to the treaty, namely by a NGO (Greenpeace) led to an amicable solution to
the problem. No environmental treaty, however, gives a right to NGOs nor to individuals to
initiate proceedings against a Party. In practical terms, however, it could sometimes be easier
for another body than the Contracting Party to react to another Party's breach of a treaty
obligation. Formalization of such an approach which exists to a certain extent in practice,
could somehow not be easy nor welcomed by some of the Parties who consider themselves
the only "sovereign owners" of the treaty. Individual complaints, as it exists in various human
rights' treaties, may play an important role, as it does in the European Community through
claims in national courts on the provisions of a multilateral environmental agreement, provided
that the agreement is part of EC law (Textbook on EEC Law, 1998, p.31).
This right is limited to the cases in which individuals suffered damages. As far as
NGOs are concerned the Basel as well as the Montreal treaties admit NGOs to participate
at their meetings as observers, sometimes very active observers. This does not, however,
give them the formal right to initiate action against a member State in breach of a treaty in
question. They can, however, and sometimes they do, trigger the initiation of action through
the Secretartiat or another Party, by bringing "the case" to the light and "advertising" it to the
public. It could, however, be difficult to allow NGOs or/and individuals and other groups to
attend the closed meetings of implementation bodies.
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RUMMEL-BllLSKA, (WONA 425
As for the composition of implementation bodies/committees it was the clear
understanding at the time of discussion at the meetings under the Basel Convention that
there is a clear preference for these bodies to be composed of the Contracting Parties rather
than individuals. While the Montreal Protocol Implementation Committee has a very limited
membership (10 countries), the Climate Change Convention's Subsidiary Body for
Implementation is open to participation by all Parties (Article 10), as well as is the Open-
ended Committee for Implementation of the Basel Convention which was not exactly meant
as a compliance body, but which was originally established to perform some of the functions
of the compliance body (i.e. its role in assessing the conformity of all the bilateral and
multilateral agreements or arrangements with the stipulation of Article 11 of the Convention).
It should be remembered that the effectiveness of a body is usually inversely
proportional to its size; a smaller body is usually more effective than a committee with
unlimited memberships. It seems, however, that in the case of the Basel Convention the
larger body approach prevails among Parties as a guarantee of reflection of various countries'
interests. It should be emphasized, however, that a large number of members can lead to
unnecessary politicalization of the implementation body which is already the case with some
meetings under the Basel Convention. Also unlike the Montreal Protocol, the subject of the
Basel Convention's possible breaches affects usually two or three countries rather than
protecting a global commons which is the case of the ozone layer treaty.
In the case of the Basel Convention breaches of compliance would in practice lead
to the assessable appearance of a damage. This could, therefore, lead to possible liability
claims. Therefore, in the study related to the Basel Convention's compliance system, clear
reference was made to the need to link it with the liability and compensation regime being
developed under the Basel Convention. In the Basel Convention it would also probably be
easier to link the compliance regime with the settlement of disputes regime which in the case
of Montreal exists as two independent - but not mutually exclusive - systems. In relation
to Basel the dispute settlement could be developed rather as "the second tear" approach
to be triggered after the exhaustion of the compliance procedure.
4 THE POSITION OF PARTIES TO THE BASEL CONVENTION
As referred to above the Consultative Sub-group of Legal and Technical experts
requested the Secretariat of the Basel Convention to "invite Parties and Signatories to provide
in 1996 information on what steps Parties and Signatories are taking to implement the
provisions of the Basel Convention, difficulties which States could be facing when seeking
compliance with the provisions of the Basel Convention, and, in particular, how States deal
with illegal traffic, and how they comply with Articles para. 4 and 6 of the Convention, and
areas in which Parties may require assistance or benefit from the sharing of national
experiences."
As requested by the Consultative Sub-group, the Secretariat drew up a
questionnaire, which was circulated to all Parties and observer states by letter in October
1997. The questionnaire encountered considerable feedback: In total. About 50 responses
were received.
The questionnaires provided useful documentation and a basic national profile for
each of the replying countries. Furthermore, the standardization of the questionnaires
allowed a statistical evaluation of the replies.
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4.1 Transposition into national law
In almost two thirds of the Parties there is currently national legislation on the control
of transboundary movements and the environmentally sound management of hazardous
wastes in force. Several countries have enacted complete new national legislation
implementing the Basel Convention, in some countries the previously existing legislation has
been adapted in order to implement the Basel Convention, and in some other countries the
previously existing legislation has remained in force unchanged since the ratification of or
accession to the Basel Convention.
With regard to the modalities of adoption of national legislation, several Parties
adopted their legislation implementing the Basel Convention as one main legislative tool.
Others adopted it as a separate section in the main environmental legislative instrument
(e.g., Environmental Protection Act), whereas some countries enacted their legislation as
a series of sectoral laws (e.g., control of transboundary movements, waste streams,
environmentally sound management). Few Parties adopted the legislation implementing the
Basel Convention as a section within their general waste law.
In contrast to this, in over one third of the countries there is currently no national
legislation implementing the Basel Convention in force. In most of the countries which do
not yet have such legislation in force, relevant laws are currently under preparation, in a few
others the process of preparation of such legislation has not yet been initiated.
4.2 Institutions, Administration, Budget
The overwhelming majority of the Parties set up or designated a Competent Authority
and Focal Point. In a few countries the Competent Authority and the Focal Point have not
yet been designated.
Most of the countries designated one single Competent Authority, few others
established two or more Competent Authorities.
A majority of the Parties set up the necessary administrative instructions and
procedures for these authorities to operate. In several other countries the situation is
inadequate and in a few no such instructions or procedures were established. With regard
to the provision of staff and resources for the authorities, the situation is problematic: in a
majority of countries staff and resources are insufficient. In several countries the required
staff and resources were provided, in few this is not at all the case.
Furthermore, only in some countries is there an adequate administrative system and
the infrastructure for the safe management (collection, sorting, transport, recycling, recovery,
disposal) of different hazardouse waste streams. In several parties the situation with regard
to the administrative and infrastructure capacity for hazardous waste management is
inadequate, and in several others such a capacity does not exist.
4.3 Enforcement
In a large number of Parties the situation with regard to the enforcement of national
laws is still insufficient. Whereas in several countries a national mechanism for the
monitoring and control of full and proper compliance with laws on hazardous waste is fully
established and operating, in some countries such enforcement of hazardous waste
legislation is practically non-existent.
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RllMMEL-BULSKA, IWONA 427
In a majority of countries adequate sanctions and penalties are imposed in the case
of contraventions, in several others the situation is insufficient and in a few there is no capacity
for this aspect of enforcement. With regard to the licensing of hazardous waste management
operations, in several countries such a system is set up, but in several others is inadequate
or not available at all.
In several Parties a mechanism has been set up for consultation and co-operation
with industry and other NGOs as well as for the information of the public. In many countries
public participation is still insufficient, in some others the principles of public participation
have not yet been institutionalized.
5 DIFFICULTIES OF IMPLEMENTATION AND COMPLIANCE
5.1 Transposition into National Law
A majority of those Parties which have enacted a national legislation reported that
their legislation is responding partly to the Basel Convention, but that gaps can exist. Several
Parties confirmed that their national legislation is responding entirely to the provisions of the
Basel Convention. Few countries consider their national legislation being in conflict with the
Basel Convention.
The main difficulty in developing/improving/adapting national legislation is the lack
of resources, followed by the lack of expertise. Several countries are concerned about the
lack of awareness or insufficient international/regional cooperation. Few countries also
reported the lack of a national policy as being an obstacle.
5.2 Institutions, Administration, Budget
The main problems presented in setting up and operating the Competent Authority
and the Focal Point are the lack of resources, training, staff and expertise. In several
countries the lack of awareness is also problematic, some countries reported a lack of
regional/international cooperation in general.
While setting up or operating an adequate administrative system as well as the
infrastructure for the safe collection, sorting, transport, recycling, recovery, disposal of
different hazardous waste streams, the main difficulties encountered were the lack of
resources, expertise, staff and awareness. Other problems encountered are the lack of inter-
agency consultation and lack of regional/international co-operation. Also reported were the
lack of standards and tracking systems, and lack of legislation and guidelines.
5.3 Enforcement
On the level of enforcement, the main problems of implementation are the lack of
financial resources, lack of training for enforcement personnel and the lack of staff. Equally
important are the lack of testing and sampling facilities and problems with the identification
of hazardous wastes. Many countries reported the lack of inspections and of awareness
of stakeholders.
Furthermore, several Parties have problems with border control or suffer lack of
interagency consultation, lack of a licensing system for hazardous waste facilities, of public
participation, of sufficient sanctions and penalties and of effective regional cooperation. Also
reported was the lack of domestic standards and tracking systems.
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6 PREVENTION OF ILLEGALTRAFFIC
6.1 Legislation
A large number of Parties have in force stringent legislation on the repression and
prevention of illegal traffic. In several countries such legislation is considered to be
insufficient. Some other countries do not yet possess such legislation.
Most of the countries consider illegal traffic in hazardous waste being a criminal
offense. In several countries such a provision is still missing.
6.2 Institutions, Administration, Budget
Several countries have established adequate procedures for sending back illegal
shipments. In several other Parties such procedures would be insufficient or in some
countries even missing.
In many countries the interministerial coordination in preventing and combatting
illegal traffic is still insufficient. Several other countries have established sufficient
interministerial coordination, whereas in some countries there is no effective coordination.
6.3 Enforcement
The most important measure applied by Parties in order to prevent and combat illegal
traffic is border control, followed by transport control and the infliction of sanctions and
penalties in the case of contravention. Many countries also undertook site inspections.
Several countries proceed with testing and sampling or by licensing of installations
and the withdrawal of licenses in the case of contravention. In some countries adequate
information systems have been set up.
6.4 . Main obstacles in Preventing and Combatting Illegal Traffic
The main obstacles encountered in the prevention of illegal traffic are the lack of
training and of facilities for testing and sampling, followed by lack of resources, the lack of
information, the lack of staff and of inspections or transport control. Also important are
problems of border control and the lack of awareness.
Furthermore, several countries deplore lack of legislation, administrative problems.
Lack of inter-institutional and regional or international co-operation or a system of licensing/
withdrawal of licenses. In some countries enforcement is insufficient.
A majority of Parties has already experienced and recorded cases of illegal traffic
in hazardous wastes. In several other countries no cases of illegal traffic were recorded.
Some countries submitted no information.
7 TRANSBOUNDARY MOVEMENTS BETWEEN PARTIES
7.1 Legislation
In a majority of Parties there is a national legislation in force implementing the written
notification and consent procedure of the Basel convention. Nevertheless, in some countries
such legislation is considered insufficient and in several non-existent.
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RUMMEL-BULSKA, (WONA 429
7.2. Institutions, Administration, Budget
Many parties have set up adequate administrative instructions for the Competent
Authority for the operating of the control procedure. In several other countries such
administrative instructions are insufficient, in some they are missing.
A majority of Parties confirmed using the recommended Basel Convention
notification/movement document (or the similar EC/OECD forms) by the Competent Authority.
In some countries the forms are not used on a regular basis or not at all.
Several Parties have established a system of coverage of transboundary movements
of hazardous wastes by insurance, bond or guarantee. In some countries such a system
is inadequate, in several other countries there is no such system.
7.3 Enforcement
By far the most frequent measure which is applied in order to enforce the written
notification and consent procedure is border control. Several countries undertook site
inspections and transport controls. Several Parties also apply testing and sampling or have
set up adequate information systems. Few countries reported that there are no enforcement
measure applied at all.
7.4 Main Obstacles
The main obstacles encountered in implementing the control procedure are lack of
resources, lack of training, lack of facilities for testing and sampling, lack of inspections or
transport control, lack of staff and lack of legislation. Less important are administrative
problems, lack of border control, lack of inter-institutional co-operation and lack of regional
and international cooperation.
8 CONCLUSION
In conclusion, a clear picture emerges that much needs to be done to improve
compliance with and enforcement of the terms of the Basel Convention.
8.1 Steps taken by Parties to implement the Basel Convention
Almost two thirds of the Parties have enacted a national legislation on the control
of transboundary movements and management of hazardous wastes. In most of the
countries which do not yet have such a legislation the preparation is under way. Furthermore,
the overwhelming majority of countries has designated (a) Competent Authority(ies) and a
Focal Point and in most cases the necessary administrative procedures have been
established. Nevertheless, in a majority of countries these institutions are still lacking the
necessary staff and resources. Only in some countries there are in a place adequate
administrative systems and the infrastructure for the safe management (collection, sorting,
transport, recycling, recovery, disposal) of different hazardous waste streams. In several
countries the situation is inadequate, in several others such capacity does not exist.
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430 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
8.2 Difficulties faced by Parties when seeking compliance with the Basel
Convention
A majority of Parties consider that their national legislation is responding partly to
the Basel Convention, but gaps still exist. The main difficulties in developing/improving/
adapting national legislation are the lack of resources and the lack of expertise. The main
problems in setting up and operating the Competent Authority(ies) and the Focal Point are
the lack of resources, training, staff and expertise. The main difficulties encountered in
establishment of an administrative system and the infrastructure for management of
hazardous waste are lack of resources, of expertise, of training for personnel, of staff and
lack of public awareness. Furthermore, in more than 50% of Parties the enforcement system
of the national laws is not adequate, in some others such a system is practically non-
existent. In many countries there is a lack of consultation and co-operation with industry
and other NGOs as well as lack of information on these issues as well as inadequate public
awareness and information dissemination. On the level of enforcement, the main problems
of implementation are the lack of financial resources, of training of personnel to deal with
enforcement, the lack of staff, the lack of testing and sampling facilities and problems-with
the identification of hazardous waste.
8.3 Prevention of illegal traffic
In more than 50% of the Parties replying to the questionnaire the legislation on the
prevention and punishment of illegal traffic is inadequate or missing. Nevertheless, more than
two thirds of the Parties consider illegal traffic to be a criminal offense. Furthermore, in a
majority of Parties procedures for returning illegal shipments are inadequate or missing. In
more than half of the Parties also interministerial coordination in preventing and combatting
illegal traffic is insufficient or non-existent. The most frequent enforcement measures applied
to prevent and combat illegal traffic are the border control, transport control and infliction of
sanctions in case of contravention. The main obstacles encountered in the prevention of
illegal traffic are the lack of training as well as the lack of facilities for testing and sampling.
Also important are the lack of resources, the lack of information, lack of staff and lack of
inspections or transport control. A majority of Parties replying to the questionnaire recorded
cases of illegal traffic in hazardous wastes.
8.4 Compliance with Article 6 ("Transboundary Movements between Parties") of the
Basel Convention
In a majority of Parties there is national legislation in force implementing the written
notification and consent procedure of the Basel Convention. Furthermore, a majority of
Parties uses the recommended notification/movement documents. Many Parties have also
set up administrative instructions for the operating of the control procedure. Nevertheless,
many countries have not yet established a system of coverage of transboundary movements
of hazardous wastes by insurance, bond or financial guarantees, and in some others such
a system is inadequate. Less than half of the Parties have an adequate system in place.
The main obstacles encountered in implementing the control procedure for transboundary
movements between Parties are the lack of resources, the lack of training, the lack of facilities
for testing and sampling, the lack of inspections or transport control, lack of staff and lack
legislation.
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RUMMEL-BULSKA, )WONA 431
8.5 Assistance and Cooperation
Parties replying to the questionnaire indicated areas in which assistance would be
required or where authorities may benefit from the sharing of national experiences as follows:
Need for further development and updating of national legislation.
Facilities for testing and sampling.
Hazard characterization and hazardous waste identification.
Training of personnel dealing with hazardous waste (custom officers, managers,
environmental inspectors, police officers, etc.)
Establishing enforcement procedures and procedures and programmes.
Developing of a monitoring system.
Developing technical standards in the field of environmentally sound
management.
Transfer of appropriate technologies for minimization of generation of HW and
for their disposal in an environmentally sound way.
The fourth meeting of the Conference of the Parties to the Basel Convention (Kuching,
23-27 February 1998) adopted Decisions IV/21 entitled "Monitoring the implementation of
and compliance with the obligations set out by the Basel Convention." By this decision, the
Conference of the Parties requested the Consultative Sub-group "to continue its step-by-step
approach to examining the relevant issues related to the establishment of a mechanism or
procedure for monitoring implementation of and compliance with the Basel Convention with
a view to recommending, as soon as practicable, the best way to promote full implementation
of the provisions of the Basel Convention, including whether or not such a mechanism or
procedure would be required and, to the extent appropriate, what its design might be."
In this context, the relationship of this system with the issue of settlement of
disputes was noted, in the sense that compliance will avoid disputes. Reference was also
made to the relationship of compliance with the determination of which wastes are subject
to the Basel Convention. The role of the World Customs Organization in the effective
implementation of the Convention, by providing a clear nomenclature for wastes, was
underlined. The Sub-group took note of the draft elements and principles for a future regime
on monitoring of implementation and compliance, submitted by an informal group chaired
by Switzerland, attached to this report as Annex 1. The Sub-group agreed that these
elements and principles should serve as a basis for further discussions. Accordingly, the
Sub-group decided that Parties should be invited to provide the following to the Secretariat:
Proposals for the nature and composition of the future regime, based on the
options presented by the informal group.
Draft elements of terms of reference for the future regime.
The Secretariat was requested to prepare a compilation of the submissions received,
in time for the meetings scheduled to be held in 1999.
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432 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP 5B: COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS 433
WORKSHOP 5B
COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL
AGREEMENTS: FOCUSING ON MONTREAL PROTOCOL
AND CITES: ILLEGAL SHIPMENTS OF CFC AND OTHER
OZONE DEPLETING SUBSTANCES AND ILLEGAL
TRADE IN ENDANGERED SPECIES
Nations of the world have "thought globally" and now are needing to "act locally" to meet the
goals of international environmental agreements on such important issues as protection of
the ozone layer, endangered species and other vital concerns. This workshop focused on
those agreements which pose a compliance challenge in trying to stem the tide and illegal
trade of valuable product whose potential for environmental harm is not felt locally and is
therefore more difficult to deter. This topic has been addressed at previous international
conferences, has been monitored by the Montreal Protocol Secretariat within UNEP and
specifically reviewed in a consultation of enforcement officials commissioned by the G-8
environment leaders. The INECE partnership wished to make progress at this Fifth
International Conference workshop by defining specific measures that enforcement officials
around the globe believe are needed to create a more effective deterrent.
2. Summary of Workshop Discussion, Facilitators: M. Alushin, D. Zaelke;
Rapporteurs: G. Ginsberg, C. Jorge 435
3. Mongolia's Experience in Implementation of the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, Batsukh, Bolormaa 443
4. The Implementation of Biodiversity Convention in China, Li, Xiaohua 449
5. Compliance with the Montreal Protocol in China: An Investigation in Two
Industrial Sectors, Zhao, Jimin and Ortolano, Leonard 463
Paper 1 for Workshop 5B and a list of related papers from other International Workshops
and Conference Proceedings are in Volume 1
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434 FiFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 5B COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS 435
SUMMARY OF WORKSHOP: COMPLIANCE WITH INTERNATIONAL
ENVIRONMENTAL AGREEMENTS
Facilitators: Workshop SB: Michael Alushin
Workshop 5BB: DurwoodZaelke
Rapporteurs: Workshop 5B: Gail Ginsberg
Workshop 5BB: ChristieJorge
GOALS
Discussions were designed to address the following issues:
The goals of Chlorofluorohydrocarbon (CFC) reduction along with other ozone
depleting substances and particular challenges control and reduction of CFCs
in the marketplace pose to enforcement programs given the nature of the
market and regulated community.
• Types of programs countries have adopted to enforce CFCs in the marketplace,
successes and failures, design of requirements to ensure enforceability,
promotion of compliance, compliance monitoring and inspection activities,
enforcement response, and levels of government involvement including
licensing of facilities and control and tracking of production, reuse, sale and
disposal.
• Review of other existing international environmental agreements and their
implications for domestic and international enforcement
Experiences in enforcement of international environmental agreements,
successes and failures
Ways violators are circumventing provisions of the Ocean Dumping, CITES
conventions and or other such agreements and how violators are being
detected.
The experience of enforcement personnel in the information that is needed to
identify such violators and what level of cooperation and information sharing
is needed between and among national enforcement organizations to satisfy
current needs for effective enforcement
• The need for formal and informal lines of communication about what to whom
among law enforcement personnel, customs officials, environmental managers
and environmental enforcers domestically and internationally.
Informal recommendations for initiatives to fill gaps, identifying the institutions
and actions needed.
1 INTRODUCTION
Participants represented nations with a range of experiences in enforcement of
international agreements. Some countries had signed a few such agreements; some had
signed virtually all. There is substantial commitment to the need for such agreements, but
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436 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
a recognition of the need for strong political support within a country both for compliance by
the country and for enforcement against others. NGOs want to be a part of the enforcement
picture, but citizen participation is not always directly recognized in international agreements.
Participants centered their discussions on five themes that were determined priority
issues in the implementation, and enforcement of international agreements, both at the
national and international level. These are:
• How to achieve communication for effective compliance and enforcement at
the national level.
What different legislative and practical approaches to enforcement for range
of violations have been effectively used, and types of enforcement responses.
What financial resources are required for consistent enforcement and capacity
building, and available sources of financial assistance.
What are the obstacles to international cooperation presented by disparities
among sanctions for same violations.
How to raise broad awareness of the importance of issues addressed in
Conventions and overcome the differences in perception at international and
local level.
2 PAPERS
Papers related to this workshop include:
Enforcement of International Environmental Agreements, e.g., Hazardous
Waste and Ozone Depleting Substances, K. Boekel
3 DISCUSSION SUMMARY: WORKSHOP 5B
3.1 How to better implement international agreements; what assistance is needed.
Participants identified a number of obstacles to effective implementation and
enforcement of international agreements, including:
3.1.1 In-country Issues
There is a need for enactment of clear, enforceable domestic laws to implement
international agreements which countries have signed, e.g. the Basel
Convention and the Bamako Supplement. Lack of clarity in language of
international agreements may also be a problem. It may be beneficial to write
compliance and enforcement mechanisms directly into international
' agreements.
• Agreements are signed at a national level, but must be implemented at
provincial levels, resulting in a major disconnect. There is a need to strengthen
interaction between national, regional, and local organizations.
Developing countries focus on enacting, rather than enforcing, new legislation
to implement international agreements. Also, the capacity of developing
countries to comply with and enforce international agreements is frequently
in conflict with other developing country priorities.
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WORKSHOP SUMMARY: 5B COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS 437
There is a need for assistance in characterization of hazardous waste.
Some countries feel that their governments commit to international
agreements and come home and do the opposite. There is a need for support
for international agreements at the political level, rather than just signing
agreements and then ignoring them.
• People with compliance information in environmental agencies do not
communicate with international enforcers.
Government agencies need training on implementation and enforcement
aspects of international agreements at staff level.
3.1.2 Multinational Issues
There is a need for consistent interpretations of texts of international
agreements and to develop guidelines for implementation.
There is a need for cooperation between and among countries; some countries
will try to interpret conventions to serve their national interests or will try to use
agreements to serve their own economic interests.
• Failure of some countries to ratify international conventions presents a problem
for those countries which are signatories, particularly where smaller countries
are signatories and larger, more powerful nations are not.
3.1.3 NGO Status Issues
There is a need for a network of citizens within countries to build political
support for international agreements. Citizen support for adoption of legislation
to implement international agreements by legislatures can be a powerful
incentive.
Direct citizen enforcement provisions should be written into international
agreements. Where citizen enforcement provisions are not written into
conventions, try to be creative and develop ad hoc mechanisms (e.g., file a
petition).
National interests may be in conflict with international agreements; early public
involvement is needed to help reconcile these conflicts.
3.2 Market conditions influencing imports of hazardous wastes
Since endorsement of the Basel Convention, some countries (e.g.,Sri Lanka) have
experienced more efforts to import hazardous wastes into the country. It is not clear to what
extent this experience is shared by other countries. Could this experience be a
consequence of increased monitoring? Some countries prefer to deal with problems of
hazardous waste disposal within their own boundaries, although they may be signatories
to agreements which permit exports. Stronger enforcement efforts in some countries puts
pressure on countries with weaker enforcement to accept hazardous wastes. Conversely,
countries with poor enforcement records tend to shift the burden to more conscientious
countries.
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438 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3.3 CFC Enforcement - Successes and Failures
The convention on regulation of CFCs is regarded as one of the most successful
international agreements. Implementation of this agreement has been helped by financial
assistance and the availability of technology transfer (e.g., substitute technologies). Another
reason for the success of this convention is that big countries do not want to be perceived
as environmental criminals.
A problem with implementation is dealing with CFCs that are already in the system.
Many small operators face this challenge and are also confronted with complex procedures
for compliance. Substitute technologies are not always available to small operators.
The fact that different countries are on different schedules for CFC phase-out can
produce black market conditions. In order to avoid this result, it is necessary to promote
cooperation among government agencies and at various levels of government. Options to
achieve this result include task forces, international networks, and collaborative enforcement.
3.4 Other Successes and Failures
3.4.1 Prior Informed Consent (PIC) Convention
Gambia described successful use of this convention to interdict imports of DDT-
impregnated mosquito coils. Success occurred on a voluntary level, even before the
convention was signed.
3.4.2 Convention on International Traffic in Endangered Species (CITES)
Venezuela reported a positive experience using the CITES convention to remedy
illegal import of birds for development of a bird sanctuary. However, several participants
reported experiences with inability to care for animals seized pursuant to CITES. Another
issue is inconsistent experience with elephants, which cannot be captured for the ivory in
their tusks. Since the effectiveness of this prohibition on capturing elephants for their ivory
tusks, elephant populations have increased in some countries and decreased in others.
There could, of course, be other issues associated with this phenomenon. The CITES
convention does have strong citizen participation provisions.
3.4.3 Bamakeo Supplement
African nations were pleased with the ability to prevent imports of nuclear and other
wastes, using this instrument.
3.4.4 Other Issues
International agreements, like other regulatory mechanisms, must reasonable
in order to be enforceable.
• There is a sense that some countries join international agreements as a means
of obtaining resources, but are not committed to implementation. However,
it is also recognized that countries may join such agreements to start solving
a problem, even if they are unable to meet all the requirements of the
agreement. They do need resources to participate.
3.5 Circumvention of International Agreements
Some methods that have been used to circumvent international agreements
include:
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WORKSHOP SUMMARY: 5B COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS 439
• • mislabeling (e.g., CFCs);
• sham recycling;
transshipments;
• falsely claiming waste is raw material;
ivory and turtle eggs in diplomatic pouches;
mixing waste with fuels;
using claims of confidential business information to hide information; and
load waste drums in a truck and then fill in with legitimate product.
3.6 Conclusion
Implementation and enforcement of international agreements is a matter of concern
to many countries. However, there are numerous implementation problems, not the least
of which is the failure of countries which sign international agreements to enact implementing
domestic legislation. Countries should consider direct enforcement of treaties, as a part of
their national law. Also, when countries plan and publicize environmental enforcement
strategies, they should consider inclusion of their commitments under international
agreements. There is a distinct issue for developing countries, which desire to implement
international agreements, but which are faced with competing priorities within their countries.
NGO's also face particular challenges in enforcing agreements, where there is no specific
provision for citizen suits; they are developing creative approaches to facilitate their
participation.
4 DISCUSSION SUMMARY: WORKSHOP 5BB
The group discussed and highlighted the following issues, please note some are
general comments and recommendations and others are specific country cases:
4.1 How to Achieve Communication for Effective Compliance and Enforcement at the
National Level
In country communication is vital and the Conventions should be implemented
as soon as possible as well as issuing national implementing legislation and
regulations.
Country should assess its needs, priorities within the Convention and reduce
the scope for actions to those implementable. The Environment agency should
lead this needs analysis.
Combine the different obligations and responsibilities under the Convention to
simplify and work around the articles of other conventions (work on overlap,
conflicts, etc.).
While negotiating the text of the Convention, inform other agencies to build
"buy-in."
Before Convention signature, identify the person that will implement and enforce
and send that person to sign so he/she can be responsible throughout the entire
process.
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440 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Timeframes for meeting obligations national level.
Complexities of "international or diplomatic" language used in Conventions and
need to identify national "equivalents" not just conduct a translation.
Keep and disseminate the negotiating history and the positions to give insight
of intent to comply
Define additional terms within the Convention and through the translation
United Nations only translates into 6 official languages and there is a need for
additional and correct translation.
4.2 What Different Legislative and Practical Approaches to Enforcement for Range of
Violations Have Been Effectively Used and Types of Enforcement Responses
Dominican Republic: NGOs can offer pro bono assistance to legislators and
drafters to understand international conventions.
Nepal: Informed GOs, NGOs, IGOs and others assist the Congressional
Committee on Natural Resources.
Uganda: Promotes in site visits for legislators and create awareness of
issues the law would address, it also promotes partnerships.
Ghana: It is government policy to take the judges in the field to visit sites and
build awareness.
4.3 How to Raise Broad Awareness of the Importance of Issues Addressed in
Conventions and Overcome the Differences in Perception at the International and
Local Levels
Who should be trained:
- Legislators
- Customs officials
- Judiciary .
- Law enforcement
- Inspectors
- Civil society in general (NGOs, industry, etc.)
How should they be trained:
- Nepal: The judiciary (High Court) was trained with financing from IUCN
Bonn.
- SACEP: Judges have to be sensitized rather than trained a program was
developed through UNEP and Norway.
- India: Courses for judges should be short, focused and closed to the
general public.
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WORKSHOP SUMMARY: SB COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS 44 T
4.4 How to Raise Broad Awareness of the Importance of Issues Addressed in
Conventions and Overcome the Differences in Perception at the International and
Local Levels
Nepal: Street theater is used to bring awareness of pressing environmental
issues using drama with financial assistance from IUCN.
• British Columbia, Canada: Black bears cause much damage but are
protected under CITES in Canada and the agency teaches people how they
can benefit from protecting them. They use pamphlets, information on "how
to protect yourself and your property," use media and the municipal government
assists in developing materials.
Ghana: The national government conducts education programs on the benefit
of including public participation at the local level.
India: The government uses movie clips in theaters to promote awareness
and also promote the rights of flora and fauna to appeal to tree huggers.
Cambodia: Finds it difficult to sell the idea to the poor of protecting the
environment because of the practice of hunting wildlife, even if threatened or
endangered to sell for food.
British Columbia, Canada: Canadian experience suggests that the way to
deal with poverty vs. conservation is to remove the economic value of the
wildlife by addressing the "market" with high penalties and covert operations.
Sri Lanka: The government gets to a basic level by teaching school children
value of protecting the environment.
4.5 What are the Obstacles to International Cooperation Presented by Disparities
Among Sanctions for the Same Violations
British Columbia, Canada: For small items (bear blatters) covert operations
are used by employing inspectors and placing them in industry.
Kenya: The economic benefits are taken away by placing fees into a special
program or fund to preserve the environment. The government promotes this
mechanism in other countries.
4.6 What Financial Resources are Required for Consistent Enforcement and
Capacity Building and Available Sources of Financial Assistance
Nigeria: International Conventions ratified are self-financing (for e.g. Basel
and CITES) and importers pay through fees forthe inspection, analysis, CITES
permit and a percentage of the cargo's cost. There is also a "self-reporting"
element. The fines support the costs of the implementing and enforcement
agency. For example there is a special fund for marine pollution and it does
not go into the general national budget.
USA, New Jersey: The agency earmarks money collected by fines for a
special NGO fund that supports environmental work. It is managed by NGOs.
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• Israel: NGOs do not accept money from industry or government for fear it will
be pressured and will not allow them to maintain independence.
• Guatemala: International financial institutions such as the World Bank have
used their own policies to assist in creating and leaving behind a fund or other
mechanism to protect the environment during and after investment projects
have been completed.
4.7 Conclusion
The groups gave examples of in-country obstacles, and mechanisms to achieve
resolution - mentioning specific legislative and enforcement tools. The session served as
a valuable comparative review, and provided participants and facilitator a rich spectrum of
compliance and enforcement tools, including training of trainers, building institutional memory,
and simplifying the "language" of the Conventions.
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BATSUKH, BOLORMAA 443
MONGOLIA'S EXPERIENCE IN IMPLEMENTATION OF THE
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
OF WILD FAUNA AND FLORA
BATSUKH, BOLORMAA
Officer, Department of International Cooperation, Ministry for Nature and Environment
Mongolia, Government Building No3, BagaToiruu 44, Ulaanbaatar 11, Mongolia
SUMMARY
The law on ratification of the Convention on International Trade in Endangered
Species of Wild Fauna Flora (CITES) was adopted on 1 May 1995 by the Great Hural of
Mongolia. Since 4 April 1996 Mongolia became the 133rd Party to the Convention. Mongolia's
Government and people understand that as a signatory of the Convention we will not only
rescue regional and global biodiversity from loss but also save the very rare species that are
left in Mongolia's territory by following strictly provisions of the Convention.
External relations by Mongolia are expanding and for the last five years the
Government has started to provide a policy to utilize natural resources within their
rehabilitating ability and to develop export trade with foreign countries. This action is
increasing the number of countries interested in trade in wildlife specimens with Mongolia.
Therefore Mongolia joined the CITES to protect its rare and endemic animal and plant species.
We are proud with such rare species as the Przewalskii horse, Bactrian camel, Gobi bear,
Snow leopard, Musk dear, Wild mountain ship (Ovis ammon), Beaver, Saiga and Antelope
live in the wild in the vast territory of Mongolia.
1 NATIONAL LEGISLATION ON BIODIVERSITY CONSERVATION
According to studies Mongolia has 665 species of fauna and 5775 species of flora.
Mongolian game hunting resources consist of 56 species of mammals, 132 species of birds
and 35 species offish. Mongolia has many useful plants such as 845 species of medical
use, 173 species for human nutrition, 64 species of industrial use, 849 species of ornamental
plants, as well.
Relations concerning the conservation, use, revitalization of and trade in wildlife and
natural plant as well as fauna-and-flora- originated raw materials are basically regulated under
the Hunting law and Natural plant law adopted by the Great Hural of Mongolia in 1995.
According to these laws, species are classified into:
1. Very rare
2. Rare
3. Abundant
The list of the very rare species was adopted by the Parliament of Mongolia, while
the Government of Mongolia issued the list of rare species. Other species apart from those
two lists were considered as abundant.
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Seven species of very rare, two of rare, five of abundant are referred to in Appendix
1 of CITES and four species of very rare, six species of rare, forty-seven species of abundant
are identified in Appendix 2 of CITES. Therefore 71 species of Mongolian wild animals in
total are included. As of plants, a total of 23 species of Orchidae including 10 species of
very rare, one species of rare and twelve species of abundant are indicated in the Appendix
2 of CITES.
The article 22/1 of the Mongolian Law on Hunting says that export of very rare and
very rare animals for research purposes will be regulated in accordance with those
International Agreements and Regulations which Mongolia has signed.
The article 22/2 of the Mongolian Law on Hunting says that the State Administrative
Central Organization which is the Ministry for Nature and the Environment, is authorized to
issue certificates for export of wildlife, based on conclusions and statements of professional
organizations.
Export procedures for very rare and rare species and those listed in Appendices of
the CITES are carried out strictly under the provisions of the Law on Natural Plants and CITES
Convention. Therefore, the Minister for Nature and the Environment has adopted the
Resolution #19 on "Export Procedures of Natural Plants, Forest Resources and Flora
originated Raw Materials of Mongolia" in 1997.
2 CITES NATIONAL MANAGEMENT AUTHORITY OF MONGOLIA
The Management Authority headed by the Director General of the Environmental
Protection Agency, works to implement CITES. The Management Authority has 8 members,
who are officers in charge of fauna, forests and flora conservation of the Ministry for Nature
and the Environment. The Authority also includes officials from the Environmental Protection
Agency and international trade and customs officers of the Ministry of Agriculture and
Industry.
The scientific authority of the CITES is headed by Dr. Ts.Shiirevdamba, Director of
the Department of Administration, Evaluation and Information, Ministry for Nature and the
Environment, and consists of 6 scientists from the Institute of Biology, Geo-ecology and the
Mongolian National University as well.
The Environmental Protection Agency is responsible for day -to-day operations of
the Management and Scientific Authorities of the Conventions.
When Mongolia become a Party to the Convention, the Management Authority of
the CITES in Mongolia designed and issued a certificate granting the permits for the export
and import of fauna and flora species. In 1996 twelve export certificates on 20 ibex horns,
skins of 526 wolves and 5 lynx as well as 25 falcons were given to business organizations,
also one kilo of Musk deer pods was permitted to be re-exported abroad. In 1997, the CITES
certificate was redesigned in order to meet requirements of the CITES Secretariat and Parties,
and it started to be distributed. Five hundred security stamps with a code number of Mongolia
were ordered and printed for the Authority. Each stamp is fixed on the original copy of the
certificate. In 1997, fifty seven export certificates 28 of hunted and 16 dead Argali horns, skins
of 111 wolves and 40 lynx and 150 falcons were given to business organizations. In order to
reintroduce Takhi in Mongolia, an import certificate was issued to 7 Przewalski horses from
Australia.
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3 MEASURES TAKEN TO CONSERVE SPECIES OF FAUNA INCLUDED IN THE
CITES APPENDICES
3.1 Argali (Ovis ammon)
Argali is included in the list of rare animals of Mongolia and Appendix 2 of the CITES.
According to the Law on Hunting of Mongolia, rare species of animals are the species with
poor capability of regeneration, limited distribution, and scarcity of resources and with
potential threat to extinct in the future. Since 1987, the Mongolian Government has issued
special permits on hunting of 20-30 heads of Argali for foreign game hunters. Hunting for other
purposes is prohibited. According to the provisions of the Management Authority of
Convention, foreign hunters are allowed to make their trophies back home, if they have an
export certificate. Most overseas hunters arrive in Mongolia from USA, Mexico and Canada.
There are some cases of exporting horns of Argali who had died by natural cases. In 1998
the Government adopted a decision to prohibit export of dead Argali horns.
The following are current measures for conservation of Argali:
put the Argali habitat under the National special protection;
use experimental artificial ponds for Argali watering are in use;
undertake an evaluation of number of population;
involve local communities and Government organizations in rare wildlife
conservation and breeding activities;
specify a certain percentage of incomes from permitted game hunting for
conservation activities, including protection and breeding as well as the
enforcement of national environmental regulations. In addition, the National
Commission for Conservation of Endangered Species headed by the Minister
for Nature and the Environment is under operation.
3.2 Falcon (Falcocherrug)
Mongolia has 10 species of falcons, which are listed in the Appendix 2 of Convention.
Two species of falcon are included in the list of rare species and they are White Falcon and
Amur Falcon.
Over the last few years the relationship between Mongolia and the Arabian world is
developing rapidly. Arabian people are expressing their interest in the export of falcons.
Estimates of falcon population have been carried out. Based on the results, Mongolia decided
to export 150 heads of Saker Falcon. Cases of attempts of illegal export of wildlife have
occurred with falcons only. Seven cases of illegal falcon export were revealed and a total
of 43 heads of falcons were released from captivity. However a foreign citizen, managed to
take four falcons with him out of Mongolia without the certificate from Mongolian Management
Authority but fortunately he was arrested in Singapore. Discussions to bring those four birds
back to Mongolia was held with the Singapore bird park, however this problem has not yet
been finally resolved due to funding difficulties on both sides. The two another foreign citizens
tried to take 12 the Falco Cherrugs out of Mongolia by car but they were revealed on the
Customs of Tuva, Russian Federation. The birds were released near the border of the two
countries. There is no guarantee that this type of problem will not be facing again. However,
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to prevent similar cases there is more exchange of information between the Parties of the
Convention. It is an example the importance and significance of Mongolia's membership
to the Convention.
3.3 Pallas Cat (Felis manul)
Pallas Cat is an abundant species in Mongolia. However, it is listed in Appendix
2 of the Convention. Therefore, matters regarding the export of Pallas Cat whether to issue
permit or not should be decided on the CITES level.
The Mongolian Authority has received a request from the Japanese Management
Authority of the Convention, suggesting a temporary prohibition on the export of Pallas Cat
skins. Nowadays Mongolia stopped this export, and if there is a necessity, this problem will
be reconsidered and resolved through CITES provisions.
3.4 Snow Leopard (Uncia uncia)
The snow leopard is included in the list of rare species and Appendix 1 of the
Convention. Few leopards occur in Gobi and in the mountains of the southwest of Mongolia.
Local communities consider leopard attacks on domestic animals and they claim the
leopard population may be increasing. But from a scientific point of view, it has not been
proven yet. Some research on leopard habit and behavior has been launched. Illegal
poaching of leopards and trails to take them out of Mongolia has occurred at the borders,
and confiscated skins were sent to museums as exhibits and for decoration purposes.
3.5 G ray Wolf (Canis lupus)
Mongolia has a great source of Gray wolves, and there is no violation in hunting of
this species. But the gray wolf is listed in Appendix 2 of the Convention. It is possible to
prohibit hunting or limits on hunting of Gray wolves in Mongolia because in Mongolian
practice, Grey wolves are considered as main "enemies " of domestic animals in the
countryside. There are even some facts on wolf attacks on people.
Mongolia has no experience on exporting wolves alive, but export of processed wolf
leather is popular. If some countries apply for wolves, the problem will be considered according
to the provisions and certificate.
3.6 Lynx (Lynx lynx)
Lynx is listed in Appendix 2 of the Convention. It is not included in the list of rare
species of Mongolia. In Mongolia, this species is not subject to hunting. At present, we
have not received any proposals from overseas organizations and individuals on hunting the
lynx and/or trading in its skin. If necessary, the problem will be considered in accordance
with national regulations and CITES provisions.
4 ANIMAL-ORIGINATED RAW MATERIALS
China, Korea and other Eastern Asian countries are expressing their interest in
musk pods, deer antlers and bear gall bladders. Musk deer (Moschus moshiferus) is
included in the list of very rare species and listed in Appendix 2 of the Convention. Red deer
(Cervus elaphus) is included in the list of rare species of Mongolia.
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Hunting of Musk Deer is prohibited. Research and experiments on breeding them
in captivity for commercial purposes are in process. We consider that intensive measures
on musk deer conservation should be undertaken in the near future.
We consider that there will be no problem with collecting naturally dropped Red Deer
antlers and exporting them. However collectors, as it often happens, do not wait for the
natural dropping of Red Deer antlers, and they even prefer illegal poaching. Sometimes,
hunters set fires accidentally, and they can be a potential cause for forest fires. Mongolia
needs proper management of the Red Deer antler business: advanced technology, primary
processing and export. Unfortunately, there are no suitable conditions for this kind of business
today in Mongolia. Research activities on breeding Red Deer in captivity and on introducing
updated technology in antler business are undergoing. Some cases of illegal poaching of
female deer, in order to export the bomb and tail of the animal to China, have taken place,
The information on decreasing numbers of Red Deer over the last few years should now receive
greater attention.
5 INTERNATIONAL CONVENTIONSTO WHICH MONGOLIA IS A PARTY:
1 "Convention on Biological Diversity" (1993)
2 "Convention on Climate Change" (1993)
3 "Convention to Combat Desertification" (1996)
4 "Vienna Convention for the Protection of the Ozone Layer" (1996)
5 "Montreal Protocol on the Substances that deplete the Ozone Layer" (1996),
6 "Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal" (1997),
7 "Convention on Wetlands of International Importance especially as Waterfowl
Habitat
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THE IMPLEMENTATION OF BIODIVERSITY CONVENTION IN CHINA
LI.XIAOHUA
Program Officer, Environmental Protection Committee, National People's Congress, 23, Xi
Jiao Min Xiang, Beijing, People's Republic of Chinal 00805
SUMMARY
In 1992, the United Nations Conference on Environment and Development at Rio de
Janeiro adopted the Convention for Biological Diversity. China signed the Biodiversity
Convention in Rio in June 1992 and ratified it in January 1993. Afterthe Rio Conference, efforts
have been made by China to enforce the implementation of this Convention. At the same
time, there are still some problems and difficulties for the country to implement the Convention
in an effective and efficient way. Part I of this article introduces the implementation of
Biodiversity Convention in China. Part II identifies the problems within the effective
implementation and enforcement of this Convention. Part III tries to find some mechanisms
which would make this Convention more workable in China.
1 INTRODUCTION
Each era in human history has its own principal problems. The outstanding
problems for our era are environmental deterioration which occurs together with economic
development. These environmental problems include environmental pollution, loss in
biodiversity and environmental degeneration, such as diminution of forests, soil erosion,
desertification, salinity and decreased soil fertility. All those pose a threat to human survival
and social progress.
Among the problems identified above, the loss of biodiversity is one of the most
important problems. Biodiversity means the variability among living organisms from all
sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the
ecological complexes of which they are part; this includes diversity within species, between
species and of ecosystems.1 Biodiversity provides not only indispensable biological
resources, but also the environmental biosphere for human survival. However, according to
observations and statistics from scientists, species (including the intrinsic genetic
resources) are becoming extinct or lost at a surprisingly fast rate. Some international
scientists estimated that the current speed of species losses is faster by 1,000-10,000 times
than that of the natural extinction before mankind intervened. Most of time in the evolution
of life, the speed of species extinction is approximately equal to that of its formation. However,
the current speed of extinction is over 1 million times faster than that of formation.2 Although
scholars differ in their estimates, it is indisputable that biodiversity has been decreasing at
an unprecedented rate, particularly in humid and tropical developing countries.
Over recent years, the conservation of biodiversity has engaged broad attention of
various countries in the world. The United Nations Conference on Environment and
Development at Rio de Janeiro in 1992 adopted the Convention for Biological Diversity. The
Convention, which entered into force on December 29,1993, aims to protect the genetic pool
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of all species, using techniques similar to those found in national legislation. It takes an
integrated rather than sectoral approach to conservation and sustainability of biological
diversity.3 To date, 171 countries have ratified the Convention.4
China signed the Biodiversity Convention in Rio in June, 1992 and ratified it on
January 5,1993. After the Rio Conference, efforts have been made by China to enforce the
implementation of this Convention. At the same time, there are still some problems and
difficulties for the country to implement the Convention in an effective and efficient way.
This paper will seek to introduce China's effort to implement this convention, analyze
the reasons which have caused a failure to perform and try to find some mechanisms which
would make international environmental treaties more effective in developing countries.
2 IMPLEMENTATION OF THE BIODIVERSITY CONVENTION IN CHINA
2.1 China's Biodiversity Resources
China covers a vast territory of 9.6 million square kilometers, with the complex and
varied geomorphology, climate and natural conditions that accommodate particularly rich
ecological systems. The complicated mix of physical conditions provides diverse habitats
for different animals and plants, for their feeding and breeding, and thus sustains the richness
of biodiversity that makes China one of the megadiversity countries of the world.5
Ecosystem diversity in China's ecosystems ranges from tropical rain forests to
tundra, from marine systems to alpine meadows. The main ecosystems in China can be
divided into several types, such as forest, steppe, desert, farmland, wetland and marine
ecosystems. The plant life in these ecosystems places China amongst the world's three
most plant-rich nations and over half of all China's plants occur nowhere else on earth.6
Species diversity in China is situated in both the Palaearctic and Oriental Realms.
During the late Tertiary period, most regions were not affected by glaciation, thus the flora
and fauna are characterized by having many endemic and relic species.7 China is therefore
regarded internationally as one of the important diversity countries and ranks among the top
10 nations in the world for the diversity of its mammal, bird, amphibian, and plant species.8
According to the new statistics, the total number of all existing species in China amount to
about 83,000 species. It is roughly estimated that more than 100,000 species of insects
are distributed throughout China. There are more than 13,000 marine species recorded for
China's seawater.9
In genetic diversity, China has very high richness in species, and thus can be
considered to have one of the most important stocks of genetic diversity in the world.
China's biodiversity is an important component part of the world. To protect China's
biodiversity will contribute greatly to the protection of natural heritage of humanity.
2.2 Efforts before Joining the Biodiversity Convention
Prior to joining the Biodiversity Convention, China has joined several international
conventions such as CITES, the Ramsar Convention on Wetlands, and the Convention for
the Protection of the World Cultural and Natural Heritage, migratory bird conventions etc.10
To fulfill its responsibilities, China has made some efforts in respect to biological resources
conservation such as endangered species conservation and wetlands protection. Because
the Biodiversity Convention is established upon these previous treaties, these efforts should
be considered as a component of the implementation of Convention on Biodiversity. On the
other hand, Convention on Biodiversity is built on the basis of biodiversity conservation
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practices of different countries. Therefore, before Convention on Biodiversity entered into
force, the biodiversity conservation such as in situ and ex situ conservation and
establishment of protected areas has long history in Contracting Parties which include China.
Here in this paper, the implementation not only refers to the actions in accordance with
Convention on Biodiversity itself, but also includes the former efforts which are the important
part of biodiversity conservation.
2.3 Biodiversity Conservation Action Plan
Pursuant to Article 6 of Conventions required Biodiversity Conservation Action Plan
(BAP) for conserving China's biodiversity in face of the harsh demands placed on it by the
country's enormous population and developing economy was presented in 1994.11 The Plan
is funded under the Global Environment Facility (GEF), through the United Nations
Development Programme(UNEP), and with the World Bank as the executing agency.12 The
in-country process is coordinated by the National Environmental Protection Agency (NEPA).13
Since responsibilities for biodiversity conservation, including research and management are
spread widely throughout the government, NEPA established a Leading Group, composed
of those agencies with significant biodiversity responsibilities.14 The process is very
important, since it marks the first time that scientists, managers and officials from all parts
of China and from abroad have come together to pool their information , ability and effort
toward conserving China's biodiversity.15
The Action Plan documents the present status of biological diversity and biodiversity
conservation in China. Based on the basic assessment to threatened status, the Action Plan
presents the overall objectives which is to set in place as soon as possible measures for
avoiding further damage, and, over the long term, for mitigating or reversing the damage
already done and specific objectives and actions. To ensure the implementation of specific
conservation measures, the Action Plan provides some actions which include legislation and
policy, institutional measures, scientific research, technical extension and demonstration,
publicity and education, and increases international cooperation, etc.
The action plan is a significant step in implementing the Biodiversity Convention in
China. It provides the basis for China's effort to conserve its biodiversity. It will be a platform
document for biodiversity conservation activities, offering important guidance for the
government of different levels, scientific and technological workers and broad masses of the
people in prompting the conservation of China's rich, multiplicate and distinct biodiversity.
2.4 Domestic legislation
In the past ten years, China has promulgated a series of laws and regulations. Some
of them concern biodiversity conservation. The main laws include Forestry Law (1984),
Grassland Law (1985), Fishery Law (1986), Wild Animal Conservation Law (1988), Water
Law (1988), Water and Soil Conservation Law (1991). The regulations include Regulation on
Reproduction and Conservation of Aquatic Resources (1979), Regulation on Salvage
Management (1981), Temporary Regulations on Scenic Resources (1985), Regulation on
Forest Fire Prevention and Control (1988), Regulation on Seed Management (1989),
Regulation on Conservation of Terrestrial Wild Animals (1992), Regulation on Afforestation
of Urban Areas (1992), and Regulation on Forest and Wild Animal Nature Reserves
Management (1985). There are also lots of other laws whose main objectives are not aimed
at biodiversity conservation, but its' implementation has a significant influence to biodiversity
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conservation. These laws include Environment Protection Law (1989), Marine Environment
Protection Law (1982), Land Management Law (1986), Water Pollution Prevention and
Control Law (1995), and Criminal Law (1997).16
2.5 Identify Important Components of Biological Diversity and Priorities
Based on the Criteria for Determining Global Biodiversity Significance and
Conservation Priority of Species, a careful assessment is made by China to identify priorities
among ecosystems and species requiring protection. To guide actions in the interim, the
second workshop on the Biodiversity Conservation Action Plan developed lists of priority
ecosystems and species.17 The priority ecosystem covers different regions and nature
reserves of forest ecosystems, grassland and desert ecosystems, wetlands areas, and
coastal and marine ecosystems. The priority wildlife species include 79 species of
mammals,' 287 species of birds, 5 species of amphibians, 12 species of reptiles, 28 species
offish, 38 species of insects, and 16 species of invertebrates (including marine invertebrates).
The priority wild plants include 151 species in number, of which 6 species are of fungi, 17
species are of gymnosperm, and 128 species are of angiosperm. 18
2.6 In-situ and ex-situ conservation
Conservation is the most effective measures for conserving biodiversity. It means
protecting valuable natural ecosystems and habitats for wildlife that can reproduce and evolve
life in the ecosystem and keep the energy flow, material cycling and ecological process in
the system.19 China's first nature reserve was set up in 1956 at Guangdong Province. At
1960's and 1970's, the rate of establishment of nature reserves was slow. It has recently
accelerated from 1980's, and now there were over 700 nature reserves in the country covering
65 million hectares, which is the 5.5 percent of the total land area. There-are over 480 scenic
areas and over510forest parks, which play an important role in the biodiversity conservation.20
The establishment of wildlife nature reserves in China begin in the 1970s and accelerated
in the 1980s. To date, 280 nature reserves altogether have been established to protect wild
animals and plants, with a total area of 12,871,000 hectares. Of the 280 nature reserves,
211 reserves are designed to protect wild animals, with an area coverage of 12,462,000
hectares; and 69 reserves are designated to protect wild plants, with an area coverage of
409,000 hectares.21
To help conserve rare and endangered species, various ex-situ conservation bases
and reproduction centers were established in the early 1980's. The number of botanical
gardens in China are about 110 total now. It is estimated that at present about 23,000 wild
plant species are cultivated in the botanical gardens, of 16,000 species are native flora.
Among them about 300 species are in the "Plant Red Data Book". Conservation reproduction
programs were carried out of forest trees, fruit trees, ornamental plants, medicinal plants,
grain crops, vegetables, and some valuable cash crops such as tea and mulberry trees. In
the aspect of ex-situ conservation of wildlife animals, 26 reproduction farms of endangered
and endemic animal species have been built for conservation. There has been some success
in breeding some 10 species of animals that were on the brink of extinction. In China, another
kind of ex-situ conservation is based on zoos. In the past decades, zoos in the country have
carried out extensive research in preservation and reproduction techniques for rare animals.
Now there are 175 zoos in the country in which more than 600 species of vertebrate animals
with a total of 100,000 are protected.22
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2.7 International Cooperation
International cooperation is essential if China is to achieves its goals in conserving
some of the greatest concentrations of biodiversity on Earth and achieving development
through the sustainable use and management of these resources. China has created the
Chinese Council for International Cooperation in Environment and Development —a high level
vehicle for expanding international cooperation on environment and development and making
specific recommendations to the State Council in 1992. One working group of Chinese
Council for International Cooperation in Environment and Development which named the
Biodiversity Working Group has a specific focus on biodiversity.23 In the aspects of
biodiversity, China has been cooperating with many international organizations such as World
Wildlife Fund, International Union for the Conservation of Nature and Natural Resources
(IUCN), Glo'bal Environmental Facility, McArthur Foundation, WFP, etc.24
3 THE PROBLEMS WITHIN THE EFFECTIVE IMPLEMENTATION OF THE
BIODIVERSITY CONVENTION
As a developing country, China has made great progress in the implementation of
Biodiversity Convention. However, there still exists some problems between the requirement
and the implementation which include the following aspects:
3.1 Pressures from economic growth
Since the early 1980s, China began to implement the policies of "economic reform"
and "opening doors to the world". These policies brought the profound influences to the social,
economic and cultural structures of the country. For most of the Chinese people, for the first
time in their life, the prosperity of the western world was recognized. This created an
extremely strong desire for developing the country's economy. In the past two decades,
China's economy experienced a great boom with the two-digits of average growth rate. The
economic development brought Chinese people improved living standards and increasing
opportunities for future development. However, at the same time, the economic growth has
seriously damaged the natural resources and environmental quality of the country. For
example, air and stream water within most of the urban areas have been significantly polluted
and brought serious health problems; natural resources have been acceleratingly explored
without appropriate conservation measures. As far as biodiversity is concerned, many
vegetarian areas such as forestry, grasslands and wetlands have been converted to
construction land for the purpose of development. This destroys the habitats of many
endangered and threatened species.
3.2 Inefficient environmental legal system
Domestic legislation is a key link for the implementation of international conventions.
Only when the principle of international conventions is applied in the process of domestic
legislation, the implementation of international convention becomes possible.
Since the late 1970s, law has acquired greater importance and become a
considerable factor in China's economic, political, and social transformation. The proven
benefits of a stable legal system have not been ignored by China's law makers and the public
at large. The development of China's various environmental regulatory regimes has played
a prominent role in the revolution of the country's overall legal system and is increasingly
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seen as an important component to China's future prosperity. Up to now, about twenty laws
concerning environmental protection and resources conservation have been formulated by
the National People's Congress or its Standing Committee, and enormous regulations,
standards, and other legal documents have been issued by the State Council, the related
ministries and the local governments. It can be said that China has had a good beginning
for establishing its environmental legal regime. However, in the field of biodiversity
conservation, there is still a big vacuum within the domestic legislation.
A big gap in the law may exist concerning access to genetic resources and
technology transfer. For developing country, access to genetic resources and technology
transfer are two important measures to conserve domestic biodiversity. However, how to use
this measures to conserve China's rich biodiversity is still not considered either by China's
legislation or policy-making;
In the aspect of natural ecosystem conservation, China has promulgated 9 related
laws which covered the field of forest, grassland, fishery, wildlife, water, mineral, and land.
But the main purpose of these laws is to manage the use of natural resources, not to
conserve natural ecosystems. As a result there are no special provisions which relate to
the conservation of ecosystems. On the other hand, there are still not any laws or regulations
concerning the conservation of wetlands, fresh water, and deserts which are the important
parts of ecosystem in a country.
In the aspect of species conservation, although China has established a
comparatively complicated legal system, these laws and regulations put more emphasis on
the protection of big typ:e vertebrates, and ignore the invertebrates, even for some small type
vertebrates. Among the 96 kinds of first class priority wildlife in the China's key protected
wildlife lists, 82.3 percent are mammals and birds. Only 4 percent are fishes, and 7 percent
are invertebrates. There is no amphibious in the lists. Small type species are very fragile,
however, some species disappeared even before they are described. They need more
significant protection.
In the aspects of genetic resources, China has not made related laws. Although
the State Council has promulgated Regulation on Seed Management and Regulation on
Conservation of Terrestrial Wild Animals, only a few provisions in these regulations are related
to the protection and management of genetic resources. These provisions are very less
specific either in the protection subjects and protection measures or in the management
institution, especially in the selection, preservation, import, and export of genetic resources.
In the aspects of tourism resources protection, the fast development of scenery and
scenic spot has caused the serious destruction of scenic resources and species resources.
However, there is not specific legislation to regulate the conservation and management of
tourism resources in the present of China.
3.3 Enforcement problem
In China, law enforcement is always one of the major problems within the
establishment of a sound legal system. In the field of environmental protection, for a variety
of reasons, environmental laws and policies are far too often ineffective or simply unworkable.
A common compliant is: "we have good laws, but they are not enforced."25 This situation is
true with respect to biodiversity conservation. Though related laws, regulations, policies and
plans have been formulated, many requirements within such legal documents have not been
implemented well. For example, violations of wildlife conservation such as illegal hunting
and illegal market are still frequently happening; over-hunting, over-fishing and over-planting
are still common phenomena throughout the country; some endangered species are even
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found in the table of small or fancy restaurants. The reasons of such poor enforcement are
quite complicated. First, the capacity of enforcement are comparatively weak. For example,
the USEPA has more than 17,000 enforcement staff around the country, however, its
counterpart, China's SEPA only headquarters 250 staff. Though several thousands of
environmental enforcement officials work in provincial and local level, it is still a big difference
with respect to the comparison of enforcement capacity. Second, lack of coordination among
various institutions eliminate the effective enforcement. For example, the rapid creation of
reserves has led to management problems. Six different national agencies are responsible
for some sites and not all agencies have expertise in nature conservation. Typically, managers
have limited funds and little decision-making power. For example, the Ministry of Forestry
controls pandas in the wild while the Ministry of Construction manages pandas in zoos, a
situation that invites conflict and breeds reluctance to share information and resources.26
Third, government officials' corruption has became a big obstacle which hinders the effective
enforcement of laws and regulations. In environment management, corruption may be
exhibited in a variety of ways from high level ad hoc exemptions to industrial plant sitting
restrictions in environmentally sensitive areas, to the granting of operating permits for new
plants even before emission controls are in place, to the falsification of monitoring records
and so on.27
3.4 The Cost of Old Traditions
China is one of the countries which have the longest literal recorded history. Several
thousands of years feudal imperial system irons the country a strong political, economic and
cultural traditions.
Historically, China is a country "ruled by men" rather than "ruled by law". In the
thousands of years' history, little attention was paid to the establishment of a comprehensive
legal system. For the ordinary people, when conflict occurs, they are accustomed to solve
the dispute by mayors, directors, and even the senior persons of their community. Very few
cases will be sued in court. For most of the citizens, they seldom try to figure out "what the
law says" and what their legal rights should be. In their opinion, when the two parties argue
before a court, it usually means the end of their relationship. In the field of environmental
pollution, though the number of public complaints has increased greatly in the recent years,
the legal procedure for the settlement of environmental conflicts has not yet been established.
As a result of the feudal economy and the autocratic monarchy system, in its
thousands of years of history, China only had one complicated act which included criminal
law, civil law, and all other kinds of laws. Among these, criminal law was the most important
and completed part, while civil law and commercial regulations were very limited and there
were few provisions concerning these respects in the feudal act. For ordinary people of China,
law just means criminal law. Few people can realize the authority of Constitution, civil law,
administrative law, and environmental law, etc. For most of the Chinese people, if a violation
is such that the violator does not commit criminal offenses, such a violation is not looked
at as a "serious" violation. This traditional legal awareness is one of the major reasons which
influence the legislation and enforcement of China's environmental legal system as well as
the implementation of international environmental treaties including the Biodiversity
Convention.
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China has a long history of using animal and plant materials to produce Chinese
medicines. Some of such animal and plant parts include rhino hore, tiger bone and bear gall
bladder and etc., which are drawn from endangered or threatened species. This tradition
makes China bear much more pressure than most of countries in the world in protecting
wildlife and implementing the Biodiversity Convention.
3.5 Inefficient financial resources
China is a developing country which suffers the urgent investment needed for various
areas such as industry, construction and education. Under these circumstances, it is not
realistic to expect the country to spend a lot of money in biodiversity conservation. China's
government takes a positive attitude to protect biodiversity, and has promulgated several
plans and identified more than 100 priority projects with respect to biodiversity conservation,
however, most of them have not been implemented well because of the shortage of money.
Financial resource is the most predominant factor influencing the implementation of the
biodiversity conservation plans.
3.6 Environmental awareness and public participation.
In China, the environmental awareness of leaders in various levels and public at large
is still in the relatively beginning stage. Though citizen suits to seek remedy of environmental
pollution or damages therefrom are provided in some Chinese environmental documents,
such actions are very few in practice. China's environmental impact assessment regulations
currently contain no provisions for public commentary. The non-governmental environmental
advocacy community in China is virtually nonexistent. Environmental and legal awareness
in China, as compared to the awareness of enforcement-oriented societies such as the
United States and Canada, is still at a nascent stage. As a result, very few cases exist in
which citizens sue companies or regulatory agencies for damages stemming from
environmental violations.28
3.7 Related International Issues
After the Rio Conference in 1992, the international community has established some
mechanisms to assist developing countries to implement environmental treaties including
the Biodiversity Convention, which mainly reflected by the operation of Global Environmental
Facilities. However, this international mechanism has been proved ineffective in promoting
the domestic efforts of developing countries. For example, in the last five years, China has
applied for several projects to Global Environmental Facilities, but only two projects were
approved or considered by Global Environmental Facilities. Moreover, a lot of time is spent
in the preparing and starting period, which caused these priority project can not be
implemented in good time.29
Illegal trading of endangered species and related materials are banned by CITES,
however, such trading still exist for variety of reasons. For example, the desire of panda
products from some countries brought the illegal trading of panda skin. This significantly
affects the protection of the Grand Panda. Certainly the component authorities of China
should pay enough attention to this international-related smuggling, however, international
efforts should also be made.
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4 MAKING BIODIVERSITY CONVENTION MORE WORKABLE IN CHINA
An international treaty can identify a global problem, arrange technical and financial
cooperation, and spur the sharing of ideas and solution. The most effective actions, however,
take place at the national level and subnational levels.30 To make the Biodiversity Convention
more workable, it needs efforts in both the domestic and international levels.
The Biodiversity Convention requires governments to develop national strategies and
programs and to report on these efforts to the international community. Among other
measures, governments should seek to monitor their national biodiversity to ensure that
action is based on sound scientific knowledge, integrate biodiversity concerns into national
legislation and other economic and social measures, encourage conservation and
sustainable use of biodiversity resources, and support efforts by local populations to adopt
more sustainable practices.31
4.1 Legislation
In the context of the international community, biodiversity has only recently been
recognized as a subject of protective legislation. In China, it is the same situation, although
many pre-existing laws, formulated to achieve specific goals in other respects, also affect
biodiversity conservation. There are also big gaps in the legislative coverage and there may
be areas where there is overlap or conflict between existing laws. Consequently, as a first
step, China should initiate a comprehensive review of the nation's legislation as it affects
biodiversity conservation. The review should identify where new laws are needed and where
existing laws need to be canceled or amended. These legal reforms should then be
implemented.
As a second step, some comprehensive and special laws and regulations should
be prepared and promulgated in line with the overall goals and general tasks of biodiversity
conservation, and particularly in line with the requirements and demands of the Biodiversity
Convention. Those laws and regulations should include procedures on access to genetic
resources, intellectual property rights protection on biotechnology transfer, regulations on
nature reserve management, laws on plant resources, conservation regulations on protection
and conservation of fragile or sensitive areas in the environment or ecosystems. Among
these, the most urgent for China are the comprehensive biodiversity conservation law, the
plant protection law and the regulations regarding management of nature reserves.
4.2 Policy Making
In China, there is a "customary process" within legislation and policy making.
Normally, the legal rules adopted in legislation have to be experienced a process in policy
level. When a policy is proved by practice as a good one, it is often upgraded as a legal rule.
So, in China, a policy is often looked as the primary step of legislation. As far as biodiversity
conservation is concerned, some policy instruments are needed in the near future.
First of all, the environmental impact assessment requirements should be applied
to all activities of natural resources utilization including biological resources. In China, the
present EIA procedure just applies to construction projects which may produced pollution.
The broader application of such procedure should be introduced into biodiversity conservation.
Environmental Impact Assessment should be conducted in any activities which may cause
the loss of biodiversity. Secondly, the economic incentives should be used for biodiversity
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conservation. Such incentives may include a compensation system in which the efforts of
biodiversity conservation should be encouraged by subsidies, tax-deductions or other
investment incentives.
4.3. Financing Implementation
Implementation of the Biodiversity Convention in China will require a large source
of funding. China shall seek funding from all possible financing channels which include
central government investment, local government investment, social contributions,
international assistance and required investments.32 Among these, the central government
investment is the most important. The measures for the central government should include:
Implementation of the Biodiversity Conservation Action Plan should be include
in the long-term prospective planning, five-year planning and all annual plans
of the nation's economic and social development so as to decree the financing
for its key items for implementation.
The implementation of both basic research and technical research on
biodiversity should be included in the nation's both long-term and short-term
scientific research programs and given full financial support.
All relevant ministries and governmental agencies should include the
biodiversity conservation projects in their administration plans and allocated
the required funds for management of nature reserves and enforcement of
relevant laws and regulations.
4.4 Involvement of the Whole Society
Unlike any earlier multilateral sustainable development treaty, the preambular
language to the Biodiversity Convention recognizes the vital roles played by various parts
of the whole society in the biodiversity conservation and sustainable use of biological
diversity.
Firstly, the effective implementation of the Biodiversity Convention affirms the need
for the full participation of women at all levels of policy-making and implementation for
biological diversity conservation. It is the only multilateral treaty that acknowledges a
fundamental link between women's participation and the implementation of the treaty itself.33
The involvement of women in implementation of Biodiversity Convention are specially important
in China, since women of the country take the burden to raise the families and educate the
next generation. In many rural areas, most of the men leave their hometown and work in
urban areas for better money-making, so women have a close relationship with nature since
they shoulder the increasing role in collecting fuels of cooking, farming the agriculture land
and raising the poultry animals.34
Secondly, indigenous and local communities' participation shall be paid enough
attention. The Fourth Meeting of the Conference of the Parties to the Convention on Biological
Diversity advised on the application and development of legal and other appropriate forms
of protection for traditional knowledge, innovations and practices relevant for the conservation
and sustainable use of biodiversity. One of its Working Groups highlighted the need for
increased participation of indigenous and local communities in the Convention of Biodiversity,
and recommended the establishment of an inter-sessional ad hoc working group which would
include the full participation of indigenous and local communities, would meet between the
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of the Conference of the Parties sessions and develop its tasks over an initial three-year
period.35 Further work should be done in China to stress the legal rights of indigenous and
local communities and to stimulate local communities' participation.
Thirdly, the active participation by the Non-governmental organizations should be
encouraged. In China, the NGOs' participation in environmental campaign is still very limited.
In the recent years, only two or three NGOs registered in the related governmental agencies
and conducted quite promising activities such as education, research and information
exchange. However, the experiences of a lot of developed and developing countries show
that the active participation of NGOs is a very essential and effective way for protecting
environment and natural resources such as biodiversity. In China, the governments in
national and sub-national levels shall take measures to encourage the development of
environmental NGOs, and to give them more room to exert their positive roles.
Last, how to integrate biodiversity concerns into sectoral activities should be
addressed in China. Such sectors may include industry, agriculture, transportation, energy,
services and tourism. With respect to ownership, not only public sectors should actively
involve in the biodiversity conservation, but private sector participation in implementing the
Convention's objectives. For developing countries, integration are necessary for sustainable
development. For example, sustainable tourism could play a role in poverty alleviation and
biodiversity conservation. 3a
5 CONCLUSION
China needs to develop further legal measures and create effective institutional
structures including those related to effective enforcement to overcome the identified
problems which hinder the implementation of Biodiversity Convention and thus obtain the
goal of more effective biodiversity conservation. At the same time China also needs the help
of international society such as technology and information transfer to implement its national
preservation policies effectively.
ENDNOTES
1 Kiss, Alexandre & Shelton, Dinah, International Environmental Law app. at
171(1994 Supplement).
2 Biodiversity Conservation Action Plan, China, May 1994, at Preface.(hereinafter
Action Plan)
3 Kiss, Alexandre & Shelton, Dinah, International Environmental Law, at 103 (1994).
4 Summary of the Fourth Meeting of the Conference of the Parties to the Convention
on Biological Diversity( May 18, 1998) (hereinafter summary of COP-4).
5 Zhong Guo Lu Xing Sheng Wu Duo Yang Xing Guo Jia Bao Gao (National Report:
the Implementation of Biodiversity Convention in China), China, Mar.1998, at
1 .(hereinafter National Report)
6 Reports of the Biodiversity Working Group: Conserving China's Biodiversity, Beijing
1997, at 6.(hereinafter Conserving China's Biodiversity)
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460 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
7 National Report, supra note 5, at 5.
8 Maintaining Forests and Biodiversity in China (visited on Oct. 12, 1998) .
9 Action Plan, supra note 2, at 5.
10 Conserving China's Biodiversity, supra note 6, at 7.
11 Biodiversity in the People=s Republic of China (visited on Oct. 12,1998) .
12 Action Plan, supra note 2, at i.
13 According to the Decision of National People's Congress of China on Government
Reform in 1998, National Environmental Protection Agency has been renamed
State Environment Protection Administration (SEPA).
14 These agencies included Chinese Academy of Sciences, Ministry of Agriculture,
Ministry of Construction, Ministry of Finance, Ministry of Forestry, Ministry of
Public Security, State Oceanic Administration, State Planning Commission, and
State Science and Technology Commission. Pursuant to the Government Reform,
the Ministry of Forestry has been renamed Forestry Bureau. State Oceanic
Administration has been downgraded as State Marine Bureau under the Land
Resource Ministry. State Planning Commission was renamed State Development
Planning Commission, and State Science and Technology Commission was
renamed Ministry of Science and Technology. See a/so id.
15 Action Plan, supra note 2, at i.
16 The Criminal Law of China was promulgated in 1979 and revised in 1997. In the
revised Criminal Law, there is a specific section which concerns the crime of
destroying environment and resources. This section stipulates the various of
crimes which caused the environmental pollution and resources degradation and
penalties thereof.
17 Action Plan, supra note 2, at 40-41.
18 National Report, supra note 5, at 19.
19 Action Plan, supra note 2, at 17.
20 Id, at 1 The Implementation of Biodiversity Convention in China 7.
21 Id, at 20.
22 Id, at 22-23.
23 Conserving China's Biodiversity, supra note 6, at 7.
24 Id.
25 Making Environmental Law in Asia More Effective, Hong Kong, March 4-8 1996, at
2.
26 Maintaining Forests and Biodiversity in China (visited on Oct. 12,1998) .
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27 Making Environmental Law More Effective, supra note 25, at 18.
28 Zhang, Hongjun & Ferris, Richard, The Environmental Regulatory Regime of the
People's Republic of China: A Primer Including Practical Concerns for Foreign
Investors (1997).
29 National Report, supra note 5, at 78.
30 An introduction to the Convention on Biological Diversity (visited on Oct 12 1998)
.
31 Id.
32 Action Plan, supra note 2, at 63.
33 Tinker, Catherine, "A New Breed" of Treaty: The United Nations Convention on
Biological Diversity, 13 Pace Environmental. L. Rev. 191, *193.
34 See Hunter, David & Salzman, James & Zaelke, Durwood, International
Environmental Law and Policy (1998), at 994.
35 Summary of the Fourth Meeting of the Conference of the Parties to the Convention
on Biological Diversity( May 18,1998) .
36 See id.
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ZHAO, JIMIN AND ORTOLANO, LEONARD 463
COMPLIANCE WITH THE MONTREAL PROTOCOL IN CHINA: AN
INVESTIGATION IN TWO INDUSTRIAL SECTORS
ZHAO, JIMIN AND ORTOLANO, LEONARD
Department of Civil and Environmental Engineering, Stanford University, Stanford,
California 94305-4020, USA.
SUMMARY
An analysis of the household refrigeration sector and the foams sector investigates
how Chinese enterprises have complied with the Montreal Protocol on Substances That
Deplete the Ozone Layer. We demonstrate that the performance of the household
refrigeration sector in reducing ozone-depleting substance consumption is superior to the
performance of the foams sector, and we present two explanations for this outcome. First,
market demand matters. The influence of the global market, multinational corporations,
intense (and occasionally misleading) advertising about non-CFC products, and severe
competition for consumers caused China's principal refrigerator manufacturers to adopt non-
CFC production technologies. Similar incentives did not exist for enterprises in the foams
sector. Second, industrial structure matters: The foams sector includes a large number of
small enterprises with limited financial and technical capability and weak access to
information and technology, and these factors obstructed technological change. In general,
assistance from the multilateral fund established under the Montreal Protocol has motivated
enterprises to shift to ozone-depleting substance reduction technologies, but complex and
lengthy procedures for accessing the multilateral fund, difficulties in finding appropriate
suppliers of non-CFC technologies and insufficient financial and technical capabilities of
many enterprises have slowed down this shift. Our results provide a foundation for better
compliance in the future.
1 INTRODUCTION
The ozone layer, which is in the upper reaches of our atmosphere between 10 and
50 km above the ground, protects us from harmful effects of ultraviolet radiation from the sun.
During the 1970s, scientists discovered that the ozone layer was being depleted by
emissions of ozone-depleting substances, which include chlorofluorocarbons (CFCs),
halons, and a number of other chlorine and bromine compounds. Ozone-depleting
substances have been used extensively in the manufacture of refrigerants, aerosol
propellants, and foam blowing agents. To prevent the depletion of the ozone layer, more than
160 nations (including China) ratified an international environmental agreement called the
Montreal Protocol on Substances That Deplete the Ozone Layer. (This agreement and
amendments to it are hereinafter referred to as the "Montreal Protocol.") A key provision of
the Montreal Protocol requires signatory developing countries to phase out use of CFCs and
halons by 2010.
To assist in meeting the 2010 phase out requirement, Parties to the Montreal
Protocol established a Multilateral Fund that offers financial and technical assistance to
developing countries. The main task of the Multilateral Fund is to "meet, on a grant or
concessional basis as appropriate, and according to criteria to be decided upon by the
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464 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Parties, the agreed incremental costs" incurred by developing countries in reducing
production and consumption of ozone-depleting substances. "Incremental costs" are the
additional costs incurred when a company switches from an ozone-depleting substance
technology to a non-ozone-depleting substance technology.1 The Multilateral Fund, together
with provisions of Article 10 on technology transfer, provides an opportunity for developing
countries to keep up with new technologies being developed in industrialized nations. Even
though enterprises must pay project costs that are not defined as incremental by the
Multilateral Fund Executive Committee, grants from the Multilateral Fund typically cover a
significant fraction of funds needed by enterprises to shift to non-ozone-depleting substance
technologies. In order to access this fund, a nation must first prepare a "country program"
that lays out plans for meeting the Montreal Protocol's goals.
Ten ozone-depleting substances controlled by the Montreal Protocol are commonly
produced and consumed in China. During the early 1990s, three controlled substances, CFC
12, CFC 11, and halon 1211, accounted for over 90% of China's total ozone-depleting
substance consumption and production. The fire protection sector and the chemical industry
sector produce most of the ozone-depleting substances used in China. The primary ozone-
depleting substance consumers in China include nine sectors: foams, fire protection,
household refrigeration, industrial and commercial refrigeration, aerosols, mobile air
conditioning, solvents, tobacco, and soil fumigation and food disinfestation. In terms of ozone
depletion potential, manufacturers of foams, halons, and refrigerators are the primary ozone-
depleting substance consumers in China.2
China ratified the Montreal Protocol in 1991. To comply with the 2010 phaseout goal,
China's industries that consume or produce ozone-depleting substances will eventually have
to switch to non-ozone-depleting substance technologies. Some enterprises have already
switched to reduced-ozone-depleting substance or non-ozone-depleting substance
technologies. This paper analyzes Chinese industries' behavior in compliance with the
Montreal Protocol, and it identifies incentives and barriers to compliance. We use two
industrial sectors as examples, household refrigeration and foams. Firms in each of these
sectors consume a notable fraction of total ozone-depleting substance consumption in
China: in 1996, the household refrigeration sector was responsible for about 12% of total
ozone-depleting substance consumption, while the foams sector accounted for 21%. As
we demonstrate below, these two sectors have responded in very different ways to the
requirements of the Montreal Protocol. This paper is based on ten-months of field research
conducted in 1996 and 1997 in Beijing, Shanghai, Hangzhou, Qingdao, Tianjin, and Xinfei.
2 HOUSEHOLD REFRIGERATION SECTOR
China's household refrigeration industry consists of enterprises manufacturing
household refrigerators and freezers and the compressors used in those appliances. Most
production equipment and technology in this sector was imported from Italy, Japan and
Germany during the 1980s. As of the late 1990s, China had fewer than 40 enterprises in
the household refrigeration sector and the sector's total capacity to produce household
refrigerators and freezers was over 15 million units per year. In 1995, China manufactured
12.1 million household refrigerators and freezers, which accounted for 50% of the total
production of refrigerators in all developing countries that ratified the Montreal Protocol and
have an annual ozone-depleting substance consumption of less than 0.3 kg per capita.3
These countries are often called "Article 5 countries", because Article 5 concerns the "special
situation of developing countries".
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ZHAO, JIMIN AND ORTOLANO, LEONARD 465
2.1 Compliance with the Protocol
In producing refrigerators and freezers, Chinese enterprises employ CFC 11 as a
blowing agent and CFC 12 as a refrigerant. To phase out use of CFCs in the household
refrigeration sector, enterprises must adopt technologies that employ non-CFC foams and
refrigerants, and use compressor designs that accommodate the new refrigerants.
Some Chinese refrigerator manufacturers adopted non-CFC technologies or
conducted research on non-CFC technologies before China signed the Montreal Protocol
in 1991. An example of an early adopter is the Jingdezhen Huayi General Electric Appliance
Company. Even before 1991, the firm had negotiated a deal to import a refrigeratorcompressor
production line that would use hydrofluorocarbon (HFC) 134a, an expensive alternative to CFC
12. Other examples involve enterprises such as Qingdao Haier Group and Xinfei Refrigerator
Company, which began their research on non-CFC technologies as early as 1989.
After China ratified the Montreal Protocol, the number of household refrigerator
enterprises conducting research on non-CFC technologies increased, and many enterprises
in the sector have followed the development of non-ozone-depleting substance technologies
closely. As of 1995, over 90% of the ozone-depleting substance phase-out in the household
refrigeration sector had been attained using a 50%-reduced CFC 11 technology. After 1995,
some Chinese refrigerator manufacturers adopted "transitional technologies," i.e.,
technologies using "transitional substitutes" such as hydrochlorofluorocarbon (HCFC) 141 b
and HCFC 22. These materials, which have fewer impacts on the ozone layer than CFCs
even though their ODPs are not zero, are being used in the transition to non-ozone-depleting
substance technologies. Since 1996, a number of China's top refrigerator manufacturers
have employed 100% CFC-free substitutes, such as cyclopentane for CFC 11, and isobutane
or HFC 134a for CFC 12.
Some of the above-noted CFC-reduction activities have been supported by the
multilateral fund. By the end of 1997, the Multilateral Fund provided US$ 71 million to 46
projects in the sector. To complete these projects, enterprises used their own funds to cover
costs that did not fall under Multilateral Fund Executive Committee's definition of incremental
costs.
The Chinese Household Electrical Appliance Association estimated that of the 12
million units of household refrigerators and freezers manufactured in China in 1996, about
3 million units were produced with reduced- or non-ozone-depleting substance technologies,
and production lines with over 5 million units of capacity were in the process of changing to
non-ozone-depleting substance technologies; the remaining 4 million units had not reduced
their use of CFCs. In other words, about two-thirds of the production lines have been or are
being changed to reduced-CFC technologies. The output of household refrigerators and
freezers has been rising by an average of 16% per year since 1991, and CFC consumption
in the sector has been falling since 1995, the year in which the effects of the various ozone-
depleting substance-reduction projects began to be seen (see Table 1).
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Table 1 Household Refrigerators and Freezers: Total Production and Ozone-
depleting Substance Consumption
Year
1991 1992 1993 1994 1995 1996 1997
Production (million units)
5.5
6.2
8.1
9.9
12.1
12.4
13.0
OPS Consumption (thousand tons) 6.15 6.96. 8.46 10.7 8.45 9.59 7.39
Sources: CHRAA (1995) and NEPA (1998). Data are rounded
2.2 Incentives and Capabilities for Compliance
2.2.1 Market Demand
Of all the factors motivating Chinese household refrigerator producers to comply with
the Montreal Protocol, market demand is the most significance. Five of the seven refrigerator
manufacturers we visited during our research placed market demand as the number one
reason for adopting CFC-reduction technologies. The importance of market factors is
apparent in the following explanation for how decisions were made by a large refrigerator
manufacturer:
If we could obtain a good market share for this product [refers to CFC-free
refrigerators], we would conduct ozone-depleting substance reduction even if there were no
financial support [from the Multilateral Fund]. But if we could not obtain a good market share,
we would not carry out ODS reduction even if [Multilateral Fund] financial support were
available.
Support for the prominence of market demand as a factor is given by the role of
Chinese refrigerator manufacturers in China's ratification of the Montreal Protocol. Under
the Montreal Protocol, Chinese refrigerator manufacturers would not have been able to export
to countries that were Party to the Montreal Protocol unless China ratified the agreement.
Once Chinese enterprises that had been exporting refrigerators learned about this trade
restriction, they strongly encouraged the Chinese government to ratify the Montreal Protocol.
Access to global markets was the initial motivation for several Chinese refrigerator
manufacturers to adopt non-CFC technologies. These enterprises saw China's household
refrigerator exports fall by 58 percent between 1988 and 1991, a period in which European
consumers began demanding refrigerators with environmental labels indicating they were
CFC-free.4 European demand for CFC-free refrigerators resulted, in part, because many
European nations had signed the 1987 Montreal Protocol. In order to compete in European
markets, some Chinese refrigerator companies worked with universities and research
institutes to develop non-CFC technologies. At the same time, those firms asked China's
National Environmental Protection Agency5 to establish an environmental labeling program;
the refrigerator manufacturers hoped that a Chinese environmental label would allow them
to satisfy labeling requirements imposed by European countries. As a result of joint efforts
by National Environmental Protection Agency, the China State Bureau of Quality and
Technical Supervision, the Chinese Research Academy of Environmental Sciences, and
industries, in March 1993, China began its environmental labeling program; reduced-CFC
household refrigerators were included as products eligible to receive labels.6
While trade with Europe was the initial motivation for the switch to reduced-CFC
refrigerators, the labeling program had the effect of causing some enterprises who sell
refrigerators only in China to adopt reduced-CFC technologies.7 This is notable because most
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ZHAO, JIMIN AND ORTOLANO, LEONARD 467
companies in the household refrigeration sector do not export. In 1993, enterprises exporting
refrigerators to Europe introduced refrigerators labeled as "non-CFC" (wufu) into China's
domestic refrigerator market. Once this occurred, some companies that had no intention
to export refrigerators felt pressure to adopt CFC-reduction technologies. These enterprises
believed that adoption of reduced CFC technologies and acquisition of environmental labels
would allow them to maintain or expand their market shares. By 1996, 38 categories of
refrigerators sold by 12 enterprises had been certified to use environmental labels. To obtain
certification, these firms had changed to either 50%-reduced CFC technologies or CFC-free
technologies.
Some enterprises used advertising to stimulate consumer demand for their non-CFC
refrigerators and consumers' preferences promoted further CFC reductions in the sector. In
1996, many leading Chinese refrigerator manufacturers emphasized the non-CFC features
of their refrigerators in newspaper and television ads. Some manufacturers' ads misled
consumers by implying that having refrigerators made with CFCs in their homes could be
directly harmful to their health. Other manufacturers employed ads touting use of the world's
most advanced CFC-substitution technology in their refrigerators. Because of worries about
health impacts and a high interest in buying "world class" refrigerators, many consumers
bought non-CFC refrigerators during the first half 1996. This expression of consumers'
preference pushed more refrigerator manufacturers to adopt non-CFC technologies; even
manufacturers with limited technical capabilities made the switch. Some of these enterprises
produced low quality non-CFC refrigerators. In order to protect the public from misleading
ads and to encourage firms to enhance their refrigerator quality, National Environmental
Protection Agency and the Chinese Household Electrical Appliance Association used
television and newspapers to educate the public about ozone layer depletion and non-CFC
technologies. As a result, enterprises producing low quality refrigerators either went out of
business or improved their product quality.
The importance of consumer demand on the choice of manufacturing technology
is further demonstrated by the way Chinese refrigerator companies tailored technologies to
suit markets in different parts of the world. Actions by Qingdao Haier Group are illustrative.
In response to the sensitivity of Chinese consumers to energy costs, Qingdao Haier worked
with the University of Maryland and the U.S. Environmental Protection Agency to create a
CFC-free refrigerator that cuts energy use by 40%. These new refrigerators have sold well
in China. Because of different preferences for non-CFC technologies in the European and
United States markets, Qingdao Haier Group proceeded as follows: the firm used HFC 134a
to replace CFC 12, and HCFC 141b to replace CFC 11 in manufacturing refrigerators for
export to the United States, whereas it used isobutane to replace CFC 12, and cyclopentane
to replace CFC 11 in refrigerators it sells in European countries. The group's refrigerators
in both the United States and Europe also had energy saving features.
2.2.2 Influence of Multinational Corporations
Many analysts have argued that multinational corporations are effective in
disseminating new technologies when they begin manufacturing in developing countries, and
this has occurred in China's household refrigeration sector. Since 1995, an increasing
number of refrigerator producers from the United States, Japan, Germany, Sweden and Italy
have entered China either by creating "foreign enterprises" in China or by forming joint-
ventures with Chinese enterprises. Currently over 30% of the firms in China's household
refrigeration sector are joint ventures involving Chinese and foreign firms and most of them
employ CFC-free production practices. The presence of foreign corporations has contributed
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to the spread of information about reduced-CFC technologies and pressured China's domestic
enterprises to switch to non-CFC technologies. For example, one Chinese refrigerator
company used its own funds to switch to CFC-free technology in 1996, even though the
company had no intention to export. The manager of this enterprise provided the following
explanation for why the company made the switch:
The multinational corporations have entered China's domestic market. Because we
do not export refrigerators, we do not need to follow the requirements of foreign markets.
However, China's market is part of the world market. If we had not changed, we would have
lost China's domestic market.
Not all Chinese refrigerator manufacturers have been able to respond to the
competitive pressure from multinationals by shitting to reduced-CFC technologies. Some
state-owned and collectively-owned refrigerator manufacturers lacked the technical skill and
financial means to make the change. As a result of competition, some of these enterprises
have been forced out of business. Officials in the Office of Household Electrical Appliance
Industry are very concerned that Chinese refrigerator firms not involved in joint ventures will
be devastated by their competitors.
2.2.3 Assistance from the Multilateral Fund
The multilateral fund has also encouraged Chinese refrigerator manufacturers to
adopt reduced-CFC technologies, but it has not been as significant an influence as either
market demand or multinational corporations who have established a presence in China. The
main effect of the Multilateral Fund has been to speed up adoption of reduced- or non-CFC
technologies by enhancing the financial capabilities of Chinese refrigerator manufacturers.
Because an acceptable country program had to be in place before Multilateral Fund
money could flow into China, enterprises in the household refrigeration sector pushed the
government to complete China's Country Program quickly. Enterprises we visited indicated
that even though they would have adopted non-CFC technologies without financial
assistance, the opportunity to obtain Multilateral Fund support encouraged them to move
more quickly because the Multilateral Fund money would provide them with the financial
means to change technologies. By the end of 1997, US$ 71 million had been granted to
this sector for technology change, project preparation, and training; most of the Multilateral
Fund money was used to change production technologies.
2.2.4 Access to Information and Technology
In contrast to firms in other sectors that use CFCs, most refrigerator manufacturers
have imported equipment, and some have close connections with foreign firms. Because
refrigerator manufacturers have technically skilled workers and easy access to information,
it was relatively easy for them to adopt reduced-CFC technologies. A number of these
enterprises learned about the Montreal Protocol and its requirements from their foreign
partners. Moreover, some joint-venture refrigerator manufacturers adopted technologies used
by their foreign partners. For example, Xiling, now uses HFC 134a and HCFC 141 b as a CFC
substitutes in its new refrigerator production line; Xiling made these change at the request
of Sanyo, its Japanese partner.
Refrigerator manufacturers also have good access to information through the Chinese
Household Electrical Appliance Association. In addition to holding annual meetings that
provide a forum for exchanging technical information, Chinese Household Electrical
Appliance Association publishes the Household Electrical Appliance Journal to keep Chinese
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ZHAO, J/MIN AND ORTOLANO, LEONARD 469
companies up-to-date on technical innovations. Because there are only about 40 refrigerator
manufacturers in China, information flows easily between the Chinese Household Electrical
Appliance Association and the companies.
In comparison to companies in other sectors, refrigerator manufacturers could more
easily learn about alternative financing methods and new technologies, and thus they could
more readily take advantage of the Multilateral Fund. China's Country Program, which was
prepared in 1993, contained a sector-by-sector estimates of funds required from the
Multilateral Fund in order for China to cut production and use of ozone-depleting substances.
The household refrigeration sector received 163% of the funds specified for that sector
between 1991 and 1996 in China's Country Program, whereas most other sectors received
only about 10% of the funds called for in the Country Program. These differences are partially
explained by the ability of refrigerator manufacturers to access information and thus be better
able to satisfy requirements of the Multilateral Fund Executive Committee.
2.3 Obstacles to Compliance
Most enterprises in the household refrigeration sector have the incentives and abilities
to adopt cleaner technologies. However, contrary to the expectation of enterprise managers,
complex Multilateral Fund application procedures and difficulties in technology transfer have
slowed down the adoption process.
2.3.1 Complex Multilateral Fund Application Procedure
Although managers at the seven refrigerator manufacturing enterprises we visited
were initially excited about the Multilateral Fund, they each expressed frustration with the
Multilateral Fund application and fund disbursement procedures. In the administrative
process set up by the Multilateral Fund, proposals for projects identified in a country program
are first approved by the country itself and then submitted to one of four agencies
implementing the Multilateral Fund: the World Bank, the United Nations Development
Program, the United Nations Environment Program, and the United Nations Industrial
Development Organization. The implementing agency conducts its review and may suggest
revisions in the proposed project. After the implementing agency approves a proposal, it
submits the proposal to the Ozone Fund Secretariat, an organization that supports the
Multilateral Fund Executive Committee in managing the Multilateral Fund and acts as a
liaison between the implementing agencies and the Executive Committee. Following an
evaluation by the Ozone Fund Secretariat, a proposal is sent to the Executive Committee
for final approval. After a project receives approval, the implementing agency must create
detailed plans to administer funding for the project.
In addition to the above-described procedures, each implementing agency has its
own multistage process for reviewing proposals before sending them to the Ozone Fund
Secretariat. Moreover, changes suggested by the Ozone Fund Secretariat or mandated by
the Executive Committee must again go through the implementing agency's review process.
Although these complex procedures may contribute to making projects better, they slow
down the project implementation process. Some enterprise managers we interviewed said
they would not have applied for Multilateral Fund money if they had known in advance of the
burdensome and lengthy administrative procedures involved.
Chinese enterprises have spent much time sorting out the Multilateral Fund
procedures. At the outset, the various Chinese agencies involved in implementation were
not familiar with the Multilateral Fund application process and could not provide clear
guidelines for companies. Indeed, many Chinese enterprises did not even know which
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agency they should contact. They had to send staff to Beijing many times to clarify
application procedures and to revise project proposals. For the seven refrigerator
manufacturers we visited, it took a minimum of one and a half years from the time a proposal
had been submitted to National Environmental Protection Agency to the time approval was
granted by the Multilateral Fund Executive Committee.
2.3.2 Difficulties in Technology Transfer
Another impediment faced by Chinese refrigerator companies involves problems in
finding appropriate suppliers of ozone-depleting substance reduction technologies. One set
of difficulties centers on disagreements about which technology suppliers to use. In some
cases, Chinese enterprises disagreed with the choice of technology suppliers selected
through bidding or other procedures used by international experts working for the Multilateral
Fund implementing agencies. In at least two cases, Chinese refrigerator manufacturer spent
considerable time negotiating with experts at the implementing agencies over the choice of
suppliers. In the end, each of these enterprises dropped its objections to the choice of
technology suppliers in order to allow their projects to go forward. Chinese enterprises
complained that international experts did not understand "China's situation" (i.e., the criteria
Chinese companies considered important in 'selecting suppliers); managers we interviewed
claimed that international experts selected technologies they preferred, but these
technologies were not necessarily the best for the enterprises. In contrast, some
international experts at the Multilateral Fund implementing agencies argued that ambiguities
in the documents prepared by Chinese companies are what caused disagreements in
selecting technology suppliers.
The Montreal Protocol requires "the best available, environmentally safe substitutes
and related technologies" to be transferred to Article 5 countries "under fair and most favorable
conditions." However, some enterprise managers we interviewed complained that the tough
conditions for technology transfer provided by suppliers caused delays because much time
was required in negotiating agreements. In some instances, talks broke down and Chinese
enterprises pulled out. For example, after winning the bid to transfer a compressor
technology, one foreign supplier insisted that the transfer could only take place if the Chinese
company paid the supplier 3% of its gross sales. The Chinese company balked at this
condition. Even though the Chinese enterprise eventually found a new supplier, the ozone-
depleting substance-reduction technology was not as mature as the one offered by the first
supplier.
Another enterprise we visited managed to find a large supplier willing to provide it
with a non-ODS technology at a purchase price of US$ 200,000 in early 1996. As a condition
for transferring its technology, the supplier asked the Chinese company to make a separate,
US$ 500,000 purchase of equipment (unrelated to ozone-depleting substances), and the
enterprise agreed. However, as of mid-1997, a final agreement between the two firms had
not been signed. At that time, the Chinese enterprise doubted whether this technology
transfer would take place.
One possible reason for the tough negotiating positions taken by technology
suppliers may be related to China's weak record in protecting legal rights to intellectual
property such as designs for equipment. If a supplier felt it would lose control of its
technological innovations once it sold them to a Chinese enterprise, the supplier might well
insist on creating a joint venture or obtaining very favorable financial conditions at the time
of sale.
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ZHAO, JIMJN AND ORTOLANO, LEONARD 471
3 FOAMS SECTOR
China's foams sector includes enterprises using CFC 11 and CFC 12 as blowing
agents in the production of rigid and flexible polyurethane foams, and extruded polystyrene
and polyethylene foams, respectively.8 About 1,240 polyurethane foam manufacturers and
160 polystyrene and polyethylene foam manufacturers operate in China (SEPA, 1998). At
least 1,000 of the polyurethane foam manufacturers are classified as small, and most of these
small firms are Township and Village Industrial Enterprises,9 which are dispersed throughout
rural areas. Typically, small Township and Village Industrial Enterprises have weak financial
and technical capabilities, and because they are widely scattered, government ministries
have difficulties exchanging information with them.
3.1 Compliance with the Protocol
Under the Montreal Protocol, manufacturers of polyurethane and polystyrene and
polyethylene foams that use CFCs will eventually have to change to non-CFC technologies.
In China, the Plastic Industry Office under the National Council of Light Industry (NCLI) is
responsible for coordinating CFC substitution within the foams sector. As of 1997, no
national policies and regulations existed to promote CFC substitution within this sector.
After China ratified the Montreal Protocol in 1991, foam manufacturers began to
apply for Multilateral Fund grants to implement ozone-depleting substance-reduction
technologies. As of 1997, there were 71 foams-sector projects funded by the Multilateral
Fund with grants that totaled US$ 31 million. Of these, only 54 were for investments in
production facilities; most other grants were for project preparation, training, and sector
strategy formulation. Upon completion, the 54 investment projects would reduce
approximately 7,430 tons of ozone-depleting substances. As of 1997, only seven Multilateral
Fund projects had been completed and they phased out use of 1,240 tons of ozone-depleting
substances. Enterprises that have changed to non-CFC technologies without Multilateral
Fund support have phased out about 800 tons of CFCs.
Despite the Multilateral Fund projects, most of the 1400 enterprises in the foams
sector that once used CFCs still do so; only about 70 of these enterprises (5%) have changed
or are changing to non-CFC technologies. Total CFC consumption in the foams sector
increased between 1991 and 1995 (see Table 2). The 1995 increase was related to a rise
in demand for commercial refrigeration and for rigid foam. There was a drop in 1996, and it
may have resulted from the closure of unprofitable enterprises and the completion of projects
involving use of CFC substitutes. CFC consumption in 1997 was 10,000 tons more than that
of 1991. Why have so few enterprises in the foams sector changed to cleaner technologies,
and what has motivated the enterprises that have changed?
Table 2 CFC Consumption in the Foam Sector
1991 1992 1993 1994 1995 1996 1997
[Consumption 113,200 | 15,600 119,400 | 22,500 124,700 120,900 | 23,900~|
Source: PIO (1997) and SEPA (1998). Data are rounded.
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3.2 Incentives for Compliance
In contrast to the household refrigeration sector, market demand for foam produced
without CFCs is weak, and the main motivation for companies to switch to non-CFC
technologies is the advantage of financial and technical assistance from the multilateral fund.
Six of the seven foam manufacturing enterprises we visited indicated that receiving Multilateral
Fund grants was their most important reason for shifting to non-CFC technologies. Moreover,
of approximately 70 foam manufacturers that have adopted or are adopting non-CFC
technologies, 54 used Multilateral Fund money. Many firms in the foams sector have few
financial resources and low technical capabilities, and the Multilateral Fund provides them
with a means to bring in new production technologies. Without the assistance provided by
the Multilateral Fund, some of these enterprises would not have adopted non-CFC
technologies because they lacked both the incentives and the capabilities to do so.
Most of the foam manufacturers that changed to non-CFC technologies without
Multilateral Fund assistance were motivated by decreased production costs. They adopted
methylene chloride as a substitute for CFC 11, and butane as a substitute for CFC 12. If
China had not ratified the Montreal Protocol, those enterprises would probably have continued
to use CFCs, because methylene chloride is highly toxic and butane is flammable and
explosive. After China ratified the Montreal Protocol and it became clear that CFCs would
be eventually phased out, the price of CFC 11 increased from 9 yuan/kg to 14 yuan/kg. By
comparison, methylene chloride was priced at about 9 yuan/kg. Also, the price of butane
was lower than that of CFC 12. The use of these substitutes involves no major changes in
production equipment.
Interestingly, 44 of the 54 foam enterprises that received Multilateral Fund money
for investment projects utilized either methylene chloride or butane as CFC substitutes.
Proposals involving these substitutes were routinely approved by the Multilateral Fund
Executive Committee because they were less costly than other non-CFC technologies.
These 44 enterprises were motivated to change for two reasons: they received Multilateral
Fund money and they decreased production costs. Some of the firms that switched to
methylene chloride or butane without Multilateral Fund grants were unable to satisfy
Multilateral Fund criteria, typically, because the firms were very small. A number of firms
that paid for non-CFC substitutes on their own were simply unaware of the Multilateral Fund.
Many firms that switched to methylene chloride or butane on their own failed to
invest in adequate ventilation systems and other required safety measures. In some
instances, costly fires broke out. Firms that used Multilateral Fund money to adopt
methylene chloride or butane did not experience safety problems, because the Multilateral
Fund provided funds sufficient to cover required safety measures. The need for new ventilation
systems and other measures helps explain why so few enterprises adopted the methylene
chloride or butane on their own even though production costs could be lowered. Many firms
felt that the (unsubsidized) switch to methylene chloride or butane was not economically
beneficial when the cost of adequate safety features was included.
3.3 Barriers to Compliance
Several factors explain why most foam enterprises have not changed to non-ozone-
depleting substance technologies even though production cost could be cut by making the
change. The cost of ventilation systems has already been noted. In addition, the absence
of consumer demand for foam products manufactured without CFCs means enterprises have
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ZHAO, JIM/N AND ORTOLANO, LEONARD 473
no incentive to change. Moreover, lack of access to information and technology, and
insufficient financial resources and technical skills impeded the ability of small foam
manufacturers to access the Multilateral Fund and thereby make technology changes.
3.3.1 Market Demand for Foam Products
China's foams sector primarily supplies the domestic market. Since the early
1990s, China's polystyrene and polyethylene industries have grown rapidly to meet packaging
needs for food, instruments, and handicrafts. In addition, polyurethane industries have grown
to keep pace with rising demand for commercial refrigeration equipment, and the
development of automobiles, and building materials. In response to the increased demand
for foams between 1991 and 1997, many new Township and Village Industrial Enterprises
were formed. In addition, numerous firms existing in 1991 were able to increase their outputs
rapidly because they had been operating far below full capacity.
The sharp increase in the output of foams was accompanied by a corresponding rise
in consumption of CFCs in the foams sector. This occurred because both individual
consumers and foam consuming industries made their purchasing decisions without any
concern for the CFC issue.
3.3.2 Lack of Access to Information and Technology
One reason so few firms adopted CFC substitutes is that small Township and Village
Industrial Enterprises dominate the forms sector and many of them have little access to
information about the ozone depletion problem, the Montreal Protocol, the Multilateral Fund,
and alternatives to CFC-based foam manufacturing technologies. Most of these small firms
serve local markets and do not have access to information outside their areas.
Under China's centrally controlled administrative system for implementing the
Montreal Protocol, government ministries coordinate ODS phaseout activities in industrial
enterprises. SEPA and the Plastic Industry Office have organized workshops and seminars
about CFC substitution and Multilateral Fund application procedures. The Plastic Industry
Office also publishes a quarterly newsletter, CFC Substitution, describing CFC-reduction
technologies. Because no formal connection exists between ministries and enterprises
owned by township governments and village committees, ministries have difficulty in keeping
these enterprises informed. Township governments and village committees, which own most
of the Township and Village Industrial Enterprises in the foams sector, are outside the vertical
hierarchies under industrial ministries, and they have had little involvement with ODS
reduction activities. Township and Village Industrial Enterprises are generally unaware of
CFC Substitution and events organized by SEPA and the Plastic Industry Office. This is
particularly true for small Township and Village Industrial Enterprises dispersed throughout
hard to reach rural areas.
3.3.3 Insufficient Financial and Technical Capabilities and Shortage of Multilateral
Funds
Even though the cost of producing foams using methylene chloride or butane is lower
than using CFC 11 and CFC 12, most small- and medium-sized foam manufacturers did not
switch to these non-ozone-depleting substances. As noted above, production costs are
lower using methylene chloride or butane, but required safety measures using this technology
involve offsetting costs and risks. This is one barrier to change. Another barrier to making
this technology change was enterprises' limited resources. Because staff in small foam
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enterprises have modest technical skills, they often focus on routine operations required to
meet production targets, and they avoid undertaking new activities such as ozone-depleting
substance phaseout projects. Moreover, some of these firms are barely profitable, and they
resist changing existing operation methods and technologies out of fear that they would be
driven out of business. Some of these enterprises adopted a "wait and watch" policy, hoping
to identify a workable non-ozone-depleting substance technology that involves minimal risk.10
Small- and medium-sized foam manufacturing enterprises also have problems in
accessing Multilateral Funds. For example, the Multilateral Fund requires a proposed project
to be cost effective i.e., the project must attain a given level of ozone-depleting substance
reduction at minimum cost. Small- and medium-sized foam enterprises have difficulties
meeting this criterion because the cost per unit of ozone-depleting substance reduction is
high compared to unit costs of ozone-depleting substance reduction at a large foam
company. In addition, small foam manufacturers are often incapable of preparing project
proposals in the manner and format prescribed by the Multilateral Fund. Also, small firms
typically have problems coming up with funds to cover costs not defined as incremental by
the Multilateral Fund Executive Committee. Foam manufacturers that have received
Multilateral Fund grants are relatively large, with production capacities of more than 1000
tons annually. None of the more than 1,000 small firms in the foams sector have received
Multilateral Fund assistance.
Some foam manufacturers believe the lack of adequate money in the multilateral
fund has slowed the shift to non-CFC technologies in their sector. During the period from
1991 to 1996, companies manufacturing foams received only 23% of the Multilateral Fund
money targeted for foams in China's Country Program.11 A number of firms that submitted
applications to Multilateral Fund received no support because of the shortage of money in
the fund. Some enterprises that received Multilateral Fund money to change to methylene
chloride or butane technologies indicated that the Multilateral Fund Executive Committee
preferred to support these technologies because of their low cost. These enterprises
preferred other technologies such as those involving CO2 , because they would be free of
safety problems and the foams produced have a higher quality.
As in the case of refrigerator companies, foam manufacturers have been stymied
by the Multilateral Fund's complex application procedures. Of the 54 investment projects
funded by the Multilateral Fund in the foams sector, only three had been completed by the
end of 1996. Managers at each of the seven foam manufacturing companies we visited
complained about administrative hurdles and technology transfer problems, including the
Multilateral Fund Executive Committee's willingness to approve the transfer of obsolete CFC-
reduction methods rather than paying for up-to-date technologies. The managers also noted
difficulties in finding appropriate technology suppliers. However, based on our interviews,
technology transfer presented fewer difficulties in the foams sector than it did in the household
refrigeration sector. This may be because the technology used by the foams sector is
relatively simple.
4 COMPARISON OF PERFORMANCE IN THE TWO SECTORS
The household refrigeration sector has outperformed the foams sector in compliance
with the Protocol. By the end of 1997, over two-thirds of the production lines for household
refrigerators had been changed to non-CFC technologies or were in process of changing,
while about 95% of foam manufacturing enterprises (including new enterprises) still used
CFCs. What factors contribute to this difference in performance?
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ZHAO, JIMIN AND ORTOLANO, LEONARD 475
4.1 Demand Patterns and International Trade
Preferences of consumers in European markets along with requirements from
international trading partners motivated the initial move to reduced-ODS technologies in
China's household refrigeration sector. These factors, plus the influence of multinational
corporations that began manufacturing refrigerators in China pushed Chinese refrigerator
firms to cut their use of CFCs. Even Chinese manufacturers that sold only in China's
domestic market for refrigerators and freezers felt they had to adopt reduced-CFC
technologies to compete. Corresponding market pressures for change did not exist in the
foams sector: the influence of international trade and multinational corporations in the foam
sector is minimal, and consumers have not expressed a preference for foams manufactured
without CFCs. The experience of refrigerator manufacturers supports the view that
international trade can have beneficial environmental consequences through its effects on
the technological characteristics of production, and that multinational corporations can be
effective in transforming technology when they begin manufacturing in developing countries.12
4.2 Industrial Structure
The household refrigeration sector contains only about forty firms; most of them are
large and a notable fraction are foreign or joint-venture enterprises. Because of the small
numbers involved, it is easy for enterprises and industrial ministries to exchange information.
In addition, refrigerator manufacturers generally employ imported, post-1980 technologies,
and their strong financial and technical capabilities allow them to either implement
technological changes on their own or satisfy Multilateral Fund funding criteria and receive
Multilateral Fund grants.
In comparison, the foams sector includes over 1,000 small-sized enterprises, many
of which are small Township and Village Industrial Enterprises scattered in rural areas. These
enterprises have little access to information about the Montreal Protocol from industrial
ministries, and they lack the technical skills and financial resources to do research, adopt
new technologies on their own, and compete for Multilateral Funds.
4.3 Roles of the Montreal Protocol
One thing manufacturers of foams and household refrigerators have in common is
the Multilateral Fund. For firms in the foams sector, the Multilateral Fund provides a key
incentive for adopting non-CFC technologies. In contrast, refrigerator manufacturers are more
motivated to change by market forces. They take advantage of Multilateral Fund grants, but
the availability of grants is not the key stimulus for adopting cleaner technologies. Indeed,
because of difficulties some household refrigerator companies have had with Multilateral
Fund application procedures and problems in negotiating with technology suppliers, several
of these companies question whether the Multilateral Fund has speeded the adoption of
cleaner technologies within their sector. Managers within the foams sector have also
complained about the Multilateral Fund, particularly the complex application procedures and
the shortage of money. However, the importance of the Multilateral Fund grants in motivating
change in the foams sector is notable, since many firms in that sector see no other reason
to switch to non-CFC technologies.
The Montreal Protocol's influence in China extends the Multilateral Fund. The CFC
phaseout requirements in the Montreal Protocol caused some European nations to impose
restrictions on refrigerators manufactured using CFCs. This requirement, which was
manifested in the context of environmental labeling restrictions, was a major force in causing
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some Chinese refrigerator manufacturers to stop using CFCs. An analogous effect in creating
markets for non-CFC products did not take place in the foams sector. Arguably, the overall
influence of the Montreal Protocol in promoting cleaner technologies has been weak
because China has until 2010 to eliminate CFCs. Since firms have over a decade to meet
the 2010 target, the pressure caused by the phaseout requirement has not been intense.
5 POLICY IMPLICATIONS
Because our analysis includes only two sectors it does not allow us to reach general
conclusions. However, our results suggest some changes that could be made to enhance
the compliance with the Montreal Protocol. One such change concerns the allocation of
Multilateral Funds. In China, refrigerator manufacturers that were motivated to adopt cleaner
technologies in response to consumer demand received a notable fraction of Multilateral
Fund money distributed in China. In contrast, small and medium-sized foams
manufacturers, which see little financial advantage in eliminating use of CFCs, received
relatively little Multilateral Fund money. A change in the allocation of Multilateral Fund money
to favor firms that are not otherwise motivated to adopt reduced-CFC technologies might prove
more effective. A simplification of Multilateral Fund application and disbursement procedures
would also enhance the fund's influence. Another way is to augment resources used to
provide information to Township and Village Industrial Enterprises that use CFCs. Experience
with the foams sector demonstrates that many Township and Village Industrial Enterprises
were completely unaware of the Montreal Protocol, and thus the Multilateral Fund grants
could not possibly influence their behavior.
Finally, our results for the household refrigeration sector highlight the importance
of the media as an instrument for influencing consumer demand for environmentally friendly
products. The results also show how quickly enterprises can move to cut their use of ozone-
depleting substances if the market signals are right. The environmental awareness of most
Chinese citizens is quite low, but the government is well positioned to change this by using
the media to promote environmentally friendly products and enhance the public's
understanding of environmental problems. In the end, consumer demand may prove to be
the key force in moving Chinese enterprises to comply with the Montreal Protocol.
REFERENCES
1 The basis for the Multilateral Fund is contained in Article 10 of the London
Amendments to the 1987 Montreal Protocol. These amendments were developed
at the Second Meeting of the Parties to the Montreal Protocol held in London in
June 1990. The Multilateral Fund Executive Committee has developed categories
of costs defined as incremental in "Indicative List of Categories of Incremental
Costs." For more information about the Montreal Protocol and the Multilateral
Fund, see Benedick, R. E. 1998 Ozone Diplomacy: New Direction in Safeguarding
the Planet, Enlarged edition, Cambridge MA: Harvard University Press; Multilateral
Fund Secretariat, 1997, Multilateral Fund for the Implementation of the Montreal
Protocol: Policies, Procedures, Guidelines and Criteria, Nairobi: UNEP.
2 A chemical substance's effect on the ozone layer is measured by its ozone
depleting potential, a numerical estimate of the total quantity of ozone destroyed
by a given mass of the substance over its entire atmospheric life. OOP is the
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ZHAO, J/MIN AND ORJOLANO, LEONARD 477
ozone depleting effect of 1 kg of a chemical relative to 1 kg of CFC 11. For
example, halon 1211 has an OOP of 3 because it is three times more effective in
destroying the ozone layer than CFC 11.
Information about the household refrigeration sector is collected from personal
interviews and referred to the following materials. Chinese Household Electrical
Appliance Association (CHEAA), 1995, ODS Reduction Strategies for Household
Refrigeration Sector (Bingxiang hangye Chouyang haosun wuzhi xiaojian zhanlue),
Beijing: CHEAA; Office of Household Electrical Appliance Industry (OHEAI), 1997,
Draft Progress Report on ODS Reduction in the Household Refrigeration Sector
(bingxiang hangye chouyang haosun wuzhi xiaojian jinzhan baogao).
BeijingrOHEAl; National Environmental Protection Agency (NEPA), 1993, Country
Program for the Phaseout of ODS under the Montreal Protocol (zhongguo xiaojian
shouyang haosun wuzhi guojia fangan). Beijing: NEPA; and NEPA, 1998, Update
of China's Country Program for Ozone Depleting Substances Phaseout (draft),
Beijing: NEPA.
French, H. F. 1997. "Learning from the Ozone Experience." In Brown, L. R.,
Flavin, C. and French, H. Sfate of the World. New York: W.W. Norton &
Company.
In March 1998, as part of a major restructuring of government agencies, NEPA was
upgraded to a full ministry and renamed as the State Environmental Protection
Administration (SEPA). For events that occurred before March 1998, we use
NEPA instead of SEPA.
Xia, Q. and Liu, Z. 1995. Environmental Labeling (Huanjing Biaozhi). Beijing:
China Environmental Science Press. Xia, Q. and Zhao, J. 1999. "Environmental
Labeling Program in China." Environmental Impact Assessment Review
(forthcoming).
Some analysts argued that the Montreal Protocol's restrictions on a China's ability
to export goods produced using CFCs would not influence its refrigeration sector
(e.g., Getz, K. A. 1995. "Implementing Multilateral Regulation—A Preliminary
Theory and Illustration." Business & Society. 34(3): 280-316). According to this
view, China would continue to use CFCs in refrigerators because China's
enterprises were primarily interested in providing a means of food preservation for
China's population, not in exporting refrigerators. As demonstrated below, this
argument is not supported by the facts.
In China, enterprises producing PU foam panels for use in household refrigerators
and freezers are categorized as part of the household refrigeration sector, not the
foams sector. Other foam producers include firms that manufacture molded
expandable polystyrene (EPS) and polyvinyl chloride(PVC) foam. However the
production of EPS and PVC foams does not involve use of substances controlled
by the Montreal Protocol. Information about the foam industry is collected from
personal interviews and from the following materials: Plastic Industry Office (PIO).
1997. Draft Progress Report on ODS Reduction in the Foams Sector (paomo
hangye chouyang haosun wuzhi xiaojian jinzhan baogao). Beijing: PIO; and NEPA,
1998, see Endnote 3.
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9 In general, township and village industrial enterprises (TVIEs) are located in rural
areas, and the majority of their investment funds come from rural collective
organizations or farmers. Currently TVIEs are located in almost every town and
village of the country and are involved in most sectors of the national economy.
They are often supervised by the township governments and village committees
that own them.
10 Hu, S. 1995. ODS Reduction in China's Small and Medium Enterprises, UNEP
Round Table Discussion on Knowledge Sharing Networks for ODS Phaseout.
Washington D.C.
11 Center for Environmental Sciences. 1998. Review of the Implementation of
China's Country Program for ODS Phaseout (draft). Beijing: Beijing University.
12 Johnstone, N. 1997. "Globalization, Technology, and Environment." In
Globalization and Environment—preliminary perspective. Paris: OECD.
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WORKSHOPSC: ILLEGALSHIPMENTSOFDANGEROUSCHEM/C/US 479
WORKSHOP 5C
ILLEGAL SHIPMENTS OF DANGEROUS CHEMICALS
INCLUDING PESTICIDES
Much attention has been paid to enforcement of international environmental agreements and
related domestic requirements governing the shipment of hazardous waste. Less attention
has been paid to issues related to enforcement of requirements related to import and export
of dangerous chemicals, including pesticides, that may not qualify as hazardous waste under
international conventions or perhaps are mischaracterized so as not covered by those
conventions. Such materials thought to be raw materials, recycled and product which are
dangerous. Such may be the case with pesticides, with recycled scrap metal which contains
radioactive substances, etc. Discussions drew upon the technical support document
prepared for the Fourth International Conference on "Transboundary Illegal Trade in Potentially
Hazardous (Waste, Pesticides, Ozone Depleting) Substances" as well as several papers
written for the Fourth International Conference Proceedings. While there may have been
some overlap with discussions held under workshop 5A, this workshop had a different focus.
2. Summary of Workshop Discussion, Facilitators: J. Amador, M. Mulkey;
Rapporteur L Spahr 481
Paper 1 for Workshop 5C and a list of related papers from other International Workshops
and Conference Proceedings are in Volume 1
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480 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 5C ILLEGAL SHIPMENTSOF CHEMICALS INCLUDING PESTICIDES 481
SUMMARY OF WORKSHOP: ILLEGAL SHIPMENTS OF DANGEROUS
CHEMICALS INCLUDING PESTICIDES
Facilitators: Marcia Mulkey, Julian Amador
Rapporteur: Linda Spahr
GOALS
Workshop discussions are designed to address the following issues:
Kinds of controls that countries have adopted in regard to import and export
of dangerous chemicals that are regulated outside of the framework of the
Basel Convention.
Status of compliance with such requirements and kinds of problems
encountered in gaining compliance.
How nations are ensuring they know of shipments with potential environmental
hazards.
Enforcement successes and failures and what factors contributed to success
or failure.
Identification of actions nations may be able to take to enhance the exchange
of information and successful detection and enforcement against illegal
shipments.
1 INTRODUCTION
Much attention has been paid to enforcement of international environmental
agreements and related domestic requirements governing the shipment of hazardous waste.
Less attention has been paid to issues related to enforcement of requirements related to
import and export of dangerous chemicals, including pesticides, that may not qualify as
hazardous waste under international conventions or perhaps are mischaracterized so as not
covered by those conventions. This workshop was designed to address^and consider the
following issues:
• Kinds of controls that countries have adopted in regard to the import and export
of dangerous chemicals that are regulated outside of the framework of the
Basel Convention.
• Status of compliance with such requirements and kinds of problems
encountered in gaining compliance.
How nations are ensuring they know of shipments with potential environmental
hazards and how this may change under the new Prior Informed Consent
agreement (PIC).
Enforcement successes and failures and what factor contributed to success
or failure.
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482 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AWD ENFORCEMENT
.Identification of actions nations may be able to take to enhance the exchange
of information and successful detection and enforcement against illegal
shipments.
2 PAPERS
Two papers were written specifically for this workshop. One author developed a topic
paper associated with the illegal shipments of dangerous chemicals including pesticides and
another makes reference to actions through regional cooperation in North America. They
are presented in the Fifth International Conference on Environmental Compliance and
Enforcement Proceedings, Volume 1:
Solid Enforcement of New Substances in Europe (SENSE), Spelt, C.
The North American Agreement for Environmental Cooperation: A Regional
Framework for Effective Environmental Enforcement, Duncan, Linda F.
Several papers relating to the topic were published in the Fourth International
Conference Proceedings. In addition, a technical support document was prepared fro the
Fourth International Conference on Transboundary Illegal Trade in Potentially Hazardous
(Waste, Pesticides, Ozone Depleting) Substances."
3 DISCUSSION SUMMARY
The participants identified a variety of factors which make it particularly difficult to
control illegal shipments of dangerous chemicals and pesticides.
The term "illegal" is difficult to define. Sometimes shipments may be legal,
but the purposes for which a substance is shipped—the end use—may be
illegal because users do not use the substance in a lawful manner.
Lack of adequate regulations and controls within particular countries.
Lack of standardized regulations about what substances—particularly,
pesticides—are unlawful among different countries. There may be huge
differences among countries within particular regions of the world.
Labels, safety warnings and instructions for use of products may be in different
languages. Items sent from a manufacturing country may not be
understandable to an importing country. This affects government's ability to
identify them, and the user's ability to safely usse them.
Inadequate resources and technology to test substances, to independently
determine their safety and proper usage.
Inadequate information about the amount of pesticides and 'herbicides being
used, the effectiveness of the products, how long they have been used and how
. long they should be used.
• Pesticides are being shipped in more concentrated form. While this saves
money be making them cheaper to ship, it also makes the smaller physical
packages harder to detect and therefor harder to regulate.
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WORKSHOP SUMMARY: 5C ILLEGAL SHIPMENTSOF CHEMICALS INCLUDING PESTICIDES 483
3.1 Safety and Public Health Issues
The absence of adequate government testing, understandable labeling, usage
protocols and training requirements presents significant health and safety risks in the
importing countries.
Dangerous chemicals are used without personal protective equipment
necessary to protect workers.
Pesticides are used in unsafe concentrations, endangering workers as well
as the community.
• Members of communities use "empty" containers to carry drinking water and
food products, leading to the ingestion of the chemicals shipped.
Dangerous herbicides, sometimes used to control illegal drug production,
unintentionally contaminate food and water supplies. •
The cost of disposal of obsolete pesticides is so high that they are stored, or
continue to be used, in a manner that poses health and safety threats to the
community.
3.2 Legal and Political Issues
Much of the discussion centered around the fact that it is lawful in some
industrialized nations to produce pesticides and herbicides which are banned from use in
the manufacturing country, so long as they are destined for export to other nations. In most
cases the importing countries are developing countries, without the resources or technology
to independently test those substances and make judgments about their safety.
The need for agricultural production in those importing countries sometimes makes
it difficult to enact regulations to limit or ban the use of dangerous pesticides. International
pressure to control illegal drug production, often as a condition of financial aid, may force
countries to use crop eradicating herbicides which endanger their citizens. The financial
rewards from trading in dangerous chemicals and pesticides pose further disincentives to
banning them.
When no laws prohibit shipment of dangerous pesticides and other substances to
developing countries, those countries end up being used as "dumping grounds" for dangerous
chemicals.
4 APPROACHES AND RECOMMENDATIONS
4.1 Addressing Inadequate Technological and Scientific Capacity
Specific suggestions were made for countries that have inadequate technological
and scientific support to determine safety of particular products:
Countries that lack independent testing capability can simply ban the use or
import of any substances that have been banned in another country.
• Countries can utilize existing databases, particularly through the Internet, to
determine what substances have been tested and what environmental, health
and safety impacts have been determined.
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484 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.2 Regional Networks and Compacts
Regional networks should be developed, and existing networks utilized, to focus on
the following:
Establish goals and strategies for developing appropriate laws, enhancing
enforcement capability and developing training activities.
Develop protocols and agreements. The Montreal Protocol on CFC's was
identified as a good model for networks to utilize.
Participants looked favorably upon "right to know" laws. Under Prior Informed
Consent agreements, some countries with no capacity to retest substances
simply rely on tests previously conducted by other countries. In negotiating
treaties for Prior Informed Consent or Persistent Organic Pesticides, it was
suggested that the pesticide industry should be involved.
Help countries develop more clear cut laws and regulations and increase their
enforcement capacity.
Countries with active enforcement programs have had success regulating the
activities of large companies. The most significant violations in those countries
now seem to be committed by smaller companies. The difficulties regulating
the import/export/trade activities of small companies mirror the difficulties faced
in bringing small manufacturing enterprises into compliance with other
environmental laws.
Help standardize laws and regulations regarding use, import, export and trade
in pesticides. Develop more clear cut and consistent definitions of what
chemicals and substances are dangerous. Identify which pesticides,
herbicides and other dangerous chemicals should be banned throughout
regions. Identify which substances should be subjected to particular levels
of control.
Networks should utilize already existing classifications of organizations such
as the World Health Organization, European Union, US Environmental
Protection Agency, and other environmental and health agencies of
industrialized nations.
Develop and implement training, on a regional basis, for inspectors and other
members of the regulatory enforcement community. Training should also be
developed for "users," in the safe handling and application of pesticides and
other dangerous chemicals, especially given the more concentrated forms in
which they are increasingly being shipped.
Encourage the development and enactment of national laws, and inclusion in
regional compacts and agreements, establishing the following:
Labels on dangerous chemicals, including pesticides, should be standardized
with multilingual safety and usage messages and symbols.
Shipping labels should be standardized with multilingual information.
Worker safety and training requirements.
Liability laws for injury caused by dangerous substances, providing the means
and forum to sue manufacturers or other parties violating regulatory provisions.
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WORKSHOP SUMMARY: 5C ILLEGAL SHIPMENTSOF CHEMICALS INCLUDING PESTICIDES 485
Import registries for dangerous chemicals. (While the participants agreed this
would be useful for a number of reasons, it was also seen as a wholly
unrealistic goal for some countries.)
Explore other possible solutions to illegal shipment problems, such as
licensing of shippers and transporters.
4.3 Political Solutions
The participants generally agreed that a global approach was necessary to address
the illegal shipment of pesticides and other dangerous chemicals. Most important, is the
need for a better flow of information. Specifically, participants felt EPA and government
agencies from other industrialized nations should share information which is now kept
confidential about the dangers of pesticides and other chemicals.
Some participants expressed very strong opinions that the legislatures of
manufacturing countries should prohibit the manufacture of substances that are banned from
use in their own countries. The possibility of utilizing conventions to place international
pressure on industrialized nations to enact appropriate laws was one idea that was discussed.
Another suggestion was to promote the role of NGOs to help ban dangerous
activities and assure information access through lawsuits.
A long term goal was for time schedules to be established among regions and
worldwide to end production of certain substances, including pesticides and herbicides.
5 CONCLUSION
This workshop was intended to focus on enforcement of laws regarding the shipment
of pesticides and other dangerous chemicals. It was immediately apparent, from the initial
comments of workshop participants, that the discussion would not develop as anticipated.
Overall, the existing laws and regulations do not provide an adequate foundation for
enforcement. The overriding concern of workshop participants was how to obtain information,
overcome political obstacles and develop laws and regulations which will protect the health
and safety of their citizens. Enforcement cannot be a concern until appropriate laws are
in place to enforce.
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WORKSHOP 5D: INTERNATIONAL ENFORCEMENT COOPERATION 487
WORKSHOP 5D
INTERNATIONAL ENFORCEMENT COOPERATION TO
PROTECT SHARED RESOURCES AND PREVENT
TRANSBOUNDARY POLLUTION
Many national borders follow along the course of important natural water bodies or other
natural features and resources. Efforts to protect these environments are either supported
or undermined by the actions of other nations. Several examples around the world illustrate
how countries have embarked upon major efforts to define common goals for the quality of
these resources, to harmonize management and regulatory approaches. Consistent with
each nation's sovereign rights a few of these efforts have followed through to actually
coordinate enforcement priorities, sharing of information, cooperative inspections and
resolution of enforcement actions. This workshop focused on the initiation and
implementation of enforcement cooperation to protect shared resources and prevent
transboundary pollution.
3. Summary of Workshop Discussion, Facilitators: H. £izkova, R. Kreizenbeck,
J. Peters, G. van Tongeren; Rapporteurs: H. Laing, D. Mowday 489
4. International Police Cooperation: Presentation of the ICPO-lnterpol and its
activities in preventing and combating environmental crime, Ekdahl, Jytte 495
Papers 1 through 2 for Workshop 5D and a list of related papers from other International
Workshops 'and Conference Proceedings are in Volume 1
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WORKSHOP SUMMARY: 5D INTERNATIONAL ENFORCEMENT COOPERATION 489
SUMMARY OF WORKSHOP: INTERNATIONAL ENFORCEMENT
COOPERATION TO PROTECT SHARED RESOURCES AND PREVENT
TRANSBOUNDARY POLLUTION
Facilitators: WorkshopSD: Ger van Tongeren, Helena Cizkova
Workshop5DD: Jit Peters, Ron Kreizenbeck
Rapporteurs: WorkshopSD: HarleyLaing
Workshop 5DD: David Mowday
GOALS
Discussions addressed the following objectives and issues:
Identification of where cooperative enforcement has been undertaken.
The context within which these activities were planned and carried out and what
factors led to the commitment to undertake these kinds of activities, in other
words, what the prerequisites were and whether there needs to be a broader
program of common goals for the resource before enforcement cooperation
could be considered.
Options considered, reasons for the type of cooperation selected. Discussion
should address issues considered such as confidentiality, rights to access,
different environmental regulatory requirements and/or legal systems,
resources, access to foreign courts.
Results and effectiveness of cooperative enforcement. What is its promise
and challenges that must be overcome for it to be more effective. What are
its limitations.
1 INTRODUCTION
The countries and groups participating in the discussions of international cooperation
represented a very wide range of views, experience and perspectives. This range included
countries with a long history of bilateral or multilateral cooperation backed up by treaties and/
or less formal documents to countries which were at the very beginning of the learning curve.
The reasons for this were various. For example, two or more countries may have had a long-
standing environmental problem that had led to cooperation for many years. Examples of
this would be the Great Lakes in North America, the Rhine in Europe and the Mekong in Asia.
Each of these literally screamed out for international cooperative efforts if any country was
to enjoy success. No country could do it alone. On the other hand, there were countries
where such problems had not emerged, or had only recently emerged and there was generally
not a history of intergovernmental cooperation.
A variety of implementation issues were discussed, perhaps the most difficult being
the issues relating to confidentiality of information and the role of the public and NGOs.
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2 PAPERS
Papers related to this Workshop include:
Development of Cooperation Between Central Asian Countries in Solving
Ecological Problems of the Aral Sea, A. P. Mironenkov
Problems of Transboundary Environmental Impact Assessment, S. FulQp
3 DISCUSSION SUMMARY
3.1 Defining Enforcement Cooperation
Enforcement cooperation was taken to mean a broad set of activities designed to
develop^ implement and constantly improve country enforcement programs. The term was
used to include worldwide cooperation such as that encouraged by INECE, UNEP, etc. down
to simple bilateral cooperation.
With regard to structure, both formal and informal arrangements are envisioned and
were discussed. On the formal end of the spectrum were the International Treaties dealing
with hazardous waste, ozone depletion, global warming, etc., and the cooperation required
to implement them. On the less formal end of the spectrum were simple contacts among
staff from different countries who may or may not be working to implement a written
agreement. The less formal cooperative efforts, it was suggested, could include single
telephone calls to warn of a problem that appeared to involve another country and informal
meetings, 'pizza parties,' as one participant called them, to share common experiences.
There was a general consensus that the more formal approaches and the ones with many
countries involved require much more effort and resources to implement, although there was
a strong feeling that more attention needs to be paid to the worldwide conventions.
The substance of the international cooperative efforts discussed ranged from
capacity-building, such as several countries sponsoring a training session, to dealing with
a specific environmental problem where enforcement could make an impact such as polluted
lake with pollutants entering from two or more countries.
Thus, international enforcement cooperation was seen as an essential ingredient
of every country's program that was worth the effort and that would pay off many times over
if it can be accomplished effectively. The following parts of the report highlight the issues
that were seen as most important in implementing successful environmental enforcement
cooperation.
A range of examples of environmental cooperation were offered:
The 1994 Nordic Environmental Agreement and joint citizen rights between
Sweden and Finland.
• The Canada/U.S. experience in transboundary cooperation.
Spain and Portugal's cooperation.
Joint River Basin Cooperation.
Cooperation in Southeast Asia in Forest Fires and transboundary hazardous
waste.
• International cooperation on wildlife.
• Transshipments of radioactive waste.
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WORKSHOP SUMMARY: 5D INTERNATIONAL ENFORCEMENT COOPERATION 491
3.2 Structural and Management Issues
There was considerable concern expressed about the ability of many of the
participants to undertake cooperative efforts on anything except relatively localized issues.
3.2.1 Staffing
The problems discussed included insufficient staff to focus on international
cooperation, no staff specifically assigned to the area of international cooperation, turnover
of knowledgeable staff so that progress is frequently lost when a single key person leaves
and finally, management changes wherein new managers decide not to emphasize
international work.
3.2.2 Organization
Several countries mentioned that they had internal issues to overcome. These
included lack of clarity as to who in the environment ministry is responsible for international
matters - is it best centralized or delegated out according to subject matter? In addition,
some participants noted that frequently the environment ministry will need the cooperation
of other ministries in order to manage effective cooperative programs with other countries
and these ministries may be unwilling or unable to participate.
3.2.3 Potential Solutions
Solutions to these problem areas were discussed. One key element appeared to
be the designation of at least one individual in the environment ministry to be responsible
for international programs. In addition, it was felt that it would be necessary for this person
to be below the political level, or to have someone who would not be likely to be replaced
involved, in order to maintain institutional stability in international work. One participant used
as an example of instability the fact that so many of the participants at the Monterey
Conference had not been at any of the earlier conferences, although there was also feeling
expressed that different people becoming involved was inevitable and could be beneficial as
long as there was someone, perhaps at a lower level, who was more likely to continue work
on international cooperation to serve as a focal point in the ministry.
The feeling was that it is preferable if the international cooperation work is centralized,
at least to the extent that there should be a coordinator. It was felt by most that without a
single person or place in the ministry to go to that international cooperation could still happen
but that it would be uneven and inefficient.
3.3 International Conventions
The majority of the participants felt that most international conventions and treaties
were not integrated with the enforcement and compliance programs. Problems ranged from
the lack of knowledge of the responsibilities agreed to in the international agreements to low
priority for them in the Ministry to lack of staff. This area was viewed by most as a very
challenging problem.
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3.3.1 NGO Role and Confidentiality
One useful suggestion that emerged was that NGOs can play an important role by
raising political awareness so that agreements that countries have signed get the proper
attention. There was overwhelming opinion that NGOs were essential to the process of
raising issues, developing the political will to act and involving the public in the development
of solutions. It was felt that NGOs could be critical in getting governments to recognize that
they had a common problem that required bilateral or multilateral cooperation. It was pointed
out that the rapidly expanding electronic communications, especially the Internet, would
prove to be extremely useful in getting information to governments, the public and NGOs.
With regard to confidentiality of information it was noted that there are many different standards
around the world with regard to what information is available and what information can be
released to the public. The rapid expansion of electronic media makes this picture even more
confusing as one can almost assume that a piece of information that becomes public
anywhere will soon be public everywhere. This may lead to a reluctance in industry or
governments to make information available thus making international cooperation more
difficult. Finally, there was overwhelming agreement that the most pressing environmental
issue calling for increased cooperation was hazardous waste shipment and disposal.
Finally it was expressed that there needs to be more participation during the
negotiation process by those who are going to be expected to implement the convention.
There was a general feeling that the Basel Convention on the Shipment of Hazardous
Wastes was of the most relevance to the enforcement and compliance agencies and thus
there was more focus on its implementation than the others, with exceptions depending on
particular countries' situations.
3.3.2 Funding
There was also a call for funding mechanisms to accompany the conventions so that
the implementation would not be left to an already overworked staff.
3.4 Role of INECE and Information Exchange Generally
INECE was seen as having a key role especially in the following areas:
3.4.1 Central Information Repository
There is a desperate need for a central information repository. With the expanding
use of the Internet, all but a handful of countries now have access although this does not
necessarily mean that all enforcement staff have access. Legislation was mentioned several
times as a key part of the data base. INECE is seen as the logical, in fact the only, locus
for this information to reside. This means that INECE will have to be equipped to have a
sophisticated electronic data management capability that is very user-friendly. It also means
that this staff will have to be experienced in enforcement, not just information managers.
3.4.2 International and Regional Meetings
The meetings, including the five international conferences and the regional network
meetings that are planned are viewed as vital. In particular, the regional meeting are critical
to the cooperation effort as it is more likely that mid-level managers with first hand experience
will be able to attend them. A concern was raised concerning who gets invited to the meetings
and what the decision process is. One country was unaware that their country had been
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WORKSHOP SUMMARY: 5D INTERNATIONAL ENFORCEMENT COOPERATION 493
represented at a regional meting because an official from a particular city government had
received the invitation. There was general agreement that this issue was up to each country
to manage internally and that all countries should keep in mind the need for continuity and
experience in selecting representatives.
3.4.3 Training and Capacity Building
One of the major substantive areas that virtually every country was interested in was
training and capacity building. It was felt that INECE has been doing a good job in this area
and that this activity should continue and expand.
3.4.4 Communications among Regions
Finally, INECE was seen as the focal point for communication among the regional
networks.
3.5 Key Substantive Issues Noted for Cooperation
Following is a listing of those areas that the participants saw as the most in need
of international cooperation, based on roundtable discussions:
Critical geographic areas that are experiencing problems such as Lake Aral
or the Mekong River. Watersheds were most frequently mentioned.
Information on the activities of multinational corporations that are operating,
and causing problems in, more than one country.
Cooperative efforts in dealing with oil spills in international waters or in ports
used by ships of many countries as well as exchange of information on the
movement of ships that may pose a particular threat.
Ecosystem-based efforts designed to protect important large or small
ecosystems. The oil and mining activities affecting the Amazon Basin were
mentioned as were the pollution problems on the Rhine and the Maas Rivers.
Inland and ocean fisheries management and enforcement.
Perhaps the most frequently raised issue, not surprisingly, was the shipment
of hazardous waste across borders. This was seen as an area where individual
contacts among field personnel could be especially useful. In addition, there
was a desire for an improvement in the technology available to all countries
to tack such shipments.
Port activities and cooperation on international shipping regard to bilge water
discharges and hazardous waste shipments.
4 CONCLUSION
There was a great deal of enthusiasm, virtually unanimous, expressed for the
concept of increased international compliance and enforcement cooperation. The primary
purpose and major goal of the discussions was how to actually make international
compliance and enforcement cooperation happen in practice. A general agreement was
reached that the major objective should be the exchange of information which can be made
available at all levels, and especially at the working level, to improve front-line performance.
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Systems which facilitate establishing personal contacts and channels of communications
were viewed as critical. Both formal and informal cooperation methods were discussed. The
regional networks which were discussed at the conference were seen as a key next step.
There was a long list of specific environmental problems that could benefit "from
increased cooperation as well as some examples of where cooperation is currently working,
although the latter were mostly bilateral. There was general support for the concept of INECE
as an umbrella organization which would attempt to pull the regional networks along and
serve as a central information repository and communications resource on a wide range of
issues. INECE was seen as a repository of information which, given the increasing electronic
capabilities in many countries, could be made broadly available.
At the same time there was a note of reality in the discussions of resources, political
and staff changes and the relatively low rank, in many countries, of the environment ministry.
International Conventions and Treaties were viewed as valuable but there was much opinion
that they were unknown to or ignored by, in many instances, the very people who should have
a role in implementing them. As a general conclusion, the participants felt that international
cooperation is essential and must be accomplished, whatever the obstacles may be, if the
global nature of many of our environmental problems is to be successfully addressed. The
issue of bilateral and subregional cooperation was raised several times as it was seen as
easier to accomplish and less expensive to implement. Specific problems which would
particularly benefit from multi-national cooperation were discussed. The role of countries
whose own cooperative structures were more advanced was noted. The thinking in general
was that they could be excellent models for newer cooperative groupings and could serve
as sources of information and provide other kinds of support.
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EKDAHL, JYTTE 495
INTERNATIONAL POLICE COOPERATION: PRESENTATION OF THE
ICPO-INTERPOL AND ITS ACTIVITIES IN PREVENTING AND
COMBATING ENVIRONMENTAL CRIME
EKDAHL, JYTTE
General Secretariat, ICPO- Interpol, Economic Branch, 200 Quai Charles de Gaulle,
Lyons, France 69006
SUMMARY
International Criminal Police Organization-lnterpol is the only global organization of
its kind and it has 177 member countries. The General Secretariat is located in Lyons,
France. The purpose of the Organization is to ensure and promote the widest possible mutual
assistance between all criminal police authorities, within the limits of the laws existing in
the different countries and to establish and develop all institutions likely to contribute
effectively to the prevention and suppression of ordinary law crimes, including environmental
crime.
Each member country has an Interpol National Central Bureau through which
international police cooperation is coordinated.
The Organization maintains a database on all environmental crime cases reported
to the General Secretariat as well as individuals and companies involved in this type of crime.
An Interpol Project group with participants from United States, Canada, the
Netherlands and Germany is preparing an Interpol Environmental Criminal Investigation
Training Program.
1 INTRODUCTION
Environmental crime is a relatively new area for any police force in the world and
consequently also for Interpol. This type of crime is extremely diversified and encompasses
a large number of related offences which can be covered either in specific, general or civil
legislation depending on the legal systems and type of crime committed in the countries
concerned.
Law enforcement agencies have encountered many problems when investigating
environmental crime cases. They have discovered that the information has to be collected
from many different authorities in the country such as the national management authorities
as well as from authorities at the local level. In some cases they need information or
investigative assistance from abroad and it is crucial to have one central contact point in order
to coordinate the international police cooperation in the various cases.
Cooperation at the national level between agencies responsible for environmental
enforcement and at international level as well is also essential for the success of the
investigation.
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2 STRUCTURE OF INTERPOL
Interpol is the only global police organization. It has 177 members. The purpose
of the Orgahizatibnls:
to ensure and promote the widest possible mutual assistance between all
criminal police authorities, within the limits of the laws existing in the different
countries; and
to establish and develop all institutions likely to contribute effectively to the
prevention and suppression of ordinary law crimes.
It is strictly forbidden for the Organization to undertake any intervention or activities
of a political, military, religious or racial character, as is clearly stated in the Organization's
Constitution.
Respect for these principles in day-to-day cooperation obviously means that Interpol
cannot have teams of detectives with supranational powers who travel around investigating
cases in different countries. International police cooperation has to depend on coordinated
action on the part of the Member States' police forces, all of which may supply or request
information or services on different occasions.
Each Member State designates an office, normally a part of the national police force,
as its National Central Bureau. The exchange of information is conducted through the
National Center Bureaus which monitor the flow of messages.
The General Secretariat is the permanent administrative and technical body through
which Interpol speaks. It implements the decisions taken by the General Assembly, the
Executive Committee and other deliberative organs. In order to coordinate and facilitate
various actions for combating transnational organized crime, the General Secretariat provides
the following services to the Member States:
• A criminal intelligence service, which assists Member States in identifying,
arresting and prosecuting international criminals. The General Secretariat
maintains its own criminal data base which contains nominal data of known
criminals as well as case summary and properties used in criminal cases. For
its content, the data base depends on the information provided by the Member
States. Analytical study of certain criminal cases conducted by a team of
experts is an integral part of the above-mentioned service.
• A liaison function, which facilitates the exchange of information between
Member States, implemented either through the numerous meetings/
conferences which the General Secretariat hosts or attends, or through the
efforts of its liaison officers well-informed both in respect of their special fields
as well as the regions they represent.
• A number of training courses, both at a regional and international level,
designed to assist Member States in improving their infrastructures regarding
communication and criminal investigation.
A technical support service which has not only developed an independent and
secure telecommunications network, but is currently in the process of
upgrading the systems in Member States, enabling them to send/receive
information as quickly and securely as possible.
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EKDAHL, JYTTE 497
The General Secretariat has also developed cooperation, and collaboration, with a
number of intergovernmental or non-governmental international organizations. Interpol is
always ready to take the advice of other organizations to enhance the international
cooperation among law enforcement agencies.
3 INTERPOL ACTIVITIES IN COMBATING ENVIRONMENTAL CRIME
It was as early as 1976 that the first Interpol Resolution on Environmental Crime was
adopted. It urged the National Central Bureaus to take action to combat the illegal traffic in
species of wild flora and fauna.
During the seventies and eighties, society focused more and more on environmental
issues and, because of this, the law enforcement agencies also became more involved with
environmental crime.
Following an Interpol resolution adopted at the Interpol General Assembly in 1992
it was decided to set up a Working Party on Environmental Crime.
The purpose of this Working Party is to bring together investigators and/or decision-
makers from member countries to identify the various problems that arise in connection with
environmental crime investigations and then to find possible solutions.
The Working Party could also consider making recommendations regarding the
adoption of legislation to combat environmental crime and the harmonization of existing
legislation.
The first meeting of the Working Party, which was held in September 1993 and was
attended by delegates from 11 countries, considered it necessary to create subgroups in
order to discuss the various subjects of environmental crime effectively.
The following key subjects in relation to environmental crime were identified during
the first meeting of the working party and subsequently the following subgroups were
established:
Sub-Group 1: Trans-border movement and dumping of waste products.
Sub-Group 2: Illegal traffic in real or purported radioactive or nuclear
substances.
Sub-Group 3: Illegal traffic in species of wild flora and fauna.
Sub-Group 4: Coordinating the results of Sub-Groups 1, 2 and 3.
One of the results of the Working Party has been the preparation of the "Eco-
Message" to improve the exchange of information in environmental crime cases as well as
the collection, storage, analysis and circulation of such information with the assistance of
the General Secretariat. It is simply a formatted message containing all relevant information
such as
• date of offence;
• place of discovery;
the actual waste product, radioactive/nuclear substances, specimen of seized
animal;
name and date of birth of the person arrested;
route of transportation;
modus operand!;
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498 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
• possible companies involved; and
assistance needed.
These "Eco-messages" are included in our criminal registration system at the
General Secretariat and thus the information is available for all law enforcement officials in
the member countries and can be used when looking for specific trends in cases and seizures
as well as for day to day work with operational cases and intelligence gathering. The
message can also be used for requesting assistance from other member countries.
The Environmental working Party has also initiated analytical projects which have
been prepared by our Analytical Criminal Intelligence Unit on the illegal traffic in reptiles and
the illegal traffic in nuclear and radioactive materials.
Since 1996 the Interpol General Secretariat has organized annually International
Conferences on Environmental Crime where law enforcement officers from our member
countries discuss issues to combat environmental crime as well as share experience and
expert knowledge. The 3rd International Conference on Environmental Crime was held in
October 1998.
4 INTERPOL ENVIRONMENTAL CRIMINAL INVESTIGATION TRAINING
PROGRAM.
Having recognized the importance and the need of special training for law
enforcement officers investigating environmental crime, a project group was established
during the 1st International Conference on Environmental Crime to prepare a training program
for law enforcement officers on investigating environmental crime.
The group is chaired by a representative from the US Environmental Protection
Agency and includes representatives from Environment Canada, the Royal Canadian
Mounted Police, the police in the Netherlands and Germany as well as the Interpol General
Secretariat. A project manager from Environment Canada is monitoring the project.
The training course is being finalized and the first training course is planned to take
place in the beginning of 1999. The training course will last 4 days and covers subjects on
officers' safety and survival, environmental awareness, recognizing environmental offences,
surface, water and groundwater pollution, air pollution and illegal land disposal together with
transportation and storage of hazardous materials.
A training video with several environmental crime scenarios will be included in the
material as well.
5 CONCLUSION
It order to combat effectively environmental crime it is important to cooperate at the
national level as well as international level with other law enforcement agencies and
competent authorities involved in this area.
Interpol provides the machinery for the international police cooperation which is
increasingly necessary in today's world. Criminals are not impeded by national frontiers and
we have to ensure that international investigations can be properly completed, criminal
activities can be stopped, disrupted or prevented, offenders can be apprehended and once
apprehended that they are properly dealt with by law.
If law-breaking goes unpunished, legislation remains theoretical.
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WORKSHOP5E: COLLABORATIVETARGETINGOF ENFORCEMENTON AN INTERNATIONAL SCALE 499
WORKSHOP 5E
COLLABORATIVE TARGETING OF ENFORCEMENT ON
AN INTERNATIONAL SCALE
The purpose of targeting enforcement resources, such as inspection and enforcement
response, is to ensure that scarce resources are employed for the greatest impact on short
term compliance, longer term compliance through deterrence and environmental results. This
workshop addressed the potential opportunities for international targeting schemes.
3 Summary of Workshop Discussion, Facilitator: P. Leinster;
Rapporteurs: N. Marvel; J. A. Semones 501
Papers 1 - 2 for Workshop 5E and a list of related papers from other Internationa!
Workshops and Conference Proceedings are in Volume 1
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BOO FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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WORKSHOP SUMMARY: 5E COLUBORATIVETARGETING 501
SUMMARY OF WORKSHOP: COLLABORATIVE TARGETING OF
ENFORCEMENT ON AN INTERNATIONAL SCALE
Facilitator: Paul Leinster
Rapporteurs: Nancy Marvel, Jo Ann Semones
GOALS
The discussion was designed to address the following issues:
The potential purpose(s) of targeting enforcement internationally on particular
economic sectors, pollutants, geographic areas, or types of violations.
The advantages and disadvantages of international targeting schemes.
For what types of activities and violations such schemes might be useful and
what is the expected impact.
How such targeting schemes might be developed. Who should be involved'
What information would be needed; How decisions might be made'
consensus, presentation of analysis, etc.; How targeting can be
communicated.
What follow up activities should result from targeting and whether they should
be tracked and communicated in some fashion.
If this is a good idea, what forum should be used or developed to pilot the
concept.
1 INTRODUCTION
Countries world-wide share concerns about ways in which to monitor the
environmental behavior of multi-national companies. Questions exist concerning the capacity
of countries to enforce, minimum standards to follow, companies setting their own standards
availability of data, and international cooperation. The discussion focused on the need for
creating international networks to share information and collaborate on the resolution of
mutual environmental problems.
2 PAPERS
A case study on the role of national and transnational corporations in the African
mining sector and the environment was prepared by E.H. Shannon. The paper underscores
the need for cooperative or bilateral efforts by both transnational companies and governments
to minimize negative environmental impacts. In addition, a paper on compliance and
enforcement of internationally agreed upon regulations in the international shipping industry
was prepared by Henk G.H. Ten Hoopen. The document discusses ways to ensure the
enforcement of existing regulations in the shipping industry on a worldwide scale
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502 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
3 DISCUSSION SUMMARY
3.1 Inconsistency in Applying Standards
While some multi-national companies have strong, consistent externally and
internally imposed environmental standards, others do not. While some use the standards
of their parent company, others use the standards of the host country where they are less
stringent. Some ignore all standards. This situation poses problems for all nations in
determining what minimum standards to apply to multi-national firms.
Suggestions to resolve this issue included requiring that the company obey the host
country's law or that of the company's origin, whichever is more stringent; developing and
maintaining primary contact with the parent company to seek mutual agreement on
standards; and developing an international inspector network to share information about the
performance of major multi-national firms from one country to another.
3.2 Transboundary Pollution Problems
The group shared examples of transboundary pollution problems. In Macedonia,
radiation contaminated powdered milk was discovered at the country's border. Proper
disposition of the material was complicated by questions as to whether the powdered milk
should be considered a hazardous waste or a food product, as well as by questions as to
who was the responsible party. In the Netherlands, many shipping problems revolve around
the oil pollution of the sea, ports and harbors. Although various countries have introduced
measures to control discharges into their own territorial waters, international measures are
less clear.
The group also shared examples of successful solutions to transboundary pollution
problems. In one case, waste had been sent to Mexico for recycling. Mexican and U.S.
officials became suspicious that it might be hazardous waste. Together, they arranged for
Mexican officials to bring it to the Border where U.S. officials took control of it and transferred
it to a hazardous waste facility. In Malaysia, where forest fires are a problem, a task force
was developed to create working plans for prevention, monitoring and surveillance, and fire
fighting.
3.3 Opportunities for Collaboration
The group explored ways to maximize opportunities to collaborate on multi-national,
regional and global issues of mutual concern. The discussion included ways to form
cooperative networks both formally and informally. These included developing a "rapid
response system" with colleagues in other countries; developing a variety of databases to
share laws, regulations, and information on companies; and developing ways to encourage
multi-national companies to share more information.
4 CONCLUSION
Many countries share concerns regarding the consistency of the operations of multi-
national companies and problems associated with transboundary pollution. Collaboration
is essential to address these issues. Solutions include working with multi-nationals to seek
their cooperation in operating consistently around the world; asking these companies to
produce world wide reports on environmental efforts; linking international performance with
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WORKSHOP SUMMARY: 5E COLLABORATIVETARGETING 503
incentive awards; developing a ranking guide on multi-national performance; providinq
company information over the internet; sharing each country's regulations over the internet
developing a database of inspectors; developing a list/registry of companies and how much
pollution they produce; and incorporating environmental concerns into international
investment agreements.. Most important, is developing a "rapid response system," or informal
person-to-person network to resolve problems. All agreed that this could be a primary role
for INECE and for the Regional Networks and meetings of the future
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504 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
THEME #6: BUILDING REGIONAL AND GLOBAL NETWORKS 505
THEME #6
BUILDING REGIONAL AND GLOBAL NETWORKS
A clear goal of INECE is to foster regional enforcement networks to complement the
environmental compliance and enforcement were essential parts of environmental
sTS Confer! th'\Sh°,U!d be a <°Pic ^ d-cussion at the UNCED in1992 and tha a
second Conference should be organized in two years with broader soonsorshin anri
participation. In 1992, participating countries worked to get w^S te™^e J? Sin*
21 on capacity building from the UNCED, which empowers? ^SgS^ona toSoS
STntyernS IT?*™ ^ enforcement ™«™°» building activitfes ShSy afte™he
o ganized I Euro±Cpmfent ™°rk^< th6 EUr°pean Comm™ and member states
^IS^^S?lf^r?IT tW°rk' IMPEU in Part inspired ^ "changes * the
4l™nX P" ^ Conference in Budapest, Hungary in 1992 participants from
38 countries and organizations agreed upon principles, definitions and a frameworkfor
iSaZs a±n? SET TT "P*™* Enviranmental Ce^ helped to IbatHShlr
lurooe and UNEP^H h P ^ n°n-9°vernmental officials within Central and Eastern
turope and UNEP and the European Commission were added as co-sponsors.
frr '" °aXaCa' MeXJC° in 1"4' an exP^ded Executive Planning
t ? f r en°e supP°rted development and delivery of more hands-on
v . W C0n fence Participants to apply these basic principles to common
v^ SPef tOPlfS l° bUi'd 3 base of inf°™ation and knowledge in those areas
and dn.Sir?:S?:hanael ^ ^ C°mP'eted rep°rts On industr-ial Compliance
I * 9 worksh°P materials. At the Third Conference regional
C°operatlon was described for North American under NAFTA as well as
f T^ H?^ A P'enary Pr°gram panel on WemaHonal networking and
prese"ted to stimulate ^terest to foster ongoing exchanges and capacity
envionment 321S y'a? gl,0ba"y baS6d UP°n natUral P^erships and common
^ericas ^S2L22 tS n Spontane°us|y durin9 'ntoimal sessions, participants from the
Sish a n^nS, ? th.e|Oaxafca Declaration, committing themselves to work together to
hasted to mcT orm Jl PH9 ° btU"? Pr0gramS' Subsecluentiy the Summit of the Americas
{
9 materials wiS
Conferei?ce was tne firs' t° structure regional meetings as part of the formal
9ram T9 10 'eaVe a 'aSting 'egacy fram the series of conferences thTough
owtlonH ih * * C° d 6XChange ~ 'eading t0 aPPr°Pria^ mechanisms for
-ooperation and shared progress globally across regions that transcend the biennial
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506 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
conferences. At the Conference, six regional meetings resulted in recommendations to
establish or strengthen such regional networks. Following the Fourth Conference an
expanded Executive Planning Committee decided to adopt a new banner for these
cooperative activities, INECE and to expand the support offered for ongoing exchange through
a twice yearly Newsletter, revised and more accessible INTERNET homepage, development
and dissemination of a Brochure and a program to foster regional and global networking.
The Fifth Conference was designed to provide the fertile ground and opportunity for participants
to adopt the most appropriate approaches for their own countries and regions.
Papers and presentations described international support networks for environmental
compliance and enforcement. Each paper and regional meeting addressed, among others,
the following issues:
• The genesis of the network and how it was established.
• What was/is involved in developing and maintaining the network.
Who is asked to participate and at what levels in the organizations.
Subjects the network covers.
• Vehicles used for exchange and means of communication used.
Topics on which exchange is taking place.
• How the network overcomes differences in language and legal or other
definitions of terms such as what constitutes a hazardous waste.
Future directions and changes anticipated for the network.
4. Summary of Theme #6 Panel Discussion, Moderator: J. van den Heuvel;
Rapporteur: C. Wasserman 507
5. Summary of Regional Meeting: Europe, Facilitator: S. Hay, L Miko, W. Petek;
RapporteurB. Goinga 525
6. Summary of Regional Meeting: Americas, Facilitators: A. Azuela, A. Shalders
Neto; Rapporteur: C. Jorge 529
7. Environmental Enforcement in Latin America and the Caribbean, Nolet, Gil 535
8. Summary of Regional Meeting: Asia and Pacific, Facilitator: A. Rasol;
Rapporteurs: J. Aden, R. Kreizenbeck 555
9. Summary of Regional Meeting: Africa and West Asia/Middle East,
Facilitators: A. Adegoroye, Y. Sherif; Rapporteur: L Spahr 559
10. Building Regional and Global Networks, Regner, Kia 567
Papers 1 - 3 for Theme #6 and a list of related papers from other International
Workshops and Conference Proceedings are in Volume 1
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THEME #6 PANEL DISCUSSION: BUILDING GLOBAL AND REGIONAL NETWORKS 507
Moderator: Jan van den Heuvel
Rapporteur: Cheryl Wasserman
GOALS
Regional meetings were designed to address the following issues:
The genesis of the network and how it was established.
What was/is involved in developing and maintaining the network.
Who is asked to participate and at what levels in the organizations.
Subjects the network covers.
Vehicles used for exchange and means of communication used.
Topics on which exchange is taking place.
How the network overcomes differences in language and legal or other
definitions of terms such as what constitutes a hazardous waste.
Future directions and changes anticipated for the network.
SUMMARY
Theme #6 building global and regional networks was divided into two sessions On
day four of the Conference in the afternoon, four successive panels on the Americas, Europe
Asia and Africa provided background and status information on existing and emerging regional
networks. General plenary discussion opportunities were offered following each panel This
was preparation for regional meetings held that afternoon and the following morning On day
five in the afternoon, selected spokepersons presented results of each of the regional
mee ings and there was a general discussion on the future of global and regional networking
forward3368 * ° aCti°nS ^^ beSn defined l° m°Ve 9'°bal and regional networkin9
1 INTRODUCTION
Mr- steven Herman opened the afternoon session emphasizing that the theme of
building regional and global networks as the essence of what we were doing at the
Conference. The question he posed is how do we do it and what do we do within them He
reminded participants of the discussions at the Fourth International Conference in Chiang
Mai, Thailand two years ago during which participants recommended that regional networks
be established to better enhance country environmental compliance and enforcement and
address regional and global environmental problems. We have had some success some
less than successful, and some have not developed as proposed. What have we learned
about the good reasons for success and good reasons forthose that have not moved forward?
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508 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
This is important for us to understand and address. Mr. Herman introduced the Theme #6
panel Moderator, Mr. Jan van den Heuvel who set the stage for the plenary panels, regional
meetings and reporting out on the final day in the afternoon.
Mr. Jan van den Heuvel noted that we have learned allot over the past few days and
had heard a lot of experiences and stories with differences but also similarities arid common
challenges. We now face a managerial challenge and that is how to make it happen. We
drew upon the conclusions in Chiang Mai that we should work together on regional networks.
These opening panels provide background on the status of regional networks, regional
problems which need cooperative solutions. After discussion the regional meetings were
held and then a second plenary on Theme #6 presented the results. The following summary
of the two plenary sessions and plenary discussions is organized around each of the four
regions, presenting in turn the background presentations on status, discussion during the
plenary, and closing plenary report out on the regional meetings.
2 EUROPE PANEL
2.1 Panel on the Status of Regional and Sub-Regional networks in Europe
2.1.1 IMPEL Network
2.1.1.1 Status of IMPEL
Ms. Waltraud Petek reviewed the status of the IMPEL network, the European Union's
network for the implementation and enforcement of environmental law. The European Union
is a supra national organization founded in a treaty among now 15 member countries
including Finland, Sweden, Denmark, the United Kingdom, Ireland, The Netherlands,
Belgium, France, Luxemburg, Germany, France, Spain, Italy, Greece, and Austria. The
European Union has its own body of law enacted by the Council of Ministers elected based
on the treaty. There are numerous laws most are directives which means they are framework
laws which must be implemented by the member states who are also responsible for
enforcement. There is no enforcement body of the European Union so there are no European
Union inspectors going to facilities. This is the context within which the IMPEL network
operates.
2.1.1.2 How IMPEL got started
An initiative in early 1990 by The Netherlands brought forward the idea of a meeting
on the implementation and enforcement of environmental law; IMPEL was first formed at a
meeting of Member States in Chester England in 1992. Its aims are to contribute towards
an effective and even implementation of environmental law and to promote enforcement within
member states. It is informal and not founded on the European Union's Treaties. Recently
IMPEL was recognized in several European Union documents starting with the 1992 5th
Action Program mentioning networks on environmental inspection and enforcement. In 1996
the European Union issued a communication and mentioned it and gave it a role. The Council
of Europe resolution specifically recognized IMPEL as a useful informal instrument for
improving and implementing inspection and enforcement interalia through exchange of
information and experience on different administrative levels. It specifically said that IMPEL
should play a role during the different stages of the regulatory chain, in particular, it should
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THEME #6 PANEL DISCUSSION: BUILDING GLOBAL AND REGIONAL NETWORKS 509
give advice on environmental compliance and enforcement. This set the stage for IMPEL
to broaden its purpose to different topics in environmental law and not just to enforcement,
but to policy issues throughout the regulatory chain from creation of legal instruments to
enforcement.
2.1.1.3 How Does IMPEL Work?
Plenary meetings are held twice a year co-chaired by both the European Union and
a member state which holds the Presidency, rotating every 6 months. The plenary is made
up of official national focal points designated for each country. It decides on strategic issues,
agrees on the budget and approves an annual workprogram of the Standing Committees.
There are two such Standing Committees: SC1 covers legal and policy instruments and
implementation issues; and SC2 covers technical practical applications, management
instruments, inspector exchange programs, inspection and enforcement functions. Under
each of the Standing Committees, separately or jointly, ad hoc workgroups are formed. Both
Standing Committees prepare workprograms and budgets and discuss project results.
Finally, a Secretariat has been set up with the important role of helping to prepare plenary
and Standing Committee meetings and to facilitate all activities and workprograms. The
Secretariat is hosted within the European Commission, DG-Xl. It is staffed by 2 staff of
member states with secretarial support of the European Commission. National coordinators
are designated by each ministry to be in charge of securing a good information flow to and
from IMPEL and member states. A Directory of Contacts is published. Human and financial
resources come from the Member States and the European Commission. Most projects
under IMPEL are co-financed by one or more of the Member States and the European
Commission. In 1997 the European Commission earmarked 500,000 ecu (about 600,00
USD) and in 1999 about 400,000 (about 450-470,000 USD) to IMPEL.
2.1.1.4 How is the Workprogram Established and What Kind of Activities are Included?
Each member state may propose projects at the Plenary session. Terms of
reference are drawn up for each project with a description, objectives, timetable, resources,
and indication of the outcome. An overview of past and current activities was provided,
including:
technical guidance on specific industries e.g. power plants, waste incinerators;
exchange on aspects of the regulatory process;
workshop on coherence of environmental regulation; and
comparison of enforcement arrangements within Member States.
Given the time constraints, Ms. Petek was able to describe only two examples of
specific projects which she considered most successful:
Inspector Exchange: is a week-long program organized by a Member State
with the participation of 2 officials from each of the other Member States to
exchange practices, problems, case studies and site visits. So far 14 such
exchanges have been completed and the first round should be completed by
next year. It has proven to be particularly useful in getting a lot of people in
contact with IMPEL.
Criteria for Minimum Inspections Standards: These criteria or minimum
standards for inspection across all the Member States was specifically called
for in the Resolution concerning IMPEL which asked it to develop these
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510 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
standards using a group of experts of Member States. These are now
published and the European Commission is now preparing a recommendation
of the Council of Europe to set up these minimum criteria based on how the
inspection function should be performed within Member States.
These are but two of the activities. There are several documents which can provide
more detail:
paper by Bestke Goinga on the IMPEL network is published in Volume 1 of
the Monterey Conference proceedings, page 717;
IMPEL Brochure;
Minimum Criteria of Inspectors; and
Spotlight: the IMPEL newsletter which provides highlights of both IMPEL and
member state activities.
2.1.2 ECA-INECE
Ms. Ruta Buskyte described the status of activities of ECA-INECE, one of the
youngest regional networks. The idea of establishing the new regional network covering
Central and Eastern Europe and NIS newly independent states of the former Soviet Union,
was agreed upon during meetings at the Fourth International Conference on Environmental
Compliance and Enforcement held in Chiang Mai, Thailand. A wide range of transboundary
issues echo the need for regional cooperation to address them including the transfrontier
movement of waste, discharges to common rivers and common seas, the movement of air
pollution, and other environmental problems cannot be solved separately without working with
each other. A first meeting with both Central and Eastern European countries and NIS was
held in May of 1998 in Vilnius, Lithuania. A short report on the status of the network and
of this first meeting was provided in the conference registration package. The Vilnius
meeting, following up on an offer made in Chiang Mai to host a first meeting, was supported
by the Ministry of the Environment in Lithuania and The Netherlands with support of the World
Bank and USEPA. The participants at the Conference came from 21 countries in the region.
They agreed on the need for informal networking to promote compliance and strengthen
enforcement of national environmental requirements and international environmental
agreements through networking, capacity building and cooperation.
The activities will be organized by a small Secretariat which is now under creation.
For better cooperation, national contact points may be nominated and more than 10 countries
have designated such points of contact. The main areas of focus include:
shared industrial problems;
• waste transport; and
natural resource use.
Specifically, in all focus areas they will share the non-compliance response,
enforcement tools, transboundary issues and permitting. They will seek fundamentally to
promote awareness and exchange information to strengthen existing enforcement tools,
develop new ones and train for capacity building.
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THEME #6 PANEL DISCUSSION: BUILDING GLOBAL AND REGIONAL NETWORKS 511
2.1.3 AC-IMPEL
Dr. Ladislav Miko described AC-IMPEL and its status. AC-IMPEL is by name and
content a sister informal network to IMPEL created for government bodies of 10 Central and
Eastern European countries plus Cypress. It started as an initiative of the IMPEL network.
Initiation meeting took place in Brussels in January of 1998, where the working group for
drafting terms of reference and preliminary working program for the year 1998 was agreed.
Its first Plenary meeting took place in Brussels in May of 1998 after participating in the
inspector exchange program in Luxemburg. The first AC-IMPEL exchange program took
place in Budapest, Hungary in 1998. The focus of AC-IMPEL activities is to review national
legislation and develop reports on progress in implementing European Union legislation in
each of the countries in line for accession into the European Union, referred to sometimes
as the approximation process. They adopted terms of reference and agreed to a
workprogram. At the meeting the European Commission expressed strong support. The
scope of environmental issues of concern in AC-IMPEL are broader than those of IMPEL as
they include nature conservation in addition to both technical and legal issues. The initiative
has a giant carrot in the entry requirements into the European Union at which point AC-IMPEL
will cease to exist and all further activities will be under the IMPEL umbrella.
The structure of AC-IMPEL was agreed upon at the first Plenary session, similar
to IMPEL but also more simple. The Plenary meets twice per year and connects the timing
to one of the inspector exchange programs. Hungary already hosted the first. Estonia hosts
the next program in December of 1998 and Poland and the Czech Republic will host in 1999.
Having a Chair of the meetings is complicated since there is no chief country. So it is up
to volunteers. There is always an IMPEL co-chair with a co-chair from AC-IMPEL changing
every half year.
The main work is carried out by the national coordinators. There is a small Secretariat
which for practical reasons is located in Brussels. There are also ad hoc workgroups. Right
now there are three sets of activities:
inspector exchange programs;
• training and information exchange; and
multilateral projects proposed by members and an opportunity to participate
in IMPEL projects.
Mr. Miko offered several discussion questions for consideration during the regional
meeting for Europe:
1) The role of AC-IMPEL in ECA-INECE given AC-IMPEL's orientation toward
IMPEL and yet the similarities of tasks and workprograms to ECA-INECE
2) Continuity in individual countries given the turnover in who comes to meetings
3) Financing of activities. It currently depends on support of the European
Commission for plenary and exchanges but supplements are needed by
individual member countries and from other donors as well.
A final paradox of the AC-IMPEL network is that it is time-limited since it disappears
when the accession countries join the European Union.
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512 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.2 Plenary Discussion Summary
A question was raised in connection with the Aarhus Convention and whether there
was room for NGOs in Europe's networks given their informality and flexibility. Ms. Petek
indicated that IMPEL is focused on the government authorities so far and that NGO
involvement has not been considered. She recognized the importance of partnership and
said that some activities were open but as an institution it is limited so far.
Mr. Dannenmeir inquired of Mr. Miko whether he had any solution to the problem of
turnover. Mr. Miko said he hoped that the regional meeting would address this but suggested
that from his perspective it is probably most important to identify the most concrete person
to invite in the first place. Ms. Petek indicated that this is not necessarily a bad thing since
it is good to get a broader reach by having different people exposed, so long as it does not
disrupt a specific short term project where continuity is needed for the result.
2.3 Results of the Europe Regional Meeting
Ms. Susan Hay reported on the results of the meeting which covered those within
and outside of the IMPEL, AC-IMPEL and ECA-INECE networks. She indicated that they
all agreed that the key to moving forward would be to set realistic goals and concentrate on
them. They also want to continue to seek low cost ways of communicating within the network
including a directory of contacts and use of the Internet. They also all need established
Secretariats, which need not be big but which would provide a focal point, and financed by
a member country or possibly by international donors.
Languages continue to be an issue. Within the European Community for example
there are 11 official languages but IMPEL currently employs just English. Within AC-IMPEL
there are another dozen and ECA-INECE probably another dozen still. There is no easy
solution given the financial and human resource implications of operating with multiple
languages. She indicated that they currently plan on relying upon the good will of individual
members to translate materials from English into their mother tongue. Good cooperation
has already taken place geographically with different legal orders to address shared resources
such as the Aral Sea so the language issue will likely always have to be addressed.
A second need is to strengthen networks and for this there is a need for a network
at the national level to ensure coordination among all involved in enforcement including
inspectors, customs officials and the like.
A third need is to avoid being overly ambitious. Take a step by step approach with
a limited number of projects. Regional cooperation needs to offer advantages, promoting
awareness and useful documents. A cross fertilization of ideas among networks is needed,
for example between IMPEL and AC-IMPEL.
In regard to future workplans, IMPEL itself needs to move back to its inspector
based grass roots activities. AC-IMPEL needs to focus on accession and approximation
of legislation and learning how to apply that legislation in practice by building capacity . ECA-
INECE needs to begin by compiling a list of contact points. INECE itself with the staff of
Jo and Cheryl need to continue to provide an overall umbrella and link, but can depend
increasingly on the work at the regional and national levels. Particularly useful to IMPEL is
the use of the homepage on the Internet and the international conferences at which they
continue to meet people and learn. Perhaps in the future it could be a slimmed down version
with representatives from the regions, and possibly every four years. The regions can provide
a focus for training and more in-depth on the group operations support.
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THEME #6 PANEL DISCUSSION: BUILDING GLOBAL AND REGIONAL NETWORKS 513
There was some discussion on the value of having an Europe-wide INECE umbrella
organization, which might include Turkey, Israel, Norway as well as Iceland etc. each of whom
did not fit neatly into the subregions or other groups. This umbrella group might also better
engage the NGO community.
2.4 Closing Plenary Discussion on Report of Europe Regional Meeting
A question was raised about whether these networks would include only government
or provide as well for NGO participation. Ms. Susan Hay indicated that this would be up to
each of the three existing networks as to whether NGOs might be observers or full members
of the networks.
3 AMERICAS PANEL
3.1 Panel on the Status of Regional and Sub-Regional Networks in the Americas
3.1.1 North American Enforcement Working Group: Commission for Environmental
Cooperation
Ms. Linda Duncan described the North American Enforcement Working Group as
one that mirrors IMPEL but with several remarkable and unique aspects including the fact
that it was established fully one year before IMPEL. First, although the North American
agreement to establish' the network is voluntary, the countries are under an obligation to
implement and enforce their environmental laws, so it is a product of both carrots and sticks.
The origins lie in the North American Free Trade Agreement, NAFTA, which had two side
agreements, one on cooperation in occupational health and safety and the other in
environment. The Commission on Environmental Cooperation which oversees
implementation of the side agreement on the environment is located in Montreal and staffed
by members from the United States, Canada and Mexico. The North American Enforcement
Working Group is one of the programs under the CEC. The need for a group was recognized
early by the CEC Secretariat as critical to carry out its responsibilities. But although the
CEC took steps to initiate the North American Enforcement Working Group, it is a network
directly created by senior officials of all 3 countries who were committed to move beyond
their bilateral work to trilateral cooperation. It was officially constituted in 1996 by the North
American Council of Environment Ministers. One important benefit of affiliation with the CEC
is that enforcers have direct access to the Environment Ministers. The 1997 policy
Statement by the Council reiterated their commitment to the essential responsibility of
government for the implementation and enforcement of environmental law. Another advantage
is funding. The governments of the three countries have provided three year funding through
the year 2001. The work on enforcement includes not only environmental pollution control
but also wildlife protection. Simultaneous with the Monterey conference there is the 5th
Conference in 4 years of the working group on CITES. Ms. Duncan indicated that several
reports are available to participants including:
Brochure on the North America Wildlife Enforcement Group, NAWEG.
Tracking and enforcement of transboundary hazardous waste including the
production of a directory of officials and review of constraints and issues.
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Environmental Management Systems and Compliance: an initial summary
report on the efforts by the three countries to assess together whether or not
various voluntary initiatives are really achieving compliance.
Indicators of Effective Enforcement: initiated to meet the obligation of the parties
to NAFTA to implement and enforce environmental law, the countries are trying
to define, in particular with the public, indicators of effective enforcement. A
public dialogue was held with participation as well by representatives of the
OECD and European Commission at the meeting.
Challenges in the future include:
responding to requests by state, provincial and tribal officials to join the effort;
desire to get the public more involved beyond the public dialogue; and
connecting to other networks around the globe and particularly within the
hemisphere.
Ms. Duncan indicated that all members of the North American Enforcement Working
Groups are looking forward to working with others within the Hemisphere and elsewhere.
3.1.2 Central American Commission for Sustainable Development: CCAD
Mr. Marco Antonio Gonzalez Pastora described the Central American enforcement
network as part of the workprogram of the Central American Commission for Sustainable
Development, CCAD. Beginning with some inspiring quotations from Napoleon, he noted
that many of the preceding presentations reminded him of a Napoleon quote: "In order the
win the war what we need is I'argent, I'argent, I'argent." He noted that a network is a lot of
holes and a lot of threads. That means you have space enough to pass and you have
something that unites you. The CCAD serves as a facilitator in the region to ensure that the
environmental law project for Central American meets two objectives: 1) upward enhancement
of environmental legislation; and 2) achievement of a high degree of enforcement of legislation.
Their task is one of promotion of a network of people in the region so they can learn from
each other in a flexible and open space. The entire effort is intended to deliver services.
The participants in the network include everybody with an interest in achieving the
objectives. This includes legal counsel to environmental institutions, private lawyers, NGOs,
The Meso American Association of Environmental Law (NAMADA), state attorneys ,
environmental attorneys, academia, legislators, judges and law students.
The services that are provided are several:
provide training opportunities in environmental law, particularly what CCAD
calls distance training for those people who lack the time or are not the right
age to go into formal training studies;
facilitate information exchange through the website's data centers, Compact
Disk with legislation and policy decrees;
• performa clearinghouse role so people who need assistance can be matched
with those who can provide training and assistance including in the past,
USEPA, PROFEPA (Mexico), Puerto Rico's Board of Environment, all of
whom worked with CCAD to deliver people to train; and
technical assistance in an efficient and cheap manner since there is little time
to deliver.
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THEME #6 PANEL DISCUSSION: BUILDING GLOBAL AND REGIONAL NETWORKS 515
The exchange of information and experiences is important as people realize that they
face the same problems and seek to find ways to solve them jointly. Prosecutors, and general
attorneys have an opportunity to work together on issues such as illegal smuggling of wildlife
CFCs or other prohibited substances.
Areas of focus include:
setting up systems to address transboundary impacts of pollution;
clarify concepts and rules, important for all institutions involved in enforcement
so they know what they are talking about. This is a facilitated process to put
everything together,
facilitate coordinating mechanisms regional and national agencies especially
those working in related fields such as the Ministries of Agriculture in regard
to animal and plant health, and the Ministries of Health;
promote enforcement pilot project training customs officials on the proper
interpretation of regulatory provisions now in Costa Rica and soon to be
expanded regionally for officers involved in implementation of CITES; and
facilitate participation of Central America in major conventions of the parties,
acting as a group in negotiations on climate change, biodiversity, and the like
to obtain the best advantage of participating as a whole.
In order to enforce you need a culture of enforcement, and Mr. Marco Gonzalez noted
that until citizens avoid crossing the street at a red light there is much work to do with all
sectors of society.
Three technical regional commissions have been established:
environmental impact assessment;
environmental auditing; and
legal advisors to environmental authorities.
These commissions have helped a lot because by allowing the key officials to work
together they can set up more effective regional programs.
Finally, about funding, these efforts have been possible thanks to the generosity of
USAID and USEPA.
Most recently a program to train judges has led to environmental law manuals for
each country, devised to be easy to use and to include tools to enforce environmental law.
In each of the countries in the region, environmental law is very spread out among sectoral
and national environmental laws and policies. It was a major effort to systematize rules,
penalties and authorities for this purpose. This was made possible by support from the
InterAmerican Development Bank with Dutch support. Now, with the support of Switzerland
they are developing 3 manuals: one on enforcement, one on efficient legislation, and one on
environmental laws in Central America.
In 1999 a major goal is to have established diploma and masters courses in
environmental law to create a critical mass of lawyers and enforcers who will have the needed
knowledge, skills and access to information to enhance performance.
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3.1.3 Caribbean Network: Creating CARIB-INECE
Mr. Vincent Sweeney described the status of building a network for environmental
law compliance and enforcement in the Caribbean. Mr. Vincent Sweeney is Director of the
Caribbean Environmental Health Institute, a regional intergovernmental organization of the
Caribbean Community created when they agreed originally to cooperate on trade and
economic development and it naturally expanded into cooperation on environment and health
cooperation. The Caribbean Community, a CARIB-INECE, set up a number of institutions
within the community to assist progress in these areas. The CEHI was created to provide
technical and advisory support to those countries which are part of the Community. There
is no CARIB-INECE yet and key parties within the region are talking about how to start.
Options recognize the need for a Secretariat in which a network might be housed. One
option is to house the network at the UNEP RCU in Jamaica responsible among other thing
for implementation of the Cartagena Convention whose jurisdiction includes countries around
the Gulf of Mexico in North, Central and South America as well. UNEP is a strong candidate
to Another option is to house the network at the CEHI or some combination of both or
other organization. The rationale for using CEHI is that there is a collaborative interagency
group now implementing the CIDS initiatives of the UN conference on Sustainable
Development of Barbados in 1994, including UNEP, UNDP, Economic Commission for Latin
America and the Caribbean, OAS, Caribbean Development Bank, and the Caribbean
Conference on Science and Technology. The work on the initiative reports directly to the CIDS
Bureau comprised of the Environment Ministers of the Caribbean. CEHI is also developing
a network for laboratory support for the region. An emerging issue is the creation of an
environmental law foundation with CEHI and with others in the region. The Caribbean is also
united through several important regional mechanisms, including the Cartagena Convention,
Caribbean water and wastewater management initiative and health initiatives as important
regional mechanisms.
Where do we go from here? Our next step is to leave the Conference with a torch
bearer who will be responsible for identifying the key parties and bring in the Council of
Ministers of Environment, Health since it will be new to many of them. They meet regularly
so there is great potential for moving forward.
3.1.4 FIDA: Hemispheric Network on Environmental Law
Mr. Eric Dannenmeir spoke on behalf of the Organization of American States (OAS)
in describing the Inter American Forum on Environmental Law, (FIDA-from the Spanish)
whose mission is to provide a network of environmental experts on environmental law, its
implementation and enforcement to support capacity building within the hemisphere. The
network was originally called for by participants at the Third International Conference in
Oaxaca, Mexico in 1994 and later in the Fourth International Conference in Chiang Mai,
Thailand in 1996 who then worked behind the scenes with their governments in the Americas
resulting in a commitment of the 34 heads of State at the Bolivia Summit in December of
1996 to develop the network. The commitment to develop the network of environmental
experts in consultation with the OAS is described within the Plan of Action for Sustainable
Development. Its purpose is somewhat broader than environmental compliance and
enforcement, focusing as well on the development of environmental law given the status of
needs in the region, although also implied in this is the need to develop requirements which
are enforceable. FIDA will serve as a focal point for cooperative efforts including environmental
enforcement and compliance. The OAS is a hemisphere wide political organization which
is now 50 years old with 34 active member states. OAS responded by engaging in an open
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and collaborative participatory process beginning with a meeting in Miami, Florida with
.experts from government, NGOs, academics and private partes. It also sought the views
of the region's InterAmerican Bar Association in a meeting in Lima in an informal dialogue.
It also studies existing networks such as INECE, CCAD, E-LAW as to what works and does
not work and conducted a regional survey to clarify priorities. Over 300 persons were sent
the survey and over half responded. By sector 34% were from government and international
organizations, the rest from the private sector and academia. Additional opportunity to have
a dialogue on the subject was provided by the CCAD at their meeting in Honduras. Out of
11 options, the top three priorities included:
law development and national model law formulation;
transboundary cooperation; and
environment and information exchange.
A formal proposal for FIDA, provides for a community of people devoted to the same
cause with open membership but provision for sectoral interaction and focus on 2 biennial
themes, one procedural and one media specific. Indeed the key to success of existing
networks appears to be keeping it small and maintaining a focus on concrete responses.
OAS is now in the process of seeking review of its draft blueprint charter and workplan. While
OAS is supporting initial funding of activities it is also seeking long term funds to maintain
and fully implement the network. To facilitate the exchange of knowledge and experiences,
FIDA is now in the process of identifying country focal points.
3.2 Plenary Discussion Summary
Mr. John Bonine mentioned that for 8 years the oldest network including individuals
from 50 countries has been supported. The network concept is different from an organization
and regular meetings. E-LAW Alliance Worldwide is able to set up networks on the Internet
within 1 hour as an ad hoc means of getting real work done. It happens almost immediately
without the need for a lot of extra plans.
Mr. Antonio Benjamin, Brazil, noted the work of the Central American model and
asked whether there were results from the training of public prosecutors, concrete examples
of enforcement and environmental improvements resulting from the training. Mr. Marco
Gonzalez indicated that he could not prove that training the judges resulted in specific and
favorable legal decisions. The process of results is a cumulative one. Manuals have been
produced, 600 Judges trained. He knows of cases to enforce environmental law. CCAD has
offered enforcement training 6 times which has produced a cadre of local trained persons
in place on environmental legislation. Environmental Attorneys and prosecutors have been
set up, four such units in Central America. Now environmental law is taught at the Universities
where there is a tradition of being conservative about change. Finally there is greater public
access to information.
3.3 Results of the Americas Regional Meeting
Mr. Marco Antonio Gonzalez Pastora summarized the results of the Americas
regional meeting. He indicated that following an overview session on the hemisphere wide
role that the OAS FIDA network would play that the group split into Sub-Regional groups
so they could discuss in more detail how they envision the future of the network. As a first
stage of the networks it should work with Sub-Regional groups and a focal point is needed
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for Sub-Regional groups. In Central America, the CCAD already has established focal points
for each country who must work both outwards and inwards to ensure a liaison function within
countries as well as with other networks.
The main goals of the networks are:
• enforcement of environmental legislation;
promotion of compliance;
• training; and
• communications and information access for members.
An Americas regional meeting will be held within the next 2 years. As secretariat
for the Supra-Regional network the OAS Department of Sustainable development serves that
function now with FIDA. They need to think about the next phase and what will be the big
issues addressed.
As for Sub-Regional proposals, in addition to the existing networks for North
America and for Central America, CARIB-INECE will be formed around the larger Cartagena
convention. The key leaders plan to issue a communique to inform those not present about
the effort and to solicit views on the relevancy of the network. They will hold a Task'Force
meeting in January or February of 1999 including national and international organizations
represented in CariCom and others including CCAD. The outcome will be a workprogram
which they present to potential donors for support. The purpose will be to inform others in
the region currently not present on INECE, develop a plan of action.
For Central America they met and concurred with the general goals. They want to
focus on illegal traffic of toxic and hazardous waste, promote the regional approval of dirty
products, the uniform management and enforcement concepts and training of general
attorneys prosecutors, judges and comptrollers in international environmental treaties and
exchange of experiences They will use a bulletin to continue to inform their members. CCAD
will serve as a focal point with OAS. There will be a meeting in Honduras in January or
February of next year (1999) to discuss INECE and cooperation in working on illegal trade
and investigation and new trends in regulation.
In North America they will continue their working groups and reach out to other Sub-
Regional networks. Enforcement needs to be part of environmental policies. Public
participation must be ensured to promote active also multi-sponsored regional meeting.
There is general agreement on this need to gain public participation. Since the mandate from
Santa Cruz talks about participation of the public and public and private partnership. OAS
must help support the political will and has some successes in doing this like the water
management network it established in 1993.
In response to a question by Ms. Theresa Serra of the World Bank about report on
the South American subgroup, Mr. Gonzalez indicated that they proposed to concentrate
on the following areas: enforcement of the environmental law, development of standards and
regulations, compliance and enforcement is weak in the legal frameworks, training to and
bring up capacity for enforcement, transboundary movement of pollution, and finally exchange
of information and communications. They agreed to a plan of action. There is a Steering
Committee composed of members from Venezuela, Bolivia, Brazil and Chile. There will be
a meeting in Quito, Ecuador sponsored by the Minister of Environment, Yolanda Kakabatse,
or hosted in San Paulo. They all recognized the need to work further to contact those not
represented at the Monterey conference. At this regional meeting there would be 1
government and 1 NGO representative at the meeting from each country.
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THEME #6 PANEL DISCUSSION: BUILDING GLOBAL AND REGIONAL NETWORKS 519
All pledged to get together in less than 6 months to create a network and decide
then how to implement it. Each Sub-Regional network is to serve as a focal point, facilitate
progress and work with the OAS sustainable Development Department.
4 ASIA REGION
4.1 Panel on the Status of Regional and Sub-Regional Networking
4.1.1 ASPA-INECE
Mr. Lai Kurukulasuriya, UNEP regional office in Bangkok, indicated how supportive
UNEP finds the INECE partnership to meeting its mandate. With financial support from the
government of The Netherlands the UNEP regional office has had the possibility of hosting
a regional meeting on environmental compliance and enforcement in close cooperation with
SACEP, the South Asia Cooperative Environment Program. Participants from 18-19 countries
were joined by the Secretariats of the Basel Convention, Montreal Protocol and legal advisor
to the climate change convention all joined to vigorously support the regional network for Asia
and Pacific. A report of the meeting initiating the network is included in the Conference
registration materials. Several points are important to make. First it is to be responsive to
specific regional needs and as such will evolve into a structure and format to best fit those
needs. Second, it is to be country driven and will seek to strengthen national networks which
would then enrich regional networks. Third, it is to link up with and draw upon networks at
the global and regional levels. A strong INECE will help make the regional INECEs function
more effectively.
The Asia regional network has an enormous expanse from Turkey in the West to
the East Pacific region. Therefore the regional network is operationalized through Sub-
Regional bodies, SACEP, the South Asia Cooperative Environment Project, ASEAN, South
Pacific Regional Environment Program (SPREP), and MPREP. The networks can only be
formed with a torch bearer, a focal point, a secretariat to draw on the expertise, workprogram
and support. Their plan is to start slowly and work within their own absorption capacity. So,
the goal is to have: 1) strong national capacity building and networking, 2) Sub-Regional
capacity building to promote the exchange of experience, and 3) information gathering and
analysis based upon priorities cited in the report. Priority activities include the country profile
report, convening meetings, establishing links. They plan to hyperlink to the extent possible
to increase the available training materials and by adapting to the region's unique needs.
UNEP Bangkok has responsibility for the umbrella ASPA-INECE.
4.1.2 ASEAN
Mr. Aziz Rasol presented an overview of the work of ASEAN and potential for a
subregional network on environmental compliance and enforcement within the framework of
existing activities. ASEAN was created in the early 1970's in the movement against
communism to develop into a political and economic entity of its own. ASOEN was created
by 9 countries in the region at a Summit of the Heads of government. There are Committees
at the Ministerial level, and workgroups. The Committee on Environment was created in the
1980s and has several workgroups including one on biodiversity, one on conventions, one
on haze problems and one on oceans and seas. Senior officials on the environment meet
2 times a year at regular meetings. Workgroups usually meet 3-4 times a year. A summit
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is held every year to two years to officially set the program. The ASEAN workgroup on
transboundary pollution to address the haze problem caused by forest fires was perhaps the
biggest success. It was a common issue, which needed to be addressed rapidly and
effectively and it was. ASEAN formed a workgroup and divided the work. Transboundary
pollution was led by Malaysia, a group on preventive measures is led by Singapore and one
on fire fighting was taken up by Indonesia. All 9 members worked closely together and
because of the existing structure, it was in a good position to gain outside support from the
Asia Development Bank, USAID and UNEP and the countries themselves. It was fully
implemented in 9 months demonstrating that if there is political will and commitment it can
be done.
What does the future hold? ASEAN has two choices to embark on environmental
enforcement networking. It can establish a separate workgroup on environmental
enforcement or it can make this topic part of the agenda of other workprograms so it is always
an agenda topic. This will be discussed among participants from ASEAN countries at the
regional meeting.
4.1.3 South Asia Cooperative Environment Programme, SACEP
Dr. Ananda Raj Joshi, Director General of SACEP described SACEP's role in South
Asia and the future of a South Asian environmental compliance and enforcement network.
SACEP is an intergovernmental organization, which was established in 1982. Its main
mandate is to advance environmental management in the South Asian region among 8
member states (Afghanistan is inactive). Their principal Review Body is the Governing Council
whose members are the Ministers of Environment of the concerned member countries. They
also have a Consultative Committee which comprises the embassy representatives of the
member countries which meets once a quarter to review the work of the Secretariat which
is based in Colombo, Sri Lanka. SACEP has identified 14 priority subject areas on
environment that are of regional concern which need immediate attention. Each of these
priority subject areas has a Focal Point whose tasks are to identify priority areas of action
and develop project proposals, which are regional in character. The function of the Secretariat
is to seek funding and effect the implementation and monitoring of such regional projects.
The Secretariat also serves as the co-ordinating body for regional projects and is also the
Secretariat for the implementation of UNEP's South Asian Regional Seas Programme.
While SACEP does not now have an enforcement network, they do have networks
on environmental information on which they can build. Specifically, they have already
established a Centre titled SACEP Environmental & Natural Resources Information Center
(SENRIC) whose main function is data gathering, capacity building, training and information
management. Almost all member countries of SACEP have environmental laws. However
at this time, the major challenge is securing enforcement, as there is the lack of guidelines,
unclear enforcement mechanisms and inadequate capacity of institutions, insufficient data
and basic information.
SACEP agreed at the September meeting in Bangkok to the setting up of ASPA -
INECE and that it would serve as the Sub-Regional network for the South Asia region and
to carry out all the necessary functions within the broader framework. They are in the initial
stages of developing this network.
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4.2 Plenary Discussion Summary
Mr. Sweeney inquired about the relationships within ASEAN and to ASIA-INECE
and whether they should consider modeling after it in the Caribbean. Mr. Lai Kurukulasuriya
indicated that by initiating action through the initial meeting, they were able to set up a
support unit to set up Sub-Regional networks. It is far more operationally effective to work
through the Sub-Regional organizations. The role of UNEP is then one of making linkages
with other networks, play a facilitation role and make sure regional information, materials
and support is forthcoming from institutions with the capacity to assist Only a small
Secretariat will be based in UNEP and they can help disseminate information.
5 AFRICA, WEST ASIA AND MIDDLE EAST PANEL REGION
5.1 Panel on the Status of Regional and Sub-Regional Networking in Africa
5-1-1 Past Efforts to Establish an Africa Regional INECE Network
Mr. Goke Adegoroye, Nigeria, described the status of activities to implement
recommendations from the participants at the Fourth International Conference in Chiang Mai
for the formation of an Africa regional network where participants agreed on the need to
establish an African network devoted primarily to exchange and capacity building. Nigeria
had offered to serve as a focal point for a regional Secretariat to facilitate arranging the
network. South Africa had offered to host a first regional workshop. It was also recognized
that there was a need for Sub-Regional nodes to serve smaller groups through training and
staffing because there is a considerable gap among African countries in the level of
environmental compliance and enforcement both in the nature and focus and levels of
development. Many countries are just beginning to develop the frameworks for environmental
management. He personally took some initial steps to establish a Secretariat but given
political turmoil and change in Nigeria it did not go very far before in an effort to start up again
there were also significant changes in contacts they were trying to establish among the
countries. Nigeria has invested in training of its own staff, focusing on officers of Nigeria's
state agencies and have participated in an intensive study tour on environmental enforcement
with USEPA with support from the World Bank. Mr. Adegoroye proposed that consideration
should be given to housing an Africa-wide network independent of any single government
sponsor and that this idea should be discussed further with one of several organizations
including possibly the Organization of African Unity (OAU), EGA, African Ministers for the
Environment, SADIC, ECOAS, African Development Bank, UNDP with the capacity 21
program, UNEP and INECE Africa need to arrange to lend political and financial support to
that Network to sustain it on an ongoing basis.
5.1.2 World Bank Perspective on Regional Networking in Africa
Mr. Arne Dalfelt of the World Bank's Africa Division indicated that the World Bank
is focusing more on environmental capacity building than actual enforcement, particularly
because institutions in Africa are not well equipped to handle their commitments to
environmental Conventions. Many still use obsolete 19th century laws and do not really have
a culture of enforcement because of the overriding focus of those seeking development which
does not include the perception that environmental compliance is what is needed as well.
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The World Bank has been focussing specifically on Environmental Assessment and its use
as a decision making tool including both EA and environmental compliance and enforcement
of related conditions. Existing networks in Africa are all emerging since all lack tools, money
and resources. However, there are a lot of the Africans who themselves are moving ahead
in several quarters in the environmental field. In July of 1999 for example, there was an African
Ministers Conference on Environment sponsored by IUCN, World Bank, UN Conference on
Environment in Africa, organizing a stakeholder platform for a final action plan to be
developed. There will be a Donor conference in mid-Winter next year. Trust Funds are
available to be used in a focused way to support these activities with the ultimate goal of
supporting capacity building in enforcement.
5.1.3 African Development Bank Perspective on Networking in Africa
Mr. Eugene Shannon of the African Development noted his paper contribution on the
role of transnational corporations in contributing to environmental problems in Africa and the
efforts of countries in West Africa in particular including Ghana, Sierra Leone, Liberia and
- Nigeria in addressing the illegal dumping of hazardous waste, toxic chemical contamination
resulting from poor and illegal practices. As a Development Bank, the ADB is also there to
support global issues including transboundary movement of hazardous waste both from north
to south and within the south, climate change, ozone depletion and the like through capacity
building. They have a network throughout the Bank, NESDA, the network for Environmentally
Sustainable development in Africa also working with and supporting the Association of African
Ministers on the Environment AMSEN which is also supported now under the OAS with a
Trust Fund. So they are in a position to facilitate through funding and are prepared through
their organizational structure to support, but not do enforcement.
5.1.4 North Africa and Middle East Networking
Mr. Yasser Sherif described the status of forming a network for North Africa and West
Asia. He reported that at this time a host organization has been identified but that not much
work has proceeded past this initial step and a game plan for moving forward. CEDARE,
a non-profit organization formed by the Council of Arab Ministers responsible for the
Environment in 1992 seemed a good choice from their perspective given their objective to
offer regional and national level support to develop and implement environmental programs
for environmental conservation. This compatibility of objectives is coincident since they have
just begun a project on compliance and enforcement of environmental laws. Having this focal
point they plan to develop an agenda for moving forward with a meeting in the Spring of 1999
probably in Cairo. Few of the participating member states will have benefited from the INECE
discussions since only a handful of participants from the region have been able to participate
in past conferences and he noted that it will be important to convey the spirit of INECE. Much
attention will be paid to developing basic capacity at the national levels. One characteristic
of the work of CEDARE is that Arabic is the working language which can overcome one of
the barriers to reaching further into government operations.
5.2 Discussion Summary During Plenary on Status of Networking
In response to a question posed to Mr. Yasser Sherif regarding the role of NGOs
versus government officials in the network he described, he indicated that he did not know
but that in his own personal view this would be a government network since enforcement was
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primarily a government function. He mentioned existing NGO networks that could serve that
purpose in his region. In subsequent discussion different views were offered on this important
issue.
A second question concerned whether the World Bank is interested in funding and
supporting institutional and legal reform within South Africa. Mr. Arne Dalfelt indicated that
they just completed a survey of all environmental legislation in about 50 African countries
and that the bank is very interested in supporting these activities.
Mr. Van den Heuvel concluded that the regional meetings should focus on setting
an agenda for the coming year including what would be accomplished when and who is
responsible for taking action.
5.3 Results of Africa Regional Meeting
Mr. Yasser Sherif reported on the results of the Africa regional meeting resulted in
commitments to move ahead to pursue four Sub-Regional networks within Sub-Saharan
Africa in South, Central, West and East Africa respectively. Country torch bearers were
identified for each of these sub-regional groups. In West Africa it is Nigeria, in East Africa
Uganda, in Central Africa, Cameroon, and in South Africa Zimbabwe will work also with South
Africa who offered at the last conference to take some initiative in this area. Specific activities
and actions were identified to move ahead.
6 GLOBAL INECE NETWORKS AND CROSS CUTTING DISCUSSION ISSUES
6.1 Support of UNEP for INECE
Mr. Kurukulasuriya spoke on behalf of UNEP that they would like to see a strong
and robust INECE especially if regional effective and function that would be a parent body
to which they could turn. He hoped it would sponsor the cause of regions with donor networks
as well.
6.2 Role of NGOs in Regional and Sub-Regional Networks
A recurring issue during the plenary discussions was the appropriate role of NGOs
and whether NGOs could be viewed as "citizen enforcers." There was discussion of this issue
following each panel with some viewing citizens as enforcers and others as at best a prod
and supporter of the government enforcement function. Mr. Herman noted that given the
INECE history, the effort has always been made to make it an inclusive process. Many
countries, including the United States, provide for citizen enforcement, viewing enforcement
of environmental law and three-pronged: state/federal/citizens. This may not be the case
in every country. Inclusion if its appropriate must take into account the role of NGOs. We
must always look to inclusion versus exclusion. A commenter from Argentina was surprised
at the previous comment that enforcement is solely a government function, pointing to the
right given their citizens for a healthy environment and the duty imposed to find both a duty
and a right which cannot be separated. The point was made that democratic, participatory
democracies have joint responsibility. Ms. Svetlana Krevchenko noted that especially in
light of the Aarhus Convention, just having networks of government officials would be a step
backwards. The Asia network did not have these issues because they have included the
involvement of NGOs, but Europe's networks did not nor did several others spoken about.
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6.3 Making Good Intentions Work
Mr. Jan van den Heuvel closed with the observation that there were so many good
intentions about what would be accomplished over the next year, that if even half came to
fruition then it would be successful.
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SUMMARY OF REGIONAL MEETING: EUROPE 525
SUMMARY OF REGIONAL MEETING: EUROPE - BUILDING REGIONAL
Facilitator: Susan Hay, Ladislav Miko, Waltraud Petek
Rapporteur: Betske Goinga
GOALS
The regional meeting will address the following issues:
The genesis of the network and how it was established.
What was/is involved in developing and maintaining the network.
Who is asked to participate and at what levels in the organizations.
Subjects the network covers.
Vehicles used for exchange and means of communication used.
Topics on which exchange is taking place.
How the network overcomes differences in language an legal or other
definitions of terms such as what constitutes a hazardous waste.
Future directions and changes anticipated for the network.
1 INTRODUCTION
A goal of INECE is to further develop the global network by fostering the regional
networks for environmental compliance and enforcement. Participants of Europe metforthe
two-day meeting to discuss further the INECE goals and the results in Europe.
2 DISCUSSION
2.1 Role of the Networks
In Europe there are currently three networks in existence:
IMPEL;
AC-IMPEL; and
ACE-INECE.
These three networks are in different stages of development. IMPEL has already
S:1" operatlon for several vears and is in the stage of delivering concrete products AC-
IMPEL concentrates on the approximation to the European Union, while ECA-INECE has
just had its inception meeting and is getting starting on networking. The common factor in
the three networks is that their aim is exchange of information and sharing of experience
The networks can be developed by starting with concrete issues which can be further
expanded with broader themes.
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526 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2.2 Involvement of others than authorities
The three networks consist until now of authorities dealing with compliance and
enforcement. Involvement of other parties (e.g. industries and NGOs) would depend on the
aims of the networks as such.
2.3 Requirements
All the networks are facing a lack of resources, both human and financial. Therefore,
it is necessary to focus on the available resources. Contribution to the networks must thus
be based on affordable financial, human and material resources. Besides that there is still
the need for international funding (e.g. World Bank, OECD, European Union).
As human resources are scarce, it needs some reflection what can be taken up,
resulting in realistic goals.
There is a need for central focal points per country, something which should be easy
to achieve. Besides that a small secretariat should be in place.
The language problem should be faced somehow, keeping in mind that in the three
networks there are probably more than 35 languages used. If English for instance is used
as a working language, the risk may be that participation in the network may have to rely
on a rather limited number of participants. Translation or interpretation on the other hand will
be very costly.
2.4 Strengthening of the networks
The establishment of strong national networks will be a first need. The networks
can then be built up further by starting with some small projects. The benefits of the networks
can be demonstrated by generating practical outcomes, like promoting awareness and
producing useful documentation. It will be advantageous to look where it is useful for a cross
fertilization to take place, e.g. by mutual participation in each other's exchange programs.
2.5 Work for the future
IMPEL will further consolidate its work in specific projects as defined in its yearly
work programs. AC-IMPEL will focus on the approximation process into the European Union,
while the ECA-INECE countries should start off by compiling a list of contact points which
will facilitate the exchange of information and communication. In due course, IMPEL might
compile a comprehensive directory of the three networks.
IMPEL arranged until now general exchange programs for inspectors. In the end
of 1999 in Greece the general exchange program will be organized. IMPEL will start with
exchange programs that will be related to a special subject. Also, minimum criteria for
inspections were accepted by the members of IMPEL. For the non-lMPEL countries which
are candidates for the European Union special training programs on implementation and
enforcement issues will be set up.
2.6 Role of INECE
INECE is seen as an umbrella for existing networks and as the link between regional
networks. It should continue to serve as a facilitator to bring networks together. A suggestion
was made that ECA-INECE might be transformed into an umbrella European regional INECE.
Thus it could accommodate countries which don't fit in now, like Norway, Switzerland, Turkey.
It could also take on board NGOs and other groups, like industry.
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SUMMARY OF REGIONAL MEETING: EUROPE 527
There is, however, still a need for worldwide contacts and an international-conference
This could be done by having a conference at larger intervals (e.g. 3 or 4 years) and on a
smaller scale with chosen regional representatives. INECE could be the facilitator for regional
networks, e.g. by letting them make use of the existing home page. Regional networks could
also concentrate more on in-depth training.
CONCLUSION
In Europe networks are in place. There are differences in development. In working
together the networks can make use of their difference in development and assist each other.
There is however the need for financial and technical support from authorities.
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528 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARY OF REGIONAL MEETING: AMERICAS 529
PP^M* °F REGIONAL MEETING: AMERICAS - BUILDING
REGIONAL AND GLOBAL NETWORKS
Facilitators: Antonio Azuela, Armando Shalders Neto
Rapporteur: Christie Jorge
GOALS
The regional meeting addressed the following issues:
The genesis of the network and how it was established.
• What was/is involved in developing and maintaining the network.
• Who is asked to participate and at what levels in the organizations
Subjects the network covers.
Vehicles used for exchange and means of communication used.
Topics on which exchange is taking place.
' oSsTt!^^
or terms such as what constitutes a hazardous waste.
Future directions and changes anticipated for the network.
INTRODUCTION
from th^Snnf?*3^^ of S°vernment- non-governmental, and international organizations
DISCUSSION SUMMARY
The FoTc nte? Am.ri^n H Amb'en'al' W3S reviewed' and a 9reat dea' <* discussion ensued
Foro Inte^rmPriSTn39'6^ ^ the Or9ani2ation °f American States effort to establish
annexed to this" repoSTs ! r6V'Sed baS6d O" ^ '^ A C°Py ^ be
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530 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
At the same time, participants desired to continue working to build sub-regional
enforcement and compliance networks that can continue the work of INECE at a local level.
These sub-regional networks would carry on the themes of INECE and interact with Foro Inter-
Americano de Derecho Ambiental in a complementary and mutually-strengthening fashion.
In order to develop further the plans for work at a sub-regional level, the Americas
Group divided by sub-regions, and prepared reports on progress, priorities and next steps.
The following reports were filed by those working at the sub-regional level.
2 REPORTOFTHE CARIBBEANSUB-COMMITTEE
Discussions centered around "the way forward", with the understanding that there
are implied benefits from becoming part of a network. The participants decided on the name
CARIB-INECE for the Caribbean proposed network.
Recommendations:
• Issue communique at the end of Monterrey meeting informing Caribbean
countries not present of the outcomes and soliciting their views on the
relevancy of the network. This input will feed into a Task'Force meeting.
Task Force/Preparatory Committee (TF/PC) to meet January or February 1999,
consisting of United Nations Environment Programme/Regional Caribbean Unit
(UNEP/RCU), Caribbean Environmental Health Institute (CEHI) and the
Government of Jamaica (for purposes of logistics, costs and institutional
memory). Informal meeting will discuss the next steps in order to build
constituency. Based on country feedback the Draft Agenda for a CARIB-INECE
meeting can be prepared.
• Outcomes from the Task Force/Preparatory Committee meeting will allow for
"peddling" to potential supporters (e.g. Canadian International Development
Agency/Government of the Netherlands/World Bank/Organization of American
States).
• Depending on resource availability, the regional meeting might also piggy-back
on existing consultations such as the ACS Environmental Committee meeting
or the UNEP/RCU LBS protocol meetings.
• Regional meeting will involve country representatives as well as regional and
other organizations and agencies (Caribbean Environmental Health Institute,
Central American Commission for Environment and Development, UNEP,
World Bank, USEPA (Puerto Rico and Washington, DC); Canadian
International Development Agency/Environment Canada, Dutch Government,
among others).
• Expected results of regional meeting include participants informed of INECE,
participants informed of positive examples of networks working in other parts
of the world, regional plan for action, regional proposals for submission to
donors to catalyze functioning of network, resolution for presentation to regional
(political) forum.
Through mechanisms such as the Caribbean Community or the Association
of Caribbean States Councils, outputs of regional meeting can be presented
for regional government endorsement or support.
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Development Bank and CIDA to suppStihls wo?k PP ^ the Inter-Ameri^n
3 REPORT OFTHE NORTH AMERICA SUB-COMMITTEE
tee made the
3S a drivin9 fo- - ^ region, but including
• Illegal trade in environmental and natural resources should be tackled
' ' ^rreTon^
• We have to link and combine the work of the sub-regions at a regional level
' SSpaS needS t0 ^ Part °f environme^' policy (including public
• Within the next two years we recommend a multi-sponsored regional meeting.
4 REPORT OFTHE SOUTH-AMERICAN SUB-COMMITTEE
Discussions centered around priorities for joint action, and included:
4.1 Important Themes
"Eren°uSent (PrinC!Pa ' P°"Uters' pollution standards, how to regulate the
regulated community", natural resources need protection)
SemenO "* enf°rCement (WeakneSses and strengths of the law for
Capacity-Building perfection, make current and training
information on
4.2 Types of information and communication
Formal and informal character
Government representatives
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532 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4.3 Proposed next meeting
Time and place not decided, but all in favor of "jump-staring" the network by
scheduling a meeting (participants noted that there was great interest in
creating a network).
Decision to take measures to create the network in a meeting and those are
the activities that will be conducted. The next meeting will consist of members
of the commission, this executive commission will be formed by the following
countries: Venezuela, Bolivia, Brazil and Chile. These countries will also seek
to identify members from countries not represented at this INECE meeting.
4.4 Possible locations for an office
Quito or Sao Paulo (the host country will seek financing to achieve the objectives
mentioned above.)
4.5 Composition per country
One government representative.
One NGO representative.
One representative from the enforcement sector (this was not agreed upon).
5 REPORT OFTHE CENTRAL AMERICAN SUB-COMMITTEE
Discussions centered around the priority or important themes for the countries of
the region.
5.1 Important Themes
Illegal traffic of pesticides and toxic substances
List of "Dirty Dozen"
Uniform or harmonize concepts dealing with environmental management
Training and capacity-building for government officials and experts, judges,
prosecutors, and controllers. Emphasis on strengthening the office of the
prosecutors (Ministerio Publico)
Enforcement of international environmental agreements, declarations, and
summits
Horizontal exchange of information and experiences
• Create a sub-regional bulletin
5.2 Purpose of the network
The network will constitute a fora for dialogue that enables "face-to-face" interaction.
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SUMMARY OF REGIONAL MEETING: AMERICAS 533
5.3 Types of information
The network will seek to exchange information and experiences on legislation and
the exchange of human resources (technical experts).
5.4 Guaranteeing an adequate flow of information
The multiplier effect of the information and look for the focal point or multiplier effect
point in each country. This contact person/office must be a liaison for external
communications as well as for in-country communications.
The focal point must be an individual that assumes a personal responsibility and
should not be tied the their official positions (this seeks to mitigate the great mobility of public
authorities in the sub-region). H
The focal point will be designated by the Organization of American States at the
hemispheric level and the Central American Commission for Environment and Development
(CCAD) at the sub-regional level.
5.5 Mechanisms to operate the network
There must be a selection of a focal point per country. The Organization of American
States (OAS) can serve as a facilitator and can serve as the Technical Secretariat along with
the Central American Commission on Environment and Development (CCAD).
The Red de Organizaciones de Derecho Ambiental (based in Guatemala) can use
small resources available to fund the network, it can also write a bulletin on the network and
describe who comprises the network). The network will also use existing national fora both
from the government as well as from NGOs.
6 CONCLUSION
In conclusion, networking in the Americas has taken important steps forward at a
regional and subregional level. There appears to be a commitment to building and
strengthening networks on a range of environmental law issues, including enforcement and
compliance, and it appears that these efforts are mutually supporting and complementary
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534 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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NOLET, GIL 535
ENVIRONMENTAL ENFORCEMENT IN LATIN AMERICA AND THE
CARIBBEAN
NOLET, GIL
Inter-American Development Bank, Environment Division, 1300 New York Avenue NW
Washington, D.C. 20577 '
SUMMARY
This paper provides an overview of the status of environmental compliance and
enforcement in Latin America and the Caribbean. It identifies why it has proven to be a
challenge and provides examples of enforcement and alternative approaches. The role of
the Courts is described as are steps needed to make progress.
1 INTRODUCTION
The need for effective environmental enforcement is increasingly recognized in Latin
America and the Caribbean. The Declaration of Santa Cruz de la Sierra (December 1996)
states that the countries will "develop national mechanisms for effective enforcement of
applicable international and national laws and provisions".
The political acknowledgment of the importance of environmental enforcement is
likely to stem from the recognition that the degree to which environmental quality can be
improved by public policy depends not only on the wisdom inherent in policy design, but also
on the effectiveness of policy enforcement. Policies which initially seem to offer promise
may, in the glare of hindsight, prove unsuitable if enforcement is difficult or lax. Implementing
a successful sustainable development strategy requires that careful attention be paid to the
environmental consequences of economic activities. Ignoring or treating these environmental
impacts as inconsequential can undermine human and ecosystem health as well as the
resource base on which all economic development ultimately depends (Tietenberg, 1996)
Environmental enforcement has been broadly defined as "the range of actions
governments and others may take to encourage and compel compliance with environmental
requirements" (Wasserman, 1994). Environmental enforcement is obviously important to
protect environmental quality and public health. When enforcement actions are being planned
and carried out effectively, environmental enforcement also contributes to building and
strengthening the credibility of environmental requirements, ensuring fairness, and reducing
costs and liability (Wasserman, 1994). In general, a lack of official response to violations
could harm the credibility of environmental laws and governmental agencies. This lack of
credibility in turn may lead to serious costs for business and undermine efforts to attract
investors. Moreover, a system under which there are no coherent priority setting and no
systematic policy to target polluters will result in efficiently high costs of compliance on
polluters where often pollution control is pursued where resistance is least rather than where
costs are least or benefits are highest (World Bank 1996).
However, how best to focus environmental enforcement activities in order to achieve
cost-efficient environmental compliance (such that the excess of benefits over costs (or net
benefits) are maximized) is still subject to much debate. Much depends on the adequacy
of the environmental laws and regulations themselves, but also on the costs related to
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536 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
enforcement activities, such as monitoring, and the availability of instruments and capacity
of institutions, not in the least the judiciary. This report will describe some of the recent
developments in Latin America and the Caribbean countries in this respect. It will also review
if enforcement can contribute to revenue generation, and highlight some of the changes that
are taking place in the area of enforcement through increased private enforcement and
voluntary compliance. Whereas private enforcement may bring non-traditional actors in the
enforcement scene, such as non-governmental organizations and private companies,
programs of voluntary compliance are focused on the potential polluters ("the regulated
community") themselves to make them more responsible for and responsive to
environmental laws and regulations.
2 ENFORCEMENT: WHY IS IT DIFFICULT?
The economics literature on enforcement has focused on a number of topics,
including the role of enforcement considerations in policy instrument choice (Harford 1978;
Viscusi and Zeckhauser 1979; Lee 1984; Martin 1984), the effectiveness of current
enforcement techniques (Russell, Harrington and Vaughan 1986; Harrington 1988; Russell
1990), and suggestions for improving the enforcement process (Russell, Harrington and
Vaughan 1986; Harrington 1988; Russell 1990). One theme that emerges from these works
is that a considerable amount of noncompliance is occurring everywhere. Furthermore,
limited public enforcement budgets and judicial limits on public enforcement powers (Russell,
Harrington and Vaughan. 1986; Harrington 1988; Russell 1990) suggest that traditional
enforcement agencies are not likely to mount a completely adequate response to the
environmental degradation resulting from noncompliance.
The countries of Latin America and the Caribbean fit this general image. Studies
published by the IDB on the institutional and legal aspects of the environment in its borrowing
countries, concluded that lack of compliance with environmental legislation is due to
shortages of human, material and financial resources for appropriate environmental
management (IDB, 1991; IDB, 1996). An IDB study on Southern-American countries
concluded that enforcement is the greatest constraint faced by all the six countries of the
study, mainly due to the fact that enforcement problems have traditionally received little
attention by legislators, a negative trend that persists today (IDB, 1996).
The common problems related to monitoring, compliance and enforcement are
insufficient social value attached by the public, understating of the institutions responsible
for enforcing, shortcomings in judicial enforcement with only a small number of judges and
attorneys qualified in the field of environmental law, and a lack of program funding. Setting
up reliable databases, control and monitoring is extremely expensive. Moreover, the cost
of maintaining a database can be much larger than the cost of starting one. Some countries
have put institutions in place but have not succeeded yet in giving them the power to operate
effectively. Other countries still lack an institutional infrastructure (Tietenberg, 1996).
An important factor is related to inadequate monitoring and control. The above-
mentioned IDB study on the Southern Cone concluded that in Argentina, for example, most
of the examined environmental agencies are ill-equipped, limited in their number of inspectors
and other supporting staff, poorly budgeted and politically weak (IDB, 1996). It was noted,
however, that in some cases environmental monitoring was more advanced at the provincial
level. For example, Mendoza has adopted a very sophisticated environmental monitoring
system in which data becomes part of a policy making process (IDB, 1996).
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NOLET, GIL 537
The case of Mendoza and CETESBE in San Paulo State, Brazil, however, may very
weH be exceptions to the general rule that in Latin America the lower levels of government
lack sufficient resources to adequately deal with their new responsibilities. Enforcement of
environmental regulations is increasingly being transferred to the responsibility of
departmental and local agencies without a transfer of the necessary resources (World Bank
1997). In Bolivia, for example, the new decentralization law transfers the enforcement
responsibilities as well as the Environmental Impact Assessment system, to local
governments but most of them still lack the appropriate institutional organization and human
resources needed to carry out their functions (IDB, 1996).
« , *• Bu* nonc°mPliance with regulations is also caused by an inefficiency of the
regulations themselves. Existing regulatory schemes are not always cost-effective compared
to other possible approaches. Regulations often set environmental requirements (ambient
standards, performance standards and/or technology standards), which need to be monitored
and enforced^. Moreover, the standards themselves should be set in accordance with local
circumstances and requirements. Copying international standards may be counterproductive
because it may be impossible to enforce them (Tietenberg, 1996). In Venezuela, for example
the Ministry of Environment and Renewable Natural Resources (MARNR) acknowledged a
few years ago that the country's Environmental Penal Law was ineffective because many
technical standards "came out in a rush and many of them are confusing" (EWLA 1995)
Yet, there is some evidence that monitoring and enforcement is being given
increasing consideration within Latin America and the Caribbean. In February 1994 the
Colombian government launched a new pollution control and monitoring program that, for the
first toe, will allow the government to supervise the generation, treatment, and management
of industrial l.qu.d waste. The system will be supported by a computerized data base to store
laaT^S1 SSL discharges, permits, and licenses of industrial sources (Tietenberg
n«i?fm * ? f JA emphasis on enforcement has put great pressure on the Mexican
government to further increase enforcement (Gresham and Bloomfield 1995) The NAFTA
provisions (see box) have resulted in an increased awareness and emergence of private
enforcement in Mexico, and probably also in other countries of the region, certainly if they
were to join NAFTA. '
The Government of Mexico has taken several steps to improve its monitoring and
enforcement record, including passage of the General Ecology Law (1988) and the
SSSSSS1 (1"2) f ^ °ffiCe °f the Att0mey General for Cation of the, Environment
Rch ^ ^MA»f,A*iy Undei"the Secretariat of Environment, Natural Resources and
Fisheries (SEMARNAP). Mexico has adopted an Environmental Program for 1995-2000 to
improve compliance with environmental legislation. The program also includes a set of
innovative preventive measures, such as voluntary environmental audits (see below) and the
establishment of a web page to encourage compliance with environmental regulations These
actions have apparently been reflected in an increase in the level of enforcement effort as
P ,00, AnnUal Rep0rt of the NAFTA Commission for Environmental Cooperation
, i yy /).
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538 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
NAFTA and Environmental Enforcement
NAFTA, in particular the Supplemental Agreement on
Environmental Cooperation, emphasizes the importance of both
government enforcement actions as well as private enforcement. In Article
5, the NAFTA Supplemental Agreement on Environmental Cooperation lists
several actions governments should undertake to effectively enforce its
environmental laws and regulations. Such actions include appointing and
training inspectors, monitoring compliance, seeking assurances of
voluntary compliance, publicly releasing non-compliance information,
promoting environmental audits, requiring record keeping and reporting,
providing or encouraging mediation and arbitration services and using
licenses, permits or authorizations. It also states that each Party shall
ensure that judicial, quasi-judicial or administrative enforcement
proceedings are available to sanction or remedy violations of its
environmental laws and regulations (Article 5). Such sanctions and
remedies shall take into consideration the nature and gravity of the violation,
any economic benefit derived form the violation, and the economic condition
of the violator. Furthermore, it shall include compliance agreements, fines,
imprisonment, injunctions, the closure of facilities, and the cost of
containing or cleaning up pollution.
In addition to its provisions on public enforcement, the NAFTA
Supplemental Agreement contains innovative provisions on private
enforcement. Article 6 of the NAFTA Supplemental Agreement contains the
obligation of each Party (U.S., Canada and Mexico) to enable interested
persons to participate in enforcement activities. It states that each Party
shall ensure that interested persons have access to enforcement
proceedings, and that interested persons may:
• sue another person for damages;
• seek sanctions or remedies such as monetary penalties,
emergency closures or orders to mitigate the consequences
of violations of environmental laws and regulations;
request the competent authorities to take appropriate action
to enforce the environmental laws and regulations in order to
protect the environment or to avoid environmental harm;
seek injunctions where a person suffers, or may suffer, loss,
damages or injury as a result of a violation of environmental
laws and regulations of from tortious conduct.
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NOLET, GIL 539
Unlike Mexico, in certain countries of the region the responsibility for environmental
enforcement still belongs to the sectoral ministries. In Chile, for example, the most important
enforcement agency is the Ministry of Health due to a large number of violations related to
human health legislation (IDB, 1996). In other countries, the regulatory authorities, such as
the forestry serv.ce, should initiate any administrative enforcement action without which the
attorney general has no authority to act (Lawyers Committee for Human Rights, 1998).
3 ENFORCEMENT: A POSSIBLE FUNDING SOURCE?
It has been argued that an efficient and effective legal environmental system can
become an important instrument for generating resources for environmental projects and
preventing further environmental degradation (L6pez, 1994). Effectively enforced legislation
that establishes large financial penalties forviolators and requires full financial compensation
Tor past environmental damages may have a potential for raising significant resources that
could be used to finance new sustainability programs. However, as the US experience with
Superfund has shown, there are serious constraints to a system under which a government
agency tnes to raise resources for its own use through the court system. The EPA has spent
seven dollars in overhead for every dollar spent on clean up (L6pez, 1994)
Are fines for environmental crimes really a potential source of revenues for
environmental projects? In Brazil, it is estimated that the Brazilian Institute of the Environment
and Renewable Natural Resources (IBAMA) collected between US $10 million and US $12
million per year during 1996 and 1997 from environmental fines (IDB, 1998). Under the new
Brazilian Law on Environmental Crimes, which came into force on March 30,1998 a portion
of the fines collected for environmental infractions should now be transferred to the National
nm! (FNMA). When the amount of collected fines continues to be at the 1996-
level, this earmarking of environmental fines can clearly contribute to the lonq-term
s"sta!nabilitv of tne FNMA ^d as such help to finance environmental improvements.
is the first and oldest environmental fund established in Brazil and has financed
projects primarily in environmental control, protected areas and environmental education
Over 70 percent of the projects are executed by NGOs, community groups and small
municipalities. It should be noted, however, that President Cardoso has suspended several
provisions of the new law.
\ .- T6t; °ne Should Probab|y not be overly optimistic about the revenue generation
potential of environmental fines. In Colombia's "Financial Strategy for Sustaining
Environmental Investment for the period 1998-2007", it is stated that revenues from
environmental fines (as levied under Art 85 of the Environmental Law; Ley No 99) have not
been significant so far although they may have the potential to increase when the
implementation of the law becomes more developed. Under the Ley No. 99, the environmental
f o!?^«S Can imp°se daily fines up to 30° davs> minimum wage (in Mexico, sanctions up
to 20,000 times the minimum wage are allowed; IER, 1994. p. 817). However even in the
most optimistic scenario, the Financial Strategy estimates that the revenues from
environmental fines would be limited to US $6.4 million over the ten year period covered bv
the strategy, probably due to the fact that it is reasonable to expect that a successful program
would result in increased compliance and thus fewer fines (although it is suggested to partly
compensate this by making the fine amounts inversely related to the level of overall
compliance).
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540 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The Financial Strategy, however, shows that within a context of developing a broader
spectrum of financial instruments, environmental fines can play a significant role. In many
countries of Latin America and the Caribbean, however, there is reluctance to allow
earmarking of environmental fines for environmental investments. In general, penalties can
either be earmarked for environmental improvement or put into the general treasury. Traditional
economic theory suggests a preference for putting penalties in the general treasury.
Earmarking them for a specific purpose such as environmental improvement is seen as
unnecessarily restricting the possibilities for spending the money in the most efficient way.
If environmental improvement is the most efficient way of spending the money, then general
treasury money can be spent for that purpose. But if other projects were to offer much higher
rates of return, earmarked revenues (because they are designated for a particular purpose)
would miss those opportunities (Tietenberg, 1996). Earmarking may not only result in
suboptimal allocation of resources but also provide incentives to environmental authorities
to pursue fines even if not in the social interest of the country. Therefore, a system that allows
earmarking of environmental fines should address these issues in a satisfactory manner.
Four Main Ways of Private Enforcement
Under the typical regime, private groups can use private enforcement
actions to pursue better environmental quality in four main ways:
(1) fay suing polluters to recover monetary damages inflicted on
them by the pollution (for the purpose of this paper called "civil
liability actions");
(2) by lodging a complaint by the enforcer with a designated
public authority (called "complaint actions");
(3) by bringing a legal action against a public authority entrusted
with responsibility for implementing the laws to force
compliance with legislative or constitutional requirements
(called "oversight actions");
(4) by bringing actions against polluters for the purpose of
bringing them into compliance with the law (called "direct
citizen suits");
This latter two categories of enforcement action may include
seeking an injunction, i.e. requiring a party to refrain from doing or continuing
to do a particular act or activity. Injunctive remedies are preventive measures
which guard against future injuries rather than affording a remedy for past
injuries.
4 ALTERNATIVE APPROACHESTO ENFORCEMENT: PRIVATE
ENFORCEMENT
In order to circumvent some of the constraints faced by public enforcement
agencies, in particular resource and staff constraints, private enforcement could be an
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NOLET, GIL 541
(such as fire protection)
to that strategy. In
enforcers ret'ain a
have been cautious not to afford
enforcement is increasingly
and regulations (Tietenberq
of finance through BB^
through making noncomp.iance
- or even substitute
-
B p"WIc resP°^ibility
* ' enforcement does not lend itself
"8"ne., pub.ic
m°St Ie9isiatures
Nevertheless' Private
ing environmental laws
1 * ^ T^46 a SOUrce
more -
Much
^===:^=
Oversight Actions in Chile
I
private enSmtntThe initiator of ^ST moretconvent-a' "ability actions in that in
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FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In Latin America and the Caribbean, the complaint is frequently triggered by a
perceived violation of a proceduralrequirementorof a fundamental right to a clean environment
which is not necessarily related to specific legal discharge standards. Under the complaint
form of private enforcement the public authority may be designated as the recipient of any
complaint with full powers to investigate and dispose of the complaint, as is the case in El
Salvador (Navarrete Lopez, 1994). In the U.S. and European contexts the action is more likely
to be exclusively focused on a violation of a specific discharge standard.
The right of citizens to participate directly in the enforcement of environmental laws
and regulations varies from one country to another. Unlike the United States, most of the
civil law countries of the region do not have citizen suit provisions in specific environmental
laws. In most countries, citizen suits, if they exist, are generally derived from the constitution
Legal Traditions
To be effective private enforcement activities must conform to the
legal traditions of the region. Those legal traditions vary considerably. In
common law (the legal system in most of the English speaking
Caribbean), the legal systems are based on law created through legal
precedent, notwithstanding the existence of statutory law and rules. The
common law is not the result of legislative enactment. Rather its authority
is derived solely through judicial decisions (Environmental Law Handbook,
Gl INC, 1993). However, most common law countries, including the U.S.,
have legislated extensively with regard to the environmental area and a
substantial part of the law is based on statutory provisions (including the
citizen suit provisions in U.S. statutes), but with a strong common law
influence. Legal precedent is very relevant in the English-speaking
countries of the Caribbean. But in those countries citizen suits are not
a common feature of the system.
The other LAC-countries follow the civil law system as derived
from the Roman-Germanic tradition. In a civil law tradition, the legal
system is based on an extensive system of laws and regulations. The
courts apply the laws and regulations to specific cases presented to them
and therefore play a less significant role in interpreting and making law.
However, some complaint procedures resulting in a court decision provide
the judiciary substantial authority and limit the discretionary powers of
the executive branch.
or the civil codes. For instance, civil codes provide citizens with the general right to bring
legal action against any person for the failure to comply with the law (not specifically
environmental laws). In other countries, citizens' rights are limited to complaint actions.
In Mexico, citizens have the right to issue a complaint before the Environmental
Attorney General's Office (PROFEPA) under the General Law on Ecological Equilibrium and
Environmental Protection. El Salvador's National System of Environmental Complaints offers
similar opportunities to its citizens (Navarrete Lopez, 1994).
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NOLET, GIL 543
More recently, Mexico published a Decree amending the law (13 December ipom
claim bJ0hrpTh^lib^al-re?iTe S?6mS t0 6XiSt in Brazil' where every citi^n can bring a
r™ r? / ,1 °UrtS' Includm9 for ^eir environmental rights granted by Art 225 of the
Const,tut,on. Concerned citizens may also contest administrate decision that *hey consider
Ac io°n (ArtT™nCf tf ^ 'T^0 proceedin9s «* Particularly important (V?opu1a
Action (Art 5, LXXIII of the Federal Constitution) under which every citizen has the right to
Corruption
STe co"ntries corruption inhibits efforts to enforce environmental
ns. Low staff salar.es and little external oversight of regulatory
mav 'turn o'tf ^ 6hnvir°nment wnere bribi"9 ^cials to look the other way
e^ronm.nV'! ? ^f**™ makin9 the required investments to prevent
Pnfnr^T * If ""' B°th the dtizen suit afld oversight roles for private
enforcement make even more of a difference in the degree of compliance in
a corrupt enforcement regime than it could in the absence of corrupSn
Allowing private enforcement oversight of public decisions provides a direct
nrivoL0^00™?'0^' Whi'e all°Wing private enforcers to bri"9 ^tions against
environmentai harm rov
environmentai harm provides a
'S an effective strategy only when the officials have
"*" *? enforcement P™ce88 that they can grant the bribing
-0m^f°rClTent aCti0nS' AS lona as enforcement is the
mmnn ? the pub"c sector brlbes are valuable because of the
mmumty public enforcers can bring. However, when private enforcers enter
Tnfnrr!!!f ' S *C enf°^ers can no Ion9er assure immunity from an
- 9 becomes a less certain> and h^nce less
?" the C!ther hand' careful consideration needs to be given to the
3
' gven o e
h'3 * P,rOCedUre and any necessary protection of anonymity.
where police may take the law in their own hand it can be
counterproductive to require that complainants give their names' and othe"
to who± Tat'°n withf theircomplaints' P0^'* exposing themselves
to whoever gets access to that data. It has been reported that in Paraguay
introducing this requirement has resulted in fewer complaints that before
(Lawyers Committee for Human Rights, 1 998).
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544 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
challenge an administrative act because of alleged harm to the environment (public wealth);
and (ii) Public Civil Actions (Art 129, 111 of the Federal Constitution) under which the Public
Ministry and NGOs have legal standing.
It is said that the Brazilian Public Ministry is an unique institution in Latin America.
It operates completely independentfrom the government and has evolved has the main plaintiff
from environmental protection in Brazil. In other countries, civil actions may also be brought
by other actors, such as an ombudsman (defensor del pueblo).
4.1 The Interaction of Public/Private Enforcement
Low levels of public enforcement could be expected to increase the private benefits
from private litigation activity. Violations could be expected to be more frequent and more
serious in periods of lax enforcement. It follows that the privately optimal level of private
enforcement is inversely related to the amount of public enforcement. All other things being
equal, we would expect more citizen enforcement activity in countries with diminished
government enforcement activity. Similarly, within countries, we would expect more private
enforcement activity during periods of reduced public enforcement.
However, private enforcement clearly also has potential disadvantages to society.
A public enforcement agency which has a clearly articulated and effective strategy for
allocating its resources to enforcement activities could find its priorities completely subverted
by private enforcement activity. Responding to complaints and court challenges of its
decisions consumes time and resources. Clearly some balance is needed to assure that
legitimate, but not excessive, pressure can be applied by private enforcers (Tietenberg, 1996).
In his report, Tietenberg identifies two specific problems with the private enforcement process:
(1) private enforcer priorities in choosing which claims to pursue will not necessarily coincide
with social priorities; and (2) private enforcer actions may not support the socially desirable
intensity of control. This, however, is not a fatal blow to private enforcement according to
Tietenberg. One area where private enforcement may have the edge is in pursuing public
polluters and the other is corruption (see box).
Despite the fact that public facilities represent a substantial proportion of the pollution
problem, enforcement of pollution control laws presents special problems for public enforcers
in most countries. The evidence seems very clear that public enforcement of violations by
public polluters has been quite ineffective and the problem is not the inadequate availability
of remedies, but rather the reluctance of public enforcers to use the available remedies (Gelpe
1989).
Public and private enforcement can also complement each other. Private
enforcement, particularly citizen suits, can take on some of the routine tasks, leaving the
more serious problems to the public sector. Focusing public enforcement activity on the most
significant problems makes a great deal of sense because of the ease of transferring
information and expertise from one case to another. If enforcement were the exclusive
responsibility of the public sector, however, focusing on priority areas could open the
possibility for polluters operating in non-targeted areas to exploit that decision. Polluters in
non-targeted areas would respond to a perceived decline in public scrutiny with reduced
compliance. Since private enforcers are not operating on the same set of priorities as public
enforcers, the likelihood of private enforcement in a non-targeted area is not diminished. With
a continuing threat from private enforcers polluters have a continuing reason for compliance,
even when the public sector has its focus elsewhere. The very existence of the private
enforcement alternative allows'public enforcers more flexibility in targeting their resources,
a flexibility which offers the opportunity to use their limited resources more efficiently.
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NOLET, GIL 545
4.2
FUNDEPUBLICO
The Sustainability of Private Enforcement Actions
ities for
°blained no
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546 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
legal costs, which is already a part of the legal system in Latin America, provides a perfectly
reasonable vehicle for covering these costs. The reimbursement from each previous
successful action provides a fund to be used in pursuing the next action. As long as the claims
brought are meritorious, the fund keeps being replenished.
It would be possible to carry this even further by authorizing that penalties be paid
directly to private enforcers rather than dedicated to environmental improvement. In this case
private enforcement would be a profitable activity and bounty hunters could be expected to
join. While this high level of incentive might well be merited in specific circumstances, its
dangers should be recognized. Bounty hunters certainly accelerate the movement toward
complete compliance. Whenever complete compliance may not be socially desirable, this
acceleration may prove to introduce significant problems. Since the U.S. experience
indicates that the reimbursement of attorneys' fees may be sufficient to produce sustainability
of the process, it may not be necessary to introduce bounty hunter provisions.
5 ALTERNATIVE APPROACHESTO ENFORCEMENT: VOLUNTARY
COMPLIANCE
Partly to address the lack of public resources available for environmental monitoring
and enforcement, more attention is being paid to the development of strategies that would
focus on activities to prevent environmental violations. These strategies are directed to the
regulated community itself with the objective to make potential polluters more responsible
for and responsive to environmental laws and regulations, capitalizing on other trends such
as increased corporate environmental management (strongly influenced by the development
of the recent ISO 14,000 standards) and recognition that preventing pollution has significant
advantages over end-of-pipe measures (Stahl, 1994). There are several programs being
developed to promote voluntary compliance by the regulated community: Environmental
Auditing, Outreach and Incentive Programs, Certification Programs, Environmental
Education, and Public Disclosure Requirements.
At the minimum, the objective of a voluntary compliance program is to generate
public awareness as a means of bringing public pressure on the violator to comply. Work
at the World Bank has indicated that merely supplying the public with better information about
violations may be a surprisingly effective means of encouraging compliance, especially when
more conventional approaches are not available (World Bank, 1997). Public information and
disclosure programs also exist in Latin America. In Sao Paulo, for example, air quality levels
are shown on automatic digital displays placed in strategic points of the city, together with
a list of industry found to be in compliance with the law (IDB, 1996)
More elaborate programs promote the use of self-monitoring and reporting systems.
Mainly to compensate for the lack of public resources, it has been suggested to increase
the use of such programs in Latin America (IDB, 1996). Brazil has some experience with
self-monitoring and reporting although it is reported that they are rarely audited or checked.
In Minas Gerais (Brazil), monitoring activities (sampling and analysis) are performed by
private laboratories and research centers. In Belo Horizonte, air quality is monitored by an
automatic network implemented by PETROBRAS, the Brazilian oil company, as part of
permit requirements (IDB, 1996).
Probably the most advanced programs of voluntary compliance are related to
environmental auditing. In this respect, Mexico has undoubtedly taken the lead in Latin
America. The Federal Attorney for Environmental Protection (PROFEPA) started an ambitious
voluntary environmental audit program in 1992 to promote self-regulation. Under the program,
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NOLET, GIL 547
oona PROFEPA »• • —
upon actions. PROFEPA also reaUarlv mn,,',» s"pf"ses compliance with the agreed
companies have been conducted. (Calderan BartheneV 1M7) enV'r°nmental audits of
THE ROLE OF THE COURTS
{ME^nsKsirl^
r?s^s
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548 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Since 1996, the IDB has approved a number of judicial reform projects. Whenever
feasible and appropriate, the Bank includes a component on environmental law in these
projects, normally dealing with training and improving access to justice.
Other organizations are also involved in providing training. In July 1996, The Center
for Governmental Responsibility (University of Florida) organized a training program for judges,
prosecutors and lawyers in Brazil (State of Parana) for which the Center also prepared a
manual (Center for Governmental Responsibility, 1996). Also in 1996, the Colombian Office
of the Defender of the People (La Defensoria del Pueblo) organized a seminar for regional
and high court judges to instruct them on the national environmental legislation. During the
workshop, the judges were trained on the provisions in the legislation dealing with legal
mechanisms, such as the constitutional right to "tutela" and "popular actions". (IER.1996,
p. 462.). In Paraguay, the Public Ministry sponsored 18 seminars on environmental law for
judges and prosecutors, although it is reported that only few attended (Lawyers Committee
for Human Rights, 1998).
Despite these international initiatives, much more work seems to be needed. In a
recent publication on Judicial Reform and the Environment, the Lawyers Committee for
Human Rights (1998) makes a set of recommendations aimed at improving access to the
courts. The recommendations are related to improving administrative procedures and
oversight and allowing greater private access to courts through changes in the loser pays
rule, and standing and legal representation requirements.
Although no data are known to exist about any increase of environmental cases
before the courts, there are reports indicating that training does make a difference (Lawyers
Committee for Human Rights, 1998). According to some reviewers, there is growing evidence
of litigation around environmental issues in Latin America and the Caribbean (Gracer, 1995).
In any case, there has been a number of high profile environmental court cases during the
last couple of years. In 1993, Colombia's Constitutional Court declared the right to a clean
and safe environment to be a fundamental right which means that if an individual feels his
right is violated, he can invoke the Action of Tutelage to go to court. Public environmental
officials are required to carry out the court's decision (EWLA, February 1993, p. 12). In Brazil,
a federal judge from Mato Grosso, on the ground that the government had failed to consult
with affected communities, in this case an Indian tribe whose 130 members live on an island
in the Paraguay river, granted an injunction prohibiting the government from starting work on
the Hidrovfa project in the Paraguay-Parana rivers (IER, 1998, Feb 4, p.99). In Chile, the "Rio
Condor" logging project in Tierra del Fuego has been stalled by several lawsuits in Chile's
courts, challenging the legality of the Environmental Impact Studies conducted for the firm
Trillium. Separate suits have been filed by parliamentarians, non-governmental organizations
and countersuits by the company Trillium (IER, 1998, Vol. 21, No. 17., p. 824). Other cases
are still pending: In Venezuela, Perrton Indians living in the rainforest of southeastern
Venezuela are protesting the construction of a power line and have filed lawsuits to challenge
the governmental decree that opens up 40 percent of the Imataca rainforest reserve to mining
and logging (Decree 1850) and the construction of the pipeline (IER, 1998, Vol 21, No 17,
p. 823).
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NOLET, GIL 549
CONCLUSION
~!"he devel°Pments described above are accompanied by a recognition amona oolicv
ENDNOTES
1.
^Vantages and disadvantages in terms of monitoring and
F™^
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550 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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552 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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554 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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SUMMARYOF REGIONAL MEETING: ASIA AND PACIFIC 555
Facilitator: Aziz Rasol
Rapporteurs: . Jean Aden, Ron Kreizenbeck
GOALS
The regional meeting will address the following issues:
• The-genesis of the network and how it was established
' ^"as/is involved in developing and maintaining the network.
• sTb^T PartidPate 3nd ^ What IeV6lS in the o^-'io
Subjects the network covers.
• Vehicles used for exchange and means of communication used
Topics on which exchange is taking place
'
directions and changes anticipated for the network.
1 INTRODUCTION
e*a~ oK ?* Change views on
governments, NGOs and international organSons 9 ^.pants represented
^.opin^g^^^ 0" ways and means of
toward achievement of a major qoal of the Mnntl As'a-pac'fic region, and thereby work
conference's objective o7opSonaSn^n±y ?T ^ ParticiPants endorsed^
compliance and ^^^S " na-f°nal 'evel' by placin9
nce an - ' y pacn9
that objective, the meeting considered Supfln9? °J Sub-re9'onal groups. Further to
sub-regional networks She region °Ptl°nS for establi^ment of regional and
-giona, meeting at
recommendations of the Banqkok worS uSft I ,Teeting S^nerally endorsed the
Regional and Sub-RegionaNevels ^ Sen thf, ?Jf°r establishme^ <* networks at
the workshop had «JS^5»^£^S? d'Versity of countries «n the region,
'nternational Network on ErSSwSSSSElfiS pT^ re9ion-wide Asia-Pacific
sub-regional basis, drawing o™™-™^ (ASPA-INECE) on a
n the Monterey Asia-Pacilc nJffSSZSfi^^ and
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556 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 SCOPE OF ACTIVITIES
Participants in the Monterey Asia-Pacific meeting also endorsed a broad scope of
activities for regional and sub-regional networks, which includes:
strengthening national networking among institutions at national, provincial/
state and local levels;
training and capacity-building mainly at the national level, with sub-regional
and regional activities to promote regional exchange of experience and
expertise, and exposure to global developments; and
information gathering, analysis and dissemination on a wide range of
compliance and enforcement-related matters, including policies and
regulations, institutional arrangements, cleaner production, and using modern
tools such as the Internet.
The meeting agreed on several key parameters of the proposed networks:
The core business of the networks should be national-level compliance and
enforcement. While the compliance and enforcement agenda should be
broadly defined to include regulatory, legal and technical issues, as well as
incentives to promote "voluntary" compliance and public participation, it should
not be broadened to the extent that compliance and enforcement networks
would compete with other regional and global networks with agendas covering
the entire span of environmental issues.
The critical node at the national level would be the "national focal points," which
would have primary responsibility for strengthening national networks.
An important initial activity would be setting up Regional and Sub-Regional
communications systems, which might require assisting some member
country agencies to upgrade their telecommunications capabilities.
Global INECE should remain active and nurture strong linkages with the
regional networks, thereby adding significant value to the regional and sub-
regional networks' activities. Nevertheless, formal hierarchy should be
avoided, and sub-regional and national networks should feel free to
communicate directly with Global INECE (see organization chart below).
3 STRUCTURINGTHE REGIONAL AND SUB-REGIONAL NETWORKS
The meeting was also in broad agreement on the delineation of sub-regional networks
by country. Sub-regional networks discussed during the meeting included, but should not
be limited to:
the South Asia Cooperative Environment Programme (SACEP) (Bangladesh,
Bhutan, India, Nepal, Pakistan and Sri Lanka), which co-sponsored the
preparatory meeting in Bangkok;
the ASEAN (Association of South East Asian Nations) member nations
(Brunei, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore,
Thailand, and Vietnam, with Myanmar as an observer);
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SUMMARY OF REGIONAL MEETING: ASIA AND PACIFIC 557
the countries of Northeast Asia, which have recently formed a Northeast Asia
Regional Environment Program (NEAREP) under UNEP auspices (check this)
Onduding but not limited to Mongolia, People's Republic of China, and South'
t\orea), and
the Pacific Island countries (including but not limited to Fiji, Papua New Guinea
and other participants in the ADB- and UNEP-assisted South Pacific Regional
Environmental Programme (SPREP)). rwsy.unai
pnAnrio- '.^Ilf C3Se °f«S^CEPJ comP|iance and enforcement is already on the sub-regional
agenda, in the case of the others, it would be a new activity. regional
Proposed Network Levels and Their Interaction
Global Inece
ASPA-INECE
SACEP ASEAN NEAREP SPREP
Indonesia Laos Malaysia Etc.
pa4rti.cipants d'scussed several other important issues related to establishment
n hen wf IV"heS> bUt "I" "^ reaCh fU" a9reement- "Wing eligibility ft^SSSS
m the network, the quest.on was whether NGOs should have the same status as
notedTri3' and y^i"*"? Sh°Uld be included in network «**« S^a speakers
?or ao^rnmf T ln9hNGOS aS fU" ParticiPants would P°*e significant confidentiality issues
for government members, and might force the latter to participate less fully in network
mformation-shanng activities. A majority of Conference participants agreed hat the core
KS"? , bS 9°vernment a^™e*. ^th encouragement of NGO particpation at
be fuN n^ 9°VerT f^ However> there was also a minority view that NGOs shoufd
indus He, InJfnn Th the Same StatUS 3S 9°vernment agencies. Views on whether
industries and industry associations should be invited to participate in
*«** ^^ th°SS « a'nd
t°ftthe su^ma] networks w^ther formal or informal some
«n o ' W'th fu" 9°vernment Participation, would provide greater
Nt a in nrn t 6 m°re/fnous Commitment, while others called for an informal status
initially, in order to avoid delays in start-up activities.
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558 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 PRIORITIES
Regarding priorities among types of compliance and enforcement issues, some
participants urged that national and intranational issues be given top priority, while others
argued that transboundary issues and enforcement of international conventions should be
given equal attention.
Regarding allocation of limited financial support among the proposed Regional and
Sub-Regional networks, there were also differing perspectives, with some calling for
concentration of initial effort at the Sub-Regional level, while others argued fora higher initial
level of effort at the regional level, to be followed by the Sub-Regions.
5 NEXT STEPS
At the regional level, UNEP proposed to create a Steering Committee, comprised
of the sub-regional networks, NGOs and donors; to establish a Secretariat based in UNEP's
Bangkok office, with one full-time professional and one administrative staff (subject to
availability of funding); to convene a planning workshop within the next three months; and,
again subject to funding, to convene a regional conference including the new Sub-Regional
networks within the next 12 months.
At the Sub-Regional level, similar activities, including establishment of a Steering
Committee and an initial planning workshop, were proposed, but funding remained to be
identified.
ENDNOTES
1. Participants in the Asia-Pacific meeting at Monterey represented Australia,
Bhutan, Cambodia, Indonesia, Laos, Malaysia, Mongolia, New Zealand, Papua
New Guinea, People's Republic of China, the Philippines, South Korea, Sri Lanka,
Taiwan, Thailand and Vietnam.
2. Participants in the preparatory Asia-Pacific meeting in Bangkok represented 14
Asia-Pacific countries including Bangladesh, Brunei, Fiji, Malaysia, Mongolia,
Myanmar, Pakistan, People's Republic of China, the Philippines, Singapore, South
Korea, Thailand and Vietnam; plus the Netherlands. Of the 14 Asia-Pacific
countries that met in Bangkok, eight were present in Monterey.
3. See Report of the Regional Workshop for Establishing the Asia-Pacific
International Network on Environmental Compliance and Enforcement (ASPA-
]NECE), 21-23 September 1998, Bangkok.
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S^MARYOFREG10NA1-MEETING:AFR,CAANDWESTAS,A/M,DDLEEAST 559
^^^^^^^^^^
GOALS
The regional meeting addressed the following issues:
• The genesis of the network and how it was established
• What was/is involved in developing and maintaining the network
• Who is asked to participate and at what levels in the organizations.
Subjects the network covers.
• Vehicles used for exchange and means of communication used
Topics on which exchange is taking place
directions and changes anticipated for the network.
INTRODUCTION
eT^,^^^^!h°:fr>iT from Afrira m«
^^^
2 DISCUSSION SUMMARY
2.1 Day One
^^^X^^^^e^^^y^. - —0™* and
*~ni-.tinn»i. ..... . . . "w""i'"== oiiu regions, me ear v discussion rawo-,1^ «,«**!
continent, as a whole, is in the process of dS. ? discussion revealed that the
upgrading. P SS Of devel°P|r'g an infrastructure for environmental
2-1-"1 LegislativeFramework
stages of development meooun rie £h J ^1^ ' "T"1 *ey are at differe"1
,rom toxio waste and .
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560 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
conventions and protocols. Some, such as South Africa, are signatories to conventions and
protocols, have some laws in place and a comprehensive bill in the making, but do not yet
have an enforcement enabling act. Some countries, such as the Benin Republic, have bills
before their Parliaments and expect to have laws in place this year. Others, such as Uganda,
are developing laws and regulations in hazardous waste, air and conservation. While studying
proposals, some countries such as Tanzania, Kenya and Zimbabwe are relying on "19th
Century" laws. Efforts are being made in some regions to harmonize laws and policies for
environmental management, and a treaty is expected to be enacted by Uganda, Kenya and
Tanzania by mid 1999.
2.1.2 Enforcement Systems
While some remarkable exceptions, enforcement capability is at an earlier stage
of development than legal development in Africa overall. While there are known disadvantages
to being at an early stage of development, the countries which are at those earliest stages
have the advantage of being able to learn from the experiences of more developed
enforcement systems.
As the African nations are fully aware, Africa is no a single place. The ecosystems
of the continent do not follow national borders. Communication and transportation between
different parts of the continent is difficult. While some nations are industrially developed,
others lack communication ties, such as Internet access, which would provide tremendous
support in developing their own enforcement systems.
Regional networks for enforcement cooperation, which exist in some parts of the
continent, have met with various degrees of success. They are based on common
geographical ties or agreements to protect common ecosystems.
2.1.3 Enforcement Network Approach
Several points of agreement were reached based on the first day's discussion. First,
irrespective of the status of countries' status with their laws, each should be working in
parallel with each other to build enforcement capacity. Each country needs links to the world
and to INECE, specifically through Internet access.
Because of the wide variety of ecosystems and weak communication infrastructure,
it is impractical and unnatural to consider Africa a "region" for the purposes of setting up
networks. Emerging from the discussions were five identifiable regions to focus on,
notwithstanding possible overlap between those regions due to geographical ties.
The development of those subregional groups would be the focus of discussion during
day two. Specifically, the group would try to identify existing protocols to build on in those
subregions; establish the most advanced countries in the subregions as links to INECE and
the other subregions; identify key institutions in the regions as focal points; identify key
people who would take responsibility for future contact and activity.
2.2 Day Two
In identifying subregions, the participants agreed that they needed to be flexible.
They recognized that the subregions needed common or current issues to bring them
together, which issues would provide a measure for progress. The regions needed to be large
enough to have a capacity to share, and small enough to share concerns. As a starting point,
five natural subregions emerged: West Africa, East Africa, Southern Africa, North Africa, and
Central Africa.
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SUMMARY OF REGIONAL MEETING: AFRICA AND WEST ASIA/MIDDLE EAST 561
goals: ^""^ representatives met with other ^embers of their subregion with the following
f,M?iC 39enda for two years- What can realistically be
Under what conditions, and under what restrictions?
rm °bjective for the subregion, and the sequence of
Identify a "focal point" person for the subregion. This person should have the
S^'Sf0" ?*?'? t0 S6rVe 3S 3 C°ntaCt P°int with the other
and with the rest of the world (e.g., INECE).
2.2.1 East Africa
East African agenda, as articulated by the participants, was to move
hS firSt specific objective of the region was to create for specific sectors (such as
amo^T^
and compliance. To better utilize existing resources, the group agreed to encouraae the
"^^ " b°th °Vernment
The second specific objective was to create a capacity for
« — • * ~ ^-
Identify common issues for the subregion.
Ih?^,98 °f experiences in the medias needing enforcement and compliance
In£r~ ^r6 Creat'ng 3n awareness amo"9 enforcement agencies, criminal
fish eto )6 enVir°nmental insPectors, and sector inspectors (game, forest,
Develop training for the above listed groups.
Establish modest documentation centers.
Seek financial^ technical and facilitation support for the training and market
the training when it does become available.
2.2.2 West Africa
In formulating an overall agenda, the West African countries identified several
wavs
The group identified priority actions as follows:
Establish national networks for enforcement within the individual countries.
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562 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Help in the efforts by individual countries to harmonize environmental
enforcement laws within their countries.
Help ensure that each individual country has an environmental policy.
Provide training for inspectors, environmental lawyers, judiciary, law
enforcement officers, and media.
Promote information exchange and dialogue between agencies to build a
political "will."
Establish a secretariat for the network, and acquire donor/government
assistance for the secretariat to establish a communication network
(telephones, fax machines, internet access, document center to be publicized
within the network). .
Hold subregional meetings, either separately in English and French or with
translators.
Nigeria was identified as the focal point contact for the West African network. Within
the network, the national contacts would be the enforcement directors of the countries'
environmental agencies. All of the meeting participants agreed to participate in the network.
2.2.3 Central Africa
Central Africa has an existing agreement and common program among its seven
countries. It includes an Executive Committee and is set forth in a detailed paper.
The overall agenda for the Central Africa network would include:
Evaluation and strengthening of the existing networks (forest ecosystem
network; wildlife conservation ecosystem network) and management of
environmental information.
Utilize the institutional and legal frameworks of those existing networks to
establish formal arrangements between the countries, and other regulations
concerning management of the Central Africa network.
• Identify funding sources for the network (states/donors/NGOs).
The initial focus for the Central Africa network and its nations would be:
Creation of a Central Africa Network Commission, with a Secretariat;
Coordinating Committee; member nations (Cameroon, Democratic Congo,
Rep. Congo, Gabon, Equatorial Guinea, Chad, Central Republic); membership
of NGOs and other funding sources.
Organization of workshops to accomplish the creation of the Commission
described above.
Goals of the workshops would be to (1) elaborate objectives for activity, (2)
determine priorities, (3) Plan specific training programs.
Training programs would be designed to (1) help member nations with
development and implementation of environmental codes, (2) train inspectors
and staff in compliance and enforcement field, and (3) teach member nations
how to obtain financial, human and material resources.
Cameroon was identified as the focal point for contact with the Central Africa network.
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SUMMARY OF REGIONAL MEETING: AFRICA AND WEST ASIA/MIDDLE EAST 563
2.2.4 Southern Africa
The initial objectives of the Southern Africa network would be to:
' ™manlati°nal T 8li« idSntify key instituti°ns ^d individuals involved in
compliance and enforcement issues. After each country does this the
information will be used to create a regional database.
Bring the key individuals and institutions together.
* IdBntffv8^8"1^08 'I*01131 netW°rk worksh°P- The goals would be to
rnnnJ V f *« member nations have ip c°<™on; foster possible
cooperation; identify capacity building needs in the region ^OSSIDie
1 to train jud9es- inspectors (such as waste
and rionaeel
""0 Pr°ieCtS f°r cooperation- Possible Projects might be the
l " C°0peratl°n °n Waste management issues at a national
sma ' ZJ? ?,bWe WaS identified as the regional coordinator.
nS^S^^-^S^' all.particiPants a9reed to facilitate Southern Africa
Seveloped communication, e-mail capacity of members must be
2.2.5 North Africa
3 DEVELOPMENT OF CONCRETE PLANS
nm,,« DD®si9nattedimembers of each region reported their objectives back to the entire
group Participants shared their observations about the approach of other regions and rated
"rsoZ r°f theT t68 and 6aCh Otherre^n9 the «tta«n^3K*S?S?
African reafon f™n ' th6 re9'°nS t0°k different aPProac"es. For instance, the Southern
Af cf mn?l tfocustd,0n common lssues as a way to draw member nations together West
However different the regional approaches, common issues arose in every case:
* ^Thdin9 f%meftin9,s and training is an issue. Participants asked the NGOs
at the meeting to talk about funding possibilities.
* theTSef J0n WitNn aPd am°ng thS regi°nal networks requires a«ess to
Technical and financial support from INECE is critical at this stage.
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5S4 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Having established and shared overall goals, the members of the regions met again
to identify the concrete "first steps" they would take to further their regional networks.
3.1 East Africa
The first steps to be taken by the East African region are as follows:
Addresses of conference participants have already been exchanged.
A network of the participants will be used to spread information. Each country,
at no cost, will compile a directory of people and institutions, which will then
be exchanged. Information about the network will be shared with those identified
in the directory.
The e-mail capability of three countries will be used to conference.
Two simple newsletters will be published, in January 1999 and July 1999. The
first will describe INECE conferences; share basic issues from region nations;
spread the message that Africa is moving in the direction of compliance and
enforcement; and encourage involvement. The NGO partners agreed to take
on the task of the two newsletters, which have a total cost implication of about
$5000.00.
The region identified four major activities which it hopes to accomplish:
Draft a strategic action plan by June, 1999, covering networking, compliance
and all issues in common among the countries in the region.
Hold a network workshop in August, 1999, to build consensus among the
member countries, come to agreement on future programs, and create a sense
of "ownership" of the network for members.
Get thirty people trained as trainers to sustain the activity of the network, in
March, 1999. The focus of the training would be multimedia inspections and
the principles of enforcement.
• Establish a compliance and enforcement center. The facilities for the center
are already available. The major task will be to obtain compliance and
enforcement materials.
3.2 West Africa
The first steps to be taken by the West African region are as follows:
Identify issues which cut across the region (transboundary hazardous waste
movement, for example).
Contact each nation's focal point in ECOWS secretariat.
Send a first letter to notify member countries of the new network, and identify
other issues of common interest.
• Responses will be used to plan a regional workshop on identified issues.
Secretariat of ECOWS will make an effort to get commitment of the states,
and to educate them.
Nigeria agreed to temporarily fund correspondence.
• A second letter/questionnaire will be mailed , and responses elicited to:
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SUMMARY OF REG'ONAL MEETING: AFRICA AND WEST ASIA/MIDDLE EAST 565
Develop a profile of issues and concerns of the member nations
Jn enforcement and compliance in the
Identify resource people to participate in and conduct training on the issues
Members will initially exchange ideas by mail and e-mail
in "»«««-." '-he n*n «o
'
an,
A discussion of the findings from the initial work
3.3 Central Africa
The first steps identified by the Central Africa region are to:
' conference6""9 ^^ *" regi°n t0 diSCUSS the plans devel°Ped at this
in the networks described and
• Execute the plans described in the Goals as they are approved by members
• Most important, obtain funding to hold the necessary meetings.
3.4 Southern Africa
The steps the Southern Africa network will take during the next three months
• Prepare detailed briefs for key institutions in the member nations
are:
oused ''1136 3t the nati°nal level- That informa«°"
tod -
nror . t bank' and as a start for workshop planning, During
nd a ™^ f ?,eS n0t rePresented at ^e conference will be identified
and a summary of this meeting will be circulated to them
n * th t at the national level ^ich can be
aces P " k' SUPP°rt worksh°Ps. a"d »upport secretariat
the network- That process WOUId be^in
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566 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
4 CONCLUSION
In reviewing the work that had been accomplished during the six hours they met in
session, participants noted marked similarities among the approaches of the developing
regional networks. All of the plans focused on filling the gaps between political agreements
and laws and actual field activities. All of them focused on capacity development in both
training and communication. All of them saw a need and developed plans for databases of
key contacts in national governments, NGOs and agencies. And though the participants had
clear ideas about issues of common regional interest, they all decided that their proposals
should be discussed in a wider circle at launching network workshops.
There were also differences in the regional approaches. Some sought to meet needs
with central document and training material centers. The issue focus was different among
the regions. Southern Africa focused on CITES. In the East African region, Lake Victoria was
a common concern. In the West African region, national capacity in the hazardous waste
field was a binding issue. And Central Africa was concerned about forest and wildlife
ecosystems. In both Central and West Africa, the networks will face and have to contend
with problems of communicating in bilingual settings. Some of the programs were detailed
to the point of costing out activities; others were broader and entailed virtually no initial costs.
The meeting of the participants from the African continent generated a tremendous
amount of enthusiasm. All of the participants expressed a willingness to spread the word
about network goals and activities and made a personal commitment to continue sharing.
Regional coordinators were selected, and arrangements were made to continue
communications and sharing both between and among regions.
The participants were hopeful that within a year databases would be established,
consensus building workshops would be commenced, communication networks would be
set up, and future plans would be clarified. They all recognized, however, that the goals could
not be accomplished without financial and technical support from INECE. Without trigger
money, even the basic communication goals would be beyond the financial reach of some
participating nations.
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REGNER, KIA 567
BUILDING REGIONAL AND GLOBAL NETWORKS
REGNER, KIA
International Federationof Environmental Health, Tal.holmsv 5, 185 94 Vaxholm, Sweden
SUMMARY
Associatl^nt^^
research work within this ffeTd as wJn « * * especial|y en3Bged in education and
organizations We" 3S 8 Associate members e.g. subnational
1 THE CONCEPT OF ENVIRONMENTAL HEALTH
(Definition by WHO)
^.^"r^
Development summit mealing In Rio de Janefro n 1992 wh?n ,h Environment and
:^hf^^^
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568 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
The 1st article of the Rio Declaration reads:
"Human beings are at the center of concern for sustainable development. They
are entitled to a healthy and productive life in harmony with nature."
In short environmental health is an integrated approach to environment and health
protection issues. It is important not to make this into a semantic issue but to try to look
at what is actually carried out and what responsibilities lies within the field of Environmental
Health and in what way professionals in different countries can be of help to one another in
developing environment and health protection and strategies to achieve this.
2 ENVIRONMENT AND HEALTH PROTECTION PROFESSIONALS,
ENVIRONMENTAL HEALTH ADMINISTRATION AND RESPONSIBILITIES
In many countries environment protection and health protection are carried out by
parallel organizations with too few links between them. This may very well lead to less
effectiveness and wrong priorities in both areas.
In other countries a tradition has developed to work .with environmental protection
from a health perspective. This gives the opportunity to take a more holistic view when it
comes to identifying problems and finding solutions. The current development of National
Environmental Health Action Plans is a token of a rising awareness of this.
The Swedish system can serve as one example of environmental health work.
Supervising and monitoring the environment is mostly carried out at Local Authority level
(Sweden has 288 Local Authorities, with a very high degree of self governance, all of which
has an Environment and health protection committee).
Their responsibilities of supervision and correction lies within the fields of:
Industry, of which small and medium sized enterprises make up the big part
and also causes many problems since they often are not clearly regulated and
often lack environment expertise and resources.
Air, ground and water protection and surveillance.
Noise, both outdoors and indoors.
• Chemicals.
Waste management control including hazardous waste.
Waste water handling.
Indoor climate; radon (very often from the ground or the ground water),
ventilation (where the outdoor air is an important factor), mould (wrong
construction or building sites), etc.
Public places and beaches.
Farms both with and without live stock.
Drinking water.
Food safety, "from seed to feed" which means not only hygiene factors but also
the production, distribution, handling and consumption of food. The
environmental impact from the food chain is today assessed as being one of
the major areas we have to tackle.
• Nature protection.
Animal welfare.
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REGNER, KIA 569
Pest control.
Spatial planning procedures.
Information and participation programs involving the citizens
organ,zations (this usually being part of the lo J AaenSTTi
?wPdPnti0nta' Hea'th JS n0t inC'Uded in the Environmental Health work in
Sweden as ,t » ,n many other countries. Occupational Health work has a st ong
affinit to environ 9
.
affinity to environment protection work.
TRAINING AND STAFFING
effect TMs CoT^T'8' I""6 "" been "^"^ °° ln Swede" and »™ *>™Hly come into
«h" doIeTin^reS'S"™: "ment "" HSa"h Pr0teCti°n 'aWS and furthar ^#— ^
« THE GENESIS OFTHE NETWORK AND HOW ITWAS ESTABLISHED
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570 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Members of the International Federation of Environmental Health are National
Organizations of Professionals working with all or only part of the Environment and health
protection areas mentioned above. The International Federation of Environmental Health also
has Associate members and Academic Associate members which are likely to be academic
institutions or research organizations involved in environmental health work.
The International Federation of Environmental Health can be seen as an umbrella
organization and most of the actual work is carried out on a regional or sub regional level.
The International Federation of Environmental Health currently has four regional groups: The
International Federation of Environmental Health African Group, the International Federation
of Environmental Health Americas, the International Federation of Environmental Health
Europe and the International Federation of Environmental Health Pacific Rim Group.
International Federation of Environmental Health was inaugurated in September
1985 and incorporated under U.K. Company Law as a company limited by guarantee and
having no shareholders.
Its Constitution is to be found in its Memorandum and Articles of Association which
includes the objectives of the Federation and also provides for the election of officers.
The Executive body of the Federation is its Council. Member organizations are
entitled to appoint one member for each one hundred of their members subject to a maximum
of three members. The Council normally meets once or twice a year, which is an organization
run on an honorary basis.
At present International Federation of Environmental Health represents 30-40,000
Environmental Health Professionals. National Organizations of Environmental Health
professionals in Australia, Botswana, Canada, Cyprus, Denmark, United Kingdom, Finland,
Germany, Greece, China (Hong Kong), Indonesia, Ireland, Kenya, Latvia, Malaysia, Malawi,
Mauritius, New Zealand, Norway, Scotland, Singapore, South Africa, Sweden, Tanzania,
USA, Zimbabwe are full members of the International Federation of Environmental Health.
Iceland and Austria are about to join. The International Federation of Environmental Health
network also includes Academic Associate members the Associate members and thus
represents a much wider area that the countries mentioned above.
5 DEVELOPING AND MAINTAINING THE NETWORK
The International Federation of Environmental Health network was established
through the cooperation between professionals in the U.K., Australia, Scotland and Ireland
and came from the need to exchange professional advice and expertise in order to develop
the profession
In the former British Commonwealth countries a similar legal system and
professional concept had developed which facilitated the identification of brothers and sisters
in the trade. There also existed an exchange of professionals and joint education of
professionals. Not only former British Commonwealth countries had this tradition. For
example, Sweden also had adopted a similar approach and was also part of this early
cooperation which during the 1980s developed into the forming of the International Federation
of Environmental Health.
The International Federation of Environmental Health's inaugural World Congress
on Environmental Health was held in Australia in 1988, followed by the second World
Congress in the U.K. in 1991, the third World Congress in Malaysia in 1994, the fourth World
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REGNER, KIA 571
~~
PARTIClPATH ANDWHAT LEVELS ,NTHE
' SUBJECTTHE NETWORK COVERS
iummarizeTaslotwf mati°nal Federati°n °f Environmen^' Health objectives can be
To provide a focal point for national officers, whether in state or inrai
government, or private employment, whose concern is the con7ro° a the
environment in the interest of public health.
1° provide f ™eans °f exchanging information on environmental health
matters, mcludmg systems of organization and management
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572 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
To promote the study of environmental sciences and to exchange information
about training and education.
• To promote field studies of environmental health control and research and
disseminate knowledge concerning environmental health.
• To promote the interchange of persons engaged in environmental health work.
8 VEHICLES FOR EXCHANGE AND MEANS OF COMMUNICATION USED
The International Federation of Environmental Health Directory holds primary
information about its members. This information can also be obtained through the Internet.
So far our primary means of communication is via mail or faxes but e-mailing is fast
developing. In some countries however it's very difficult to rely on some of these electronic
systems so so far we are taking a flexible approach meaning that we use different means
of communication with different members. This of course is not.very effective but has so far
proved to be the most reliable sort of communication.
The International Federation of Environmental Health newsletter is used to circulate
information among the members primarily used after each council meeting or other major
event.
The biannual World Congress on Environmental Health and the International
Federation of Environmental Health Council meetings are also major links in this chain that
keeps the Federation together.
The regional groups are motors in many ongoing projects especially when it comes
to professional exchange. Within the regional groups it is easier to keep up personal
contacts even to have more frequent meetings of both formal but mostly informal nature.
Within the International Federation of Environmental Health Europe group e.g. there is a
special "twinning" agreement between the member organizations in Ireland, Northern Ireland,
Norway and Sweden which is set up to facilitate professional exchange and also student
exchange. Some of the International Federation of Environmental Health member
organizations are engaged in educational programs aimed at developing environment and
health protection in East European countries.
9 TOPICS ON WHICH EXCHANGE IS TAKING PLACE
International Federation of Environmental Health has adopted some policy
statements covering some areas of work that have been found of great importance.
These policy papers cover issues like:
Access to adequate environment and health education for enforcement officers
within the field.
• To ensure that environmental policies are continuously monitored and reviewed
and have regard to best practical means.
To attempt to develop locally policies on the environment which have an
international context.
• To cooperate with others.
• To work for access to clean drinking water for all.
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REGNER, KIA 573
In this context it is important to remember the work presently being done by the
countries of Europe to set down National Environmental Health Action Plans. This work gives
strength to the concept of Environmental health and the integrated approach to environment
and health protection.
Within International Federation of Environmental Health we strive at getting an
overview of professional practices in different areas and in different countries and try to see
in what way we can learn from each other, develop our practices and our administrative
framework and eventually harmonize some of our practices.
10 HOWTHE NETWORK OVERCOMES DIFFERENCES IN LANGUAGE AND
LEGAL AND OTHER DEFINITIONS OFTERMS
So far we have been able to operate with English as our common language However'
that is becoming increasingly difficult and to some extent we must now rely on individuals
that can help out as interpreters. In some cases we have had help from WHO in translating
documents for circulation. Since the financial basis for International Federation of
Environmental Health is still very weak and depending on honorary work and minor
membership fees we will probably have to keep to this limitation for the near future
The International Federation of Environmental Health as an organization has so far
not really had to tackle severe definition problems other than the definition of environmental
health or environment and health protection. However these questions do come out in all
kinds of professional contacts between individual members of the organization One way
to solve this is to constantly have in mind that you need to try and get at the heart of things
and not react at its face value. This is a further incentive for trying to get people to have
personal contacts and also to go for professional exchange.
11 FUTURE DIRECTIONS AND CHANGES ANTICIPATED FOR THE NETWORK
A major area of work is to try to identify professionals and if possible professional
organizations in many more countries. There certainly are professionals dealing with these
matters in almost all countries but since there very often are no organizations to contact we
need to find other ways to communicate.
We have also been asked and have offered to help organize professionals in
countries where such organizations do not yet exist.
The development of closer cooperation with other organizations in this field
The development of the concept of environmental health or environment and health
protection and to what use it can be especially in the newly emerging states in Eastern
Europe and also in some other countries.
The implementation of international agreements and the enforcement at the local
level of environmental health legislation but also the necessity to try to influence these
documents before they are agreed upon in order to give feedback on possible implementation
i.e. the London 1999 Ministerial Conference on the follow up of the National Environmental
Health Action Plans process in Europe with all its background papers and drafted outcome
papers.
The development of methods to assess and evaluate our work.
The development and eventually harmonization of professional procedures and
methods is a vast but extremely important area
The promotion of education to become an enforcement officer with skills necessary
to implement and enforce legislation.
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574 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
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CLOSING REMARKS 575
CLOSING REMARKS
HERMAN, STEVEN A.1 AND VERKERK, PETER J.2
1 Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S.
Environmental Protection Agency, 401 M Street, SW MC 2211 A, Washington, DC 20460
2 Inspector General, Inpsectorate for the Environment, Ministry of Housing, Spatial
Planning and the Environment, IPC 680, Rijnstraat 8, P.O. Box 30945,2500 GX, The
Hague,The Netherlands
Dear participants, on behalf of the Executive Planning Committee for the Fifth
International Conference on Environmental Compliance and Enforcement, we bring this
conference to a close. We want to thank the speakers, the moderators, the facilitators,
rapporteurs and of course you as participants for your excellent contributions in the plenary
sessions, the workshops, the regional meetings, the exhibit materials, demonstrations and
also the clinics. We may conclude from your enthusiasm, without having seen your evaluation
forms, that we had a very successful conference. We have a final count of 245 participants
from 101 countries and international organizations.
We realize you had to work very hard during this conference. Not only the plenary
but also in all the workshops you participated in. You were a perfect audience for our speakers
and you did a very good job in the workshops. Let us always keep in mind what that hard
work is for our personal and professional commitment to protect the health and environment
of our citizens. We opened the conference with a vision and direction for our international
networking and for environmental compliance and enforcement. With the discussions and
active participation of each of you over the past-five days we are well on our way to realizing
that vision. We hear comments from all quarters about how important the conference has
been, but it will be like unenforced laws and just a nice memory of Monterey unless you take
what you have gained from this Conference and put it to work for you and for all of us.
We were inspired by speeches of U.S. EPA Administrator Carol Browner who
described environmental enforcement as an essential pre-condition to realizing environmental
gains under most regimes in environmental law. She made it clear that the business of
environmental protection is one we must do and do well for ourselves and our future
generations, particularly for the health of our children who are disproportionately affected by
pollution. Her very strong message was echoed by the words of Mr. William Nitze, Assistant
Administrator for International Activities, of USEPAand Mrs. Lois Schiffer, Assistant Attorney
General of the United States Department of Justice emphasizing the importance of
cooperation and exchange of approaches, information and effective communications and
training whether it is at the international level or at the national level to make environmental
compliance and enforcement happen.
In our opening remarks, Pieter Verkerk emphasized the international nature of
environmental problems and environmental enforcement. He called for greater attention to
environmental concerns in international and domestic political policy agendas to create the
necessary conditions for establishing an adequate environmental compliance and
enforcement program in each country. He pointed to a recent study which showed pollution
levels were 30% higher than they should have been with full compliance which challenged
all of us to communicate better with the politicians about the environmental results of
enforcement rather than just the principles of law and order.
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576 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Steve Herman stressed the underlying importance of environmental compliance and
enforcement to:
Punish those who do not comply with the law.
Require cleanup of polluted resources and ensure repair of the damage caused
by pollution.
• Deter those who may be thinking of breaking the law or cutting corners.
Ensure that those industries and businesses who obey the law are not put at
a competitive disadvantage to those who violate the law.
Prevent the creation of pollution havens.
• Protect human health and the environment.
Encourage healthy and sustainable national and international economies.
Encourage and strengthen voluntary and incentive programs.
He also laid out several directions that environmental compliance and enforcement
are taking:
Networking at all levels, from in-country networks to regional and global
networks.
Ensuring public accountability and public participation in enforcement.
Taking firm, fair and visible enforcement.
• Finding the right balance of "carrots and sticks."
Harnessing new technologies and approaches to detect violations and
monitor compliance.
Achieving the potential of environmental management systems.
Creating a seamless web to stop environmental crime.
Throughout the excellent panel discussions during our plenary sessions we heard
example after example of ways that each of us, working together, is making enforcement
happen. What will be needed in the future to realize the promise of enforcement and
overcome its setbacks? We learned about the importance of an educated and supportive
judiciary; of a pragmatic scheme to recognize the realities of coming into compliance while,
holding the line against violations of the law; of true public access to justice and information;
and of in-country networks. We learned of a national inspection initiative to launch a program
and of finding ways to confront the sometimes outrageous behavior of environmental
criminals. We learned of new ways to link environmental compliance and enforcement to
pollution prevention approaches with market forces, permits, and public disclosure. We heard
about colleagues overcoming disappointments in applying citizen rights granted in the
constitution and of cleaning up shellfish beds after the public was mobilized following years
of lax enforcement. We saw examples of creating incentives for compliance and improved
environmental management and of finding efficient ways of training our personnel and using
communications about performance and enforcement policies to leverage greater
compliance. Finally we saw the value of cooperation in international policing and cooperative
relationships needed to prevent and remedy illegal shipments of hazardous waste and
chemical substances.
We are unable to summarize here the work of all the workshops, but we have
highlighted the workshop results in the Addendum to these remarks. This is only to say that
much work was done and some new ideas and approaches have emerged.
-------
CLOSING REMARKS 577
FUTURE OF INECE
m-mK After this successful conference, what is our vision of the future of INECE? The
members of the Executive Planning Committee of INECE had two meetings during he
SUSS?? ?CUSS JtS fUtUre refleCting the C°mments we heard from y°u- the Plants
at the Fifth Conference, during the Conference, and also reinforced by the outcomes of the
Schnff? ^ h S,h°rtl WS 3re C°mmitted t0 b°th maintainin9 a st™g 9 52 neSlork
^mmS H t * Umqu! ^ on environmental compliance and enforcement and we are
committed to concerted efforts to foster, regional networks. The regional networks are
nron l8 tO br°aden the breadth ™« depth Of
our contacts, to deliver training and to meet other capacity building needs through reqiona
cooperafon and to link with natural trading partners in their efforts to ensure a level pfa°"ng
Si2?i H "T0?3 and meetings Can also better address Particular environmental
problems and needs of specific areas of the world and use common language. For all these
SW
use in doin9 this
th WP nh crgamzations and ties where appropriate. But this does not mean
that we w,ll only rely on regional meetings and networks. Our conference in Monterey has
S«TJ ml*? "eed !nterti0na' conferences in wh^h you as participants have the
ESS °f meeting, networking, exchanging information and learning from each other
regardless of where we come from around the globe.
»„* ^ Enforcement must be made more prominent on the international political policy
agenda to support adequate enforcement and inspection structures in each country With
Srf n°! T "lfde f imP°rtant steP in t^ right direction but we will do our part at
Tlt0 ^f r INECE With UNEP Secretariats and our own country offidals to
S T ,befor! and h°pefUlly TOt after intemational agreements are completed
'SICIpa!? tknowhow important enforcement of environmental legislation is at both
!° 3 innemKa^nal 'eVe'S a"d y°U Surely wi" be able to brin9 *** to the agenda
pohtiaans. Our NGO network continues to be an important driver of compliance and
f virnnmP9n7?'inme,nlPr09raml!- Y°U as ParticiPants know how important enforcement of
environmenta legislation is at both the domestic and international levels. You surely will be
able to bring this to the national agenda.
*tmrt,,r W^ ^° ^T *° Stren9then the re9ional networks, which should not only provide
ReaSmi °CUS -T T tSnt 3nd the Way we wi" 9et to a be«er environment.
Regional meetings may provide a foundation for exchange possibilities on which we can build
and serve as a feeder of information and as a backbone for the participants all over the world
rnfh enforcemen* networks countries within a given region have the possibility of
theactua content of enforcement of environmental legislation. Our conference
J P?J«fante from 86 countries and 15 international organizations proves
m EnvirolTf ,? 3l ,networkin9- That is the reason we started the International Network
on Environmental Compliance and Enforcement, INECE. You have clearly told us only again
nplTJ1 f conferences in which you as participants have the possibilities of meeting
networking, exchanging information and talking about actual enforcement activities
tho fn ? 1 "?ECE netW°rk and the regional enforcement networks require backing in
!«= a fo f a Sfrelariat capable of providing assistance and support to participants and act
as a focal point within the region and the other regional INECE secretariats
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578 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
In addition to its general duties, the INECE secretariat will assist regional
secretariats, maintain contacts and provide support where requested and will also promote
development and progress within the networks. We will discuss progress with the Executive
Planning Committee together with key representatives from the countries participating in the
regional enforcement networks.
The international enforcement conferences—which have been held every two years—
might take a year or two longer and perhaps be on a smaller scale than the current ones if
it is advantageous to be coordinated and combined with —a regional conference. We will
be reviewing the frequency and the needs for the next international conference with the EPC
and will likely schedule one at least every three years, based upon the need.
We, with support from the Executive Planning Committee staff, will be working on
these issues and for ongoing networking we will advance our Internet homepage and the
INECE Newsletter as well as ongoing workgroups on selected topics. We of course solicit
your contributions to the newsletter and additional papers for publication.
As you have heard our vision is a very positive one but it stands or falls by your
participation in its most active form at the regional and global levels. We are convinced'that
together we can further shape our vision of the INECE's future during the next years. We count
on the existing and future regional and subregional networks.
The Executive Planning Committee had very good discussions on future
developments; we promised to discuss these further and present results in due time.
You have the full commitment of the INECE partnership, including the NGOs present
at the conference and its members of the EPC to support you in building capacity for
environmental compliance and enforcement through ongoing networks and through channels
and projects to cooperate on environmental enforcement. We will continue to expand the
resources available through our internet website, create global workgroups on special topics,
issue a periodic newsletter, and publish additional papers. Environment Canada will complete
work they started on the directory of enforcement officials engaged in hazardous waste
transport.
We are embarking on a concerted effort to find stable sources of funding for the
INECE Secretariat.
We will end then where we began, challenging each of you to leave here with several
commitments first, to make the environment a matter which should come first; and second,
to work toward in-country, regional and global networks. These networks should serve you
well and help you to reach your goals for developing and improving environmental compliance
and enforcement programs and to solve specific environmental problems. Without clear goals
for improving our institutional capacity or for addressing environmental problems
improvements are unlikely to take place. Where international cooperation can help to meet
these goals, that too needs definition of specific projects or tasks and make your job more
effective.
We wish you all a very good journey home and a very successful enforcement
network going.
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CLOSING REMARKS 579
ADDENDUMTOTHE CLOSING REMARKS: WORKSHOP HIGHLIGHTS
THEME #2: COMMUNICATIONS, PUBLIC ROLE AND COMPLIANCE MONITOR.NG
Workshop 2A Communications and Enforcement
Workshop 2B Public Role in Compliance Monitoring and Enforcement
Workshop 2C Compliance Monitoring
Workshop 2D Multimedia (Integrated) Inspections and Permitting
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580 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
environment. However, the advantages of multimedia permitting and inspections do come
at a cost. Most governments do not currently have personnel with multimedia experience,
and it is feared that where regulatory staff operate across all media, there is an accompanying
loss of expertise to each individual medium. There also may be a need for substantial
reorganization of regulatory agencies in order to achieve true integration across programs.
Workshop 2E Source Self-Compliance Monitoring
Source Self-Compliance Monitoring contributes to the overall efficiency of a
compliance and enforcement program and part of good business practice, important for both
the regulator and operator. Participants agreed that the current trends toward delegation of
many government functions and satisfaction of international standards like ISO 14000 had
to clearly respect the role of government to continue to evaluate monitoring results.
Workshop 2F Detecting Hidden Operations
Detecting Hidden Operations continues to pose a problem in knowing where to look,
lack of adequate cooperation and information exchange among agencies, and lack of training
of police officers to detect hidden illegally operating facilities. Innovative techniques can be
promising including mapping sensitive sites with aerial photography to develop a data base
and baseline to monitor changes; use of environmental criminal intelligence and analysis;
comparative data from similar time or events overtime such as composite samplers hidden
in manholes; looking at chemical signatures including oil from ships; blending traditional
criminal investigative techniques with regulatory inspection techniques; using microtaggants
and DMA analyses of selected endangered species to develop a database; use of global
positioning systems to monitor barge and ship channels; and use of tips from networks
established with other government agencies and citizen volunteers. The most promising
actions seemed to be training of law enforcement authorities to recognize environmental
violations and provide initial response.
THEME #3:"CARROTS AND STICKS"
Workshop 3A Structuring Incentives f or Private Sector Compliance
Structuring Incentives for Private Sector Compliance are widely used throughout the
world. There are many different sorts of incentive: economic incentives such as tax breaks
for investments in environmental technologies; legal incentives, for example, restraint from
criminal prosecution to encourage disclosure; regulatory incentives such as fewer inspections
for industry with a good compliance record; and public relations incentives such as award
schemes. Success or failure of these schemes depends on them being carefully crafted to
meet the needs and aspirations of the regulated community. To make incentives successful,
it is important for regulators to provide technical assistance, while at the same time,
continuing to monitor the state of compliance through inspections and other means. However,
the use of incentives must be backed up by a clear understanding on the part of the regulator
and the regulated that non-compliance may lead to strict and punitive enforcement.
Although, in some countries, regulators are considering whether it would be sensible to adopt
different enforcement strategies for companies using environmental management systems,
to date, regulators have not done so because such systems do not provide a guarantee that
accredited companies are not polluting the environment.
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CLOSING REMARKS . 581
Workshop 3B Environmental Crime
Environmental Crime was difficult for the group to define. It was apparent that different
egal systems .„ the different countries treated violation of environmental hj?req!irements
to bfoSeShurn33' tTST1 a9reed ^ °ne had t0 '°0k at Whom or wnat was "*nd3
to be protected (human health/environment), the seriousness of the damage/risk the size
or tne geographical area or population affected and any financial gain accruing to the violator
in nthtrc 1°1 *aCtL0r:'" S°me countries there nad *° be a criminal intention for negligence
S corporate criminab|iabiatPPr°a ^ ad°pted- Not a" countries recognized the concept
Some countries had a very clear list of what was regarded as^vlronSaf crime "n'eS'
if Pnfnrrl™3* 9f * * ^^^the following Points should be addressed in all countries
if enforcement of environmental law was to be effective:
• .Education: the general public and "regulated" community should be well
informed as to environmental law requirements and the benefits flowing from
compliance with such requirements.
IrainJng: judges, police and prosecutors should be trained to enable them to
properly assist the environmental agencies.
' Speeding up of the judicial process: delays in court proceedings are not
conducive to deterrence.
' gS^'JS,*0^ ""*"?*?the lon" I".™. "-"-*» of environmenta.
Flexibility: legal and administrative systems should be flexible enough to qive
the appropriate response in each case.
Workshop 3C Citizen Enforcement
Enforcement is an important aspect of an overall enforcement strategy It
T anri «,.oport government efforts and the overall achievement of common
oals of environmental protection. Although standing to go to court
use other tools, such as direct action, lobbying, negotiation, training, and public
coalition J J^n v 9°vernment can cooperate directly through formation of
coahtions, open citizen access to information, citizen-government-industry negotiations
direct lines of communication, and citizen delegation of monitoring and inspection tasks'
onfJ^"8 ,many comm°n obstacles in seeking an effective role in enforcement
enforcers are looking ahead to concrete solutions to these obstacles, such as:
Improved public access to information.
Clear environmental standards, to ease the burden of proving harm and
csusstion.
Quicker judicial processes, including a judiciary well-informed about
environmental law.
Broad standing for citizens to go to court to enforce the law.
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582 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
It is important for non-UNECE countries to consider acceding to the new Public
Participation Convention (AARHUS) and UNECE countries should proceed with
implementation as rapidly as possible.
Workshop 3D Structuring Financial Consequences in Enforcement: Penalty Policies ,
Recovery of Damages, Recovery of Economic Benefit of Non Compliance
Structuring Financial Consequences in Enforcement: Penalty Policies, Recovery of
Damages, Recovery of Economic Benefit of Non Compliance was structured around key
questions to address the concept of "polluter pays," and how monetary fines can be effective
in recovering damages and deterring environmental violations. All countries are grappling with
the issue of what responses to use when companies are found violating environmental
conditions. The strategy of using monetary fines is not well-developed or widespread as an
effective tool in many countries. This is because countries have a range of historical or cultural
responses including the belief that more useful tools are negotiation and cooperation, public
embarrassment, the need for quick action, shutdowns, the inability to levy fines on small
operations and a society's general tolerance for a widespread and diffuse environmental
problem. Without a culture's embracement of the use of fines as a deterrent or punishment,
establishing such financial consequences are difficult and may be even more difficult to
collect if imposed. For countries with authority to use financial penalties, the structuring of
appropriate penalties may be the role of the judiciary. The participants agreed in those
situations that the ability to "recommend" an appropriate penalty is useful especially the
ability to analyze the economics of the pollution damage. This type of analysis and economic
information is not generally well-utilized or available.
Workshop 3E Role of Negotiations in Enforcement
Role of Negotiations in Enforcement is appropriate at various stages of compliance
and enforcement, even in countries that do not provide a role for negotiation in adversarial
circumstances. Although the use of negotiation between government and regulated entities
varied considerably among countries, all countries acknowledged some use of negotiation
with regulated entities and all countries acknowledged the use of negotiation among
governmental colleagues and jurisdictions.
Workshop 3F Administrative Enforcement: Getting Authority and Making it Work
Administrative Enforcement: Getting authority and making it work is important given
the consensus that it is preferable to have available administrative, civil judicial and criminal
enforcement tools for an effective environmental enforcement program. Although the
environmental law systems of many developing countries have not yet matured to the point
where they can evaluate the effectiveness of administrative enforcement tools, representatives
of these countries recognize the advantages provided by having the discretion to act
administratively.
Workshop 3G Compliance Schedules and Action Plans
The use of compliance schedules and actions plans, particularly in conjunction with
sanctions, is a pragmatic way of recognizing the realities of what it takes to correct a problem
once government has gotten the source's commitment to do so. Workgroup participants were
given a model agreement to control environmental pollution whose parts included identifying
-------
CLOSING REMARKS 583
enterprise will implement to reduc to SfilmiSJf? ^^ measures
THEME #4: CAPACITY BUILDING
Workshop 4A Managing Centralized and Decentralized Programs
noneoMSTy^
decentralizing some or all environmental S*Ln %t V- of dlfferent arrangements for
centrally, for example P 'ed 3S t0 whether theV shou'd be addressed
' s'andlrd? reqUirements ^-pplication and determination of permits; emission
"""nuJETHSS^ " "*"• "«W*ln, the holistic
Whatever the admlnlstrat ve arang/men s a mn!;?6,8; emlronme'"=' Protection.
environmental goals will areaUv assist thTtm,f £"' focus °" aohis>'i''g specific
of oranizations " 9 a"d SUOCeSS rf«»« levels
m,
of organizations, ani eople w them 9 a"d SUOCeSS rf«»« levels
"d Rnan°in9 *•*«•»«- Compilance and Enforcement
eeowh
e pro^Z The prtn™ £, S^ f '"n9 me°ha"ism are
^^^^
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584 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
Workshop 4C Training Prog rams for Compliance Inspector, In vestigator and Legal
Personnel
Training for inspectors is considered to be the weakest link in an effective
environmental enforcement program. It lags behind demand for many reasons, mostly
insufficient resources to provide it to enforcement personnel. Training needs vary depending
upon the size of the country, the size of the enforcement program, the expertise of the staff,
and the cultural and language considerations within the country. Training is not only needed
for enforcement personnel; i.e., inspectors, staff lawyers and investigators. It is also needed
for judges, magistrates, prosecutors, NGOs, the regulated community, and of course, the
general public.
Although training needs are frequently not being satisfied, several approaches are
available and others suggested in order to bridge the gap. These proposals include new
technology like satellite links and CD ROM, teaching methodologies like train-the-trainer
programs, and exploring sources for funding and training. In this last regard, it is believed
that INECE could play a vital role in establishing a link with regional networks to. assist in
locating training programs and funding.
Workshop 4D Setting Up Compliance Assistance Centers
Around the world national, state and local environmental authorities are striving to
balance the responsibility for aggressive environmental enforcement with the equally
imperative need to provide assistance to the business community in the areas of knowledge
of the requirements of environmental law, and resources available to business to aid in
establishing and maintaining compliance. Attempts to integrate compliance assistance
activities into the enforcement role that must be played by the environmental inspector has
led to debate as to whether the inspector can be both effective enforcer and at the same time
provide assistance to a business in meeting the requirements of the law. The type of
assistance which can be provided has also been the subject of discussion. Certainly, an
inspector must be expected to provide a business with a clear understanding of the
requirements of the law and a knowledge of which agency's and which agency personnel
are assigned to monitor that business. The provision of technical advice on subjects such
as waste treatment technologies or choice of treatment systems however take the inspector
into uncharted waters.
Workshop 4E Science of Enforcement
All nations and organizations recognized the need for sound scientific and laboratory
support to measure ambient environmental conditions, develop meaningful standards,
analyze impacts to water, land and air, monitor compliance with environmental requirements,
and to enable successful prosecution of environmental law under the legal standards that
apply for admission of evidence. The discussion centered on exchanging information on
existing laboratory capacity, good practices for sampling and analysis to be admissible as
evidence, and developing regional approaches to share capacity where it is lacking. The
workshop identified existing electronic networks which provide access to laboratory and
information resources, including those set up by NGOs and other international organizations.
The participants explored financing options for enhancing scientific and laboratory support
and agreed to set up an Internet network among the participants, INECE, and others, with
E-Law on Science in Enforcement, which was on line by the end of the conference in
Monterey.
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CLOSING REMARKS 585
- • - • --- __ ___
Workshop 4F Government/Municipal/Military Compliance and Enforcement Strategies
Workshop 4G Small and Medium Enterprises Compliance and Enforcement Strategies
• Encouraging -clustering- to provide for shared treatment systems
'
Utilizing social systems to influence behavior
' aS^e°n0mleS °f SCa'e" l° make ""P^ements and deve.opment
• Developing laws to get companies to enforce against other businesses
Source Compliance Strategies and Enforcemen^on-point
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586 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Workshop 4J Geographic or Resource Based Compliance and Enforcement
Strategies
Geographic or Resource Based Compliance and Enforcement Strategies are needed
by the nations represented at the workshop particularly for watersheds, there was
recognition that an ecological approach must be employed when protecting drinking water
sources due to the downstream impacts of upstream activities. Often, watercourses cross
international or internal administrative boundaries, requiring complex and cooperative
approaches to problem solving. Protection of resources in remote areas sometimes requires
specialized enforcement responses such as covert investigations. Implementation of a
system of protected areas can ensure that nature is protected while economic development
continues on the remainder of the land base. Industrial globalization has resulted in the
presence of multinational industries in developing nations that may not yet have the legislative
or technical capacity to prevent pollution of formerly pristine areas. International assistance
in development of training systems and also provision of direct training in the developed world
can be used to overcome these issues.
THEME #5 INTERNATIONAL COOPERATION ANDTRANSBOUNDARY COMPLIANCE
AND ENFORCEMENT ISSUES
Workshop 5A Illegal Transboundary Shipment of (Hazardous) Waste
Illegal Transboundary Shipment of (Hazardous) Waste is caused by many different
ways that violators circumvent provisions of Basel Convention and other laws on shipment
of waste including: mislabeling of hazardous waste; hazardous waste hidden in legal
shipments; unidentified hazardous waste imported and abandoned; fraudulent recycling;
imported hazardous materials that are imported, become or create hazardous waste, and
then are abandoned; hazardous waste imported negligently or because of lack of knowledge;
use of transshipment centers, e.g. Hong Kong and Singapore, to launder waste; and
smuggling of hazardous waste for abandonment. Types of and successes in bilateral and
multilateral international cooperation and information sharing, include improved procedures
and other requirements and improved detection of violators. The group reported a number
of success including:
• Tracking of shipments: Australia reported a sophisticated electronic tracking
system for shipments using Global Positioning System that allows real time
tracking of every registered hazardous waste shipment. The U.S. reported a
cooperative tracking system, HAXTRAKS, that combines information from the
U.S. and Mexico to track waste transferred across their common border. The
ability to identify the export of waste may depend upon the power of domestic
tracking systems. The group recognized a need for a closed loop system that
would require or provide for reporting from the point of ultimate use, treatment
. or disposal of waste to the country of origin.
• Cooperation with customs agencies: Many countries acknowledged the need
for and reported success in working with their customs agencies. Typically,
customs agencies have not been interested in hazardous waste until driven
by concerns of safety for their agency. Good cooperation with customs
agencies is enhanced by frequent meetings, joint operations, and provision
of training and resources.
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______^ __
Workshop 5B Compliance With International Agreements
• How to communicate for effective complice and enforcement at the national
00 peration pres6nted b
Workshop 5C Illegal Shipments of Dangerous Chemicals
Workshop 5D International Enforcement Cooperation
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588 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE
There was a long list of specific environmental problems that could benefit from
increased cooperation as well as some examples of where cooperation is currently working,
although the latter were mostly bilateral. There was general support for the concept of INECE
as an umbrella organization which would attempt to pull the regional networks along and
serve as a central information repository and communications resource on a wide range of
issues. INECE was seen as a repository of information which, given the increasing electronic
capabilities in many countries, could be made broadly available.
At the same time there was a note of reality in the discussions of resources, political
and staff changes and the relatively low rank, in many countries, of the environment ministry.
International Conventions and Treaties were viewed as valuable but there was much opinion
that they were unknown to or ignored by, in many instances, the very people who should have
a role in implementing them. As a general conclusion, the participants felt that international
cooperation is essential and must be accomplished, whatever the obstacles may be, if the
global nature of many of our environmental problems is to be successfully addressed. The
issue of bilateral and subregional cooperation was raised several times as it was seen as
easier to accomplish and less expensive to implement. Specific problems which would
particularly benefit from multi-national cooperation were discussed. The role of countries
whose own cooperative structures were more advanced was noted. The thinking in general
was that they could be excellent models for newer cooperative groupings and could serve
as sources of information and provide other kinds of support.
Workshop 5E Collabor ative Targeting
Many countries share concerns regarding the consistency of the operations of multi-
national companies and problems associated with transboundary pollution. Questions exist
concerning the capacity of countries to enforce, minimum standards to follow, companies
setting their own standards, availability of data and international cooperation. Collaboration
is essential to solve these problems. Solutions include working with multi-nationals to seek
their cooperation in operating consistently around the world; asking those companies to
produce world wide reports on environmental efforts; linking international performance with
incentive awards; developing a ranking guide on multi-national performance; providing
company information over the Internet; sharing each country's regulations over the internet;
developing a list/registry of companies and how much pollution they produce, and
incorporating environmental concerns into international investment agreements. Most
important is developing a "rapid response system" or informal person-to-person network, to
resolve problems. All agreed that this could be a primary role for INECE and for the Regional
networks and meetings of the future.
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CONFERENCE EVALUATION 589
CONFERENCE EVALUATION
INTRODUCTION
materiaoHhcnf^^ appraise the programs and
providing a detailed evaluation of Srt^ JJ^l™ ?n? ? ex?enence- '" addition to
a means for conference sponsors to resoond tn S n ^ "T enals'the exercise Prov|des
conferences and acflvWe. lRJSn?^^^^apanta, needs When P|annin9 ***•
of expertise, and types of orgaSonf P '""^ of ParticiPa«™ by region areas
participant^ of the conference
indicating participant response by region types of Tabl6S 1' 2' and 3
percent of the
Africa
Asia & Pacific
Caribbean
Central & Eastern Europe
Central America
International
^orth America
South America
South Asia
West Asia/Middle East
Western Europe
Unspecified
TOTAL
240 100.0
' •
Table 2 Organizational Type Table 3
200
Area of Expertise
• •"--
International NGO
National Government IUO
State/Province/Region 38
Municipal/Local Govt.
Nongovernmental
Industry
Other
Unspecified
TOTAL
No.
15
105
n 38
. 6
26
0
6
4
200
~
%
7.5
52.5
19.0
3.0
13.0
0.0
3.0
2.0
100.0
— — — — .
Area
Legal
Technical
Policy and Management
Legal/Technical
Legal/Technical/Inspection
Policy and Management/Technical
Policy and Management/Leqal
Other
Unspecified
TOTAL
No.
52
28
68
3
1
17
10
6
15
%
26.0
14.0
34.0
1.5
0.5
8.5
5.0
3.0
7.5
200 100.0
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590
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
2 GENERAL COMMENTS
Overall, the conference was very well received by the respondents with over 70%
of participants rating it either very good or excellent. Fully half of the respondents added
written comments to that, that the conference provided a valuable opportunity for exchanging
experiences, gaining information and networking with new contacts (105).
A number of respondents found various elements of the conference notably valuable
and recommended increasing their time allotments. These recommendations included:
longer plenary sessions (69); more informal time to engage with others in an unstructured
setting to network, and to absorb material (52); and more time overall for program activities
and to allow for aclimation to new time zones for international participants (9).
Several respondents indicated that another international conference would be
valuable if held in more than three years to ascertain any developments made as a result
of the conference with a focus on the development of regional networks (15).
3 CONFERENCE PURPOSE AND GOALS
The participants were asked to evaluate the value of the purpose and goals set for
the conference for the intended participants and whether they were successfully met.
Seventy-four percent of the respondents who answered this question rated the purpose and
goals as very good to excellent (143). Figure 1 represents the participants' responses.
Although a few respondents commented on the difficulty of the conference offering
something for everyone (3), participants generally recognized and commended the worthiness
of the goals.
3 Excellent
I Very Good
s Good
DFair
l Poor
Help make Drawbgetier Ofier something for Articulate and . Encourage Foster exchange
compliances those influencing everyone supportcapacify ongoing of expertise and
enforcement design of building agendas inbmafonal and learning through
happen programs regional acive participation
networking
Figure 1. Overall ratings given by participants who evaluated the
appropriateness of the conference purpose and goals (194)
-------
CONFERENCE EVALUATION 591
CONFERENCE SUCCESS IN ACHIEVING GOALS
success in achieving th
Figure 2 represents B,e responses
PUme
'" ad1ieVi"9 lhe «*•««*»
red this question rated the
9 as veiy 9°od to e>«*llent (132).
more strongly (2)
^
exchanges (6), and stressing sub-regional networking
enlb/cemant design of
happen programs
• °n9°in9 ofexperfseand
infemafonal and learning Ihrougn
regbnal acSve parfcipafon
netaorking
CONFERENCE PARTICIPATION
^^^^
Jrganizations represented as wen a*tL «S * countries represented and the
espondents who answeSd to thfs quesfonTated SJT^' f eventyei9ht Perce"t of the
•ery good to excellent (148) See Haure 3 Both t? pan™pa? 3SPect of ** conference as
Country representations were rated as It nooHf6 ""^ °f attendin9 '"dividuals and the
espondents (157). 8to^£5^TX^ by eighty-three percent of the
lifferent countnes proved ^5 ^exceTent miS^ f he ^^ °f rePr^entat,Ves from
nprovement in the'composiCoS^^ SUggested
etter representation from different coLntr L?=ni ® 9 the need formore NGOs-
rofessions such as local enforcers (23° representatives from specific
-------
592
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Several respondents commented on the problems such as the large number of
conference participants and the language barriers (16).
gj Excellent
• Very Good
^Good
DFair
• Poor
No. of individuals
attending
Countries
represented
Organizations
represented
Mix of experience
Figure 3. Overall ratings given by participants who evaluated conference
participation (191)
6 CONFERENCESTRUCTURE
Participants evaluated the structure of the Conference which included the Principles
of Environmental Compliance and Enforcement presentation, the theme plenary sessions
which were followed by related workshops, free time for exhibits and clinics and regional
meetings. The valuations of the specific elements are indicated in Figure 4. Participant
comments generally included recommendations for more time for the planned activities such
as the plenary sessions, presentations, regional meetings, and clinics. Specifically, these
included: more time allotted for plenary sessions and regional meetings to allow for adequate
discussion and presentations (27); more time for networking and informal time (34) and
reducing the length of the conference (5).
-------
CONFERENCE EVALUATION 593
Opening Plenaiy
Principles of
Environmental
Compliance &
Enforcement
Theme Plenaiy
Panel Sessions
Wednesday
Aternoon-
Exhibits/Clinics
Regional Meetings Closing Plenary and
Keynofe
0( oonferencs
7 PLENARY PANELS
respondents suggested that more presentations on compliantThe'SuSd S-
-------
594
FIFTH INTERNATIONAL CONFERENCE on ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Excellent
I Very Good
a Good
nFair
I Poor
100%
90%
80%
Usefulness of theme
contents
Mix of topics covered by Opportunity for discussion
panel
Figure 5. Theme #1 Plenary - Making it Happen: Applying the Principles
of Environmental Compliance and Enforcement
3 Excellent
I Very Good
jGood
DFair
I Poor
Usefulness of contents Usefulness as review Opportunity for discussion
Figure 6. Theme #1 - Principles of Environmental Compliance and
Enforcementent
-------
CONFERENCE EVALUATION 595
Usefulness of theme
contents
Mix of topics covered by Opportunity for discussion
panel
" Communicati°ns, Public Role, Compliance
Figure 8. Theme #3 Plenary - "Carrots and Sticks"
-------
596
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
100%
3 Excellent
I Very Good
3 Good
[Poor
Usefulness of theme
contents
Mix of topics covered by
panel
Opportunity for discussion
Figure 9. Theme #4 - Capacity Building
g§ Excellent
I Very Good
3 Good
i Poor
Usefulness of theme
contents
Mix of topics covered by
panel
Opportunity for discussion
Figure 10. Theme #5 Plenary - International cooperationTTransboundary
Compliance and Enforcement issues
-------
CONFERENCE EVALUATION 597
xcellent
[Very Good
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
DFair
PooT^j
Usefulness of theme
contents
Mix of topics covered by Opportunity for discussion
panel
FIGURE 11. THEME #6 PLENARY - BUILDING REGIONAL AND GLOBAL NETWORKS
8 WORKSHOPS
Participants were asked to rate the workshops they attended in terms of the quality
of the material, whether the goals were accomplished, and whether the issues were adequately
addressed. The results of these ratings are presented in Figures 12-15. Results for the
"Principles" workshops are presented in Table 4.
Respondents' comments were varied among the workshops. A number of participants
commended the workshops for their valuable discussions and small size (10). Other
respondents suggested some improvements including: adjusting the discussion format (34);
allotting more time for questions and discussion (20); increasing homogeneity of cultures and
levels of experiences among participants to improve depth and focus of the exchange (9) and
providing more support materials for discussions (5). Comments on the quality of facilitation
also varied by workshop with some participants remarking that the good facilitation resulted
in focused sessions (31), while other recommended better facilitation of and preparation for
the workshops (16).
-------
598 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Table 4 Principles of Environmental Compliance and
Excellent Very Good Good
# % # % # %
Coal Burning
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Mining
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Petrochemical
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Deforestation A
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Deforestation B
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Waste Disposal A
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Waste Disposal B
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Waste Disposal C
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Tourism
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Transboundarv A
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
Transboundarv B
Realistic
Quality of Materials
Usefulness of Contents
Usefulness of Package
Workshop Format
1
2
2
1
1
4
3
5
2
3
4
6
5
4
5
5
7
6
6
5
1
3
3
3
2
3
6
4
4
5
1
1
1
0
1
1
4
3
3
3
8
4
6
4
5
19
19
19
18
15
9
10
10
10
9
6%
13%
13%
6%
7%
22%
17%
28%
12%
19%
24%
35%
29%
24%
33%
25%
35%
30%
30%
31% •
9%
27%
27%
27%
18%
13%
26%
17%
18%
24%
9%
9%
9%
0%
11%
. 6%
25%
19%
19%
19%
50%
27%
38%
29%
33%
50%
50%
51%
50%
50%
50%
50%
53%
50%
53%
11
8
7
9
9
4
8
4
7
6
5
5
5
5
4
12
7
6
7
8
5
7
5
3
6
9
6
9
8
5
4
5
5
5
4
7
4
6
5
6
1
3
3
3
4
3
3
4
4
1
1
0
0
0
0
69%
50%
44%
56%
64%
22%
44%
22%
41%
38%
29%
29%
29%
29%
27%
60%
35%
30%
35%
50%
45%
64%
45%
27%
55%
39%
26%
39%
36%
24%
36%
45%
45%
50%
44%
44%
25%
38%
31%
38%
6%
20%
19%
21%
27%
8%
8%
11%
11%
3%
6%
0%
0%
0%
0%
2
4
6
5
2
9
6
7
7
6
7
5
6
7
5
3
5
6
6
2
4
1
3
5
3
5
8
5
7
7
4
5
4
4
2
6
6
6
6
6
2
4
3
3
1
9
9
8
4
8
2
5
3
3
4
13%
25%
38%
31%
14%
50%
33%
39%
41%
38%
41%
29%
35%
41%
33%
15%
25%
30%
30%
13%
36%
9% '
27%
45%
27%
22%
35%
22%
32%
33%
36%
45%
36%
40%
22%
38%
38%
38%
38%
38%
13%
27%
19%
21%
7%
24%
24%
22%
11%
27%
11%
25%
16%
15%
24%
Enforcement Workshops
Fair Poor Total
# % # %
1
1
1
1
2
1
1
2
1
1
1
1
1
1
1
0
1
2
1
1
1
0
0
0
0
5
1
4
1
3
2
0
1
1
1
0
2
1
1
1
3
2
1
2
2
4
6
3
6
4
5
4
5
6
4
6%
6%
6%
6%
14%
6%
6%
11%
6%
6%
6%
6%
6%
6%
7%
0%
5%
10%
5%
6%
9%
0%
0%
0%
0%
22%
4%
17%
5%
14%
18%
0%
9%
10%
11%
0%
13%
6%
6%
6%
19%
13%
6%
14%
13%
11%
16%
8%
17%
13%
28%
20%
26%
30%
24%
1
1
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1
2
1
2
1
0
0
0
0
1
2
0
0
1
0
2
2
3
2
3
3
1
3
4
2
1
1
1
1
0
6%
6%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
4%
9%
4%
9%
5%
0%
0%
0%
0%
11%
13%
0%
0%
6%
0%
13%
13%
19%
14%
20%
8%
3%
8%
11%
7%
6%
5%
5%
5%
0%
16
16
16
16
14
18
18
18
17
16
17
17
17
17
15
20
20
20
20
16
11
11
11
11
11
23
23
23
22
21
11
11
11
10
9
16
16
16
16
16
16
15
16
14
15
38
38
37
36
30
18
20
19
20
17
-------
CONFERENCE EVALUATION 599
Special Workshops
Buuauiy or Materials HWere Goals Accomplished DWere Issues Addressed
90% .
80% .
70% .
60% -
50%
40% -
30% -
20% -
10% -
0% .
' ~ — •"- ' "---••=- — --"--' — — — :---—-— -i-,::...:_:._.
f
y
I
%
•fa
\
I
*
i
'^m
4
fl
•
i
1
m
2A 2AA 2B 2BB 2BBB 2C 2CC 2D
2DD 2E 2
2A/AA Communications and Enforcement
2B/BB/BBB Encouraging Public Role
2C/CC Compliance Monitoring
2D/OD Multi-Media Inspections
2E Source Self-Monitoring
2F Detecting Hidden Operations
Figure 12. Theme #2 Workshops. This figure shows the overall
percentage ratings for "very good" to "excellent" given by the
respondents who evaluated the Day Two Morning Workshops
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
EaQualityoTivraterials • Were Goals Accomplished gWere Issues Addressed
3AA
3B
3BB
3C
3CC
3D
3E
3F
3A/AA Structuring Incentives
3B/BB Environmental Crimes
3C/CC Citizen Enforcement
30 Structuring Financial Consequences
3G
3E Role of Negotiation
3F Administrative Enforcement Mechanisms
3G Compliance Schedules and Action Plans
Figure 13. Theme #3 Workshops. This figure shows the overall
percentage ratings for "very good" to "excellent" given by the
respondents who evaluated the Day Two Afternoon Workshops
-------
600
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
^Quality of Materials aWere Goals Accomplished nWere Issues Addressed
100% T
90% -
80% -
70% -
60% -
50% -
40% -
30% -
20% -
10% -
0% -
I
|
I
I
|
|
I
l\
~
I
...
4A
4AA
48
4C
4CC
4D
4E
4F
4G
4H
4J
4A/AA Managing Centralized/Decentralized Programs 4F Government/Municipal/Military
48 Budgeting & Financing Environmental Compliance 4G Small & Medium Enterprise Compliance
4C/CC Training Programs 4H Mobile Source Compliance Strategies
Compliance Assistance Programs
The Science of Enforcement
41
4J
Non-point Source Compliance
Geographic or Resource-Based Compliance
Figure 14. Theme #4 Workshops. This figure shows the overall
percentage ratings for "very good" to "excellent" given by the
respondents who evaluated the Workshops
^Quality of Materials • Were Goals Accomplished nWere Issues Addressed
100%
90% -
80% -
70% -
60% -
50% -
40% -
30% -
20% -
10% -
0%
5A
5AA
5B
5BB
5C
5D
5DD
5E
SEE
5A/AA Illegal Transboundary Shipment SD/DD International Enforcement Cooperation
5B/BB Compliance with International Agreements SE/EE Collaborative Targeting
5C Illegal Shipments of Dangerous Chemicals
Figure 15. Theme #5 Workshops. This figure shows the overall
percentage ratings for "very good" to "excellent" given by the
respondents who evaluated the Workshops
-------
CONFERENCE EVALUATION 601
9 REGIONAL MEETINGS
One hundred forty-three of the participants responded to the question concerning
the four regional meetings: Europe, Americas, Asia and Africa/Middle East. Fifty-seven
percent of the respondents from the Regional Meeting for Europe (27), sixty-two percent from
the Americas Regional Meeting (25), seventy-five percent from the Asia Regional Meeting
(27) and eighty percent from the Africa/Middle East Regional Meeting (14) rated the meetings
as very good to excellent. The responses are presented in Figures 16-19.
A few respondents thought the productivity of the regional meetings were a result of
good facilitation and discussion (3) while others indicated that the facilitators needed
improvement (3). Again, some respondents commented on the limited time for speakers and
the meetings themselves (8).
Overview of conference
Usefulness of contents
Opportunity for discussion
Mix of topics covered by panel
Usefulness of theme contents
Lead to future prioritlesfprospects
Adequate opportunity for
discussion
• Format of meeting successful?
Evaluate appropriateness of goals
D Excellent
SR3SEJ
85)
H Very Good ^Good uFair gj Poor
""i^""*^*™*^M™^^^™^-—
jgg^,
fri?iiiw«rti
'i>»i3
SsMiiyj
rmtimi
1
B«m
•
1
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
FIGURE 16. ASIA REGIONAL MEETING
-------
602
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
| 03 Excellent • Very Good ^Good QFair a Poor
Overview of conference
Usefulness of contents
Opportunity for discussion
Mix of topics covered by panel
Usefulness of theme contents
Lead to future
priorities/prospects
Adequate opportunity for
discussion
Format of meeting successful?
Evaluate appropriateness of
goals
ffSr
TffmffffmTffTm^f
»»»»&»»»
^mL^MM
ZZZLvw
—
^ ,
wJ
1 _l_ 1
0% 10% 20% 30% 40% 50% • 60% 70% 80%
FIGURE 17. AFRICA & MIDDLE EAST REGIONAL MEETING
D
Overview of conference
Usefulness of contents
Opportunity for discussion
Mix of topics covered by panel
Usefulness of theme contents
Lead to future
priorities/prospects
Adequate opportunity for
Format of meeting successful?
Evaluate appropriateness of
goals
1 Excellent
_!
•^l.,
fei_
1
mm
m
IM
— i
m
rn
T^««
1
m
a—, 1
B Very Good ^ Good n Fair H Poor
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
FIGURE 18. EUROPE REGIONAL MEETING
-------
CONFERENCE EVALUATION 603
jExcellent mVery Good uGood rjFair uPoor
Overview of conference
Usefulness of contents
Opportunity for discussion
Mix of topics covered by panel
Usefulness of theme contents
Lead to future priorities/prospects
Adequate opportunity for
discussion
Format of meeting successful?
Evaluate appropriateness of goals
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
FIGURE 19. AMERICAS MEETING
10
EXHIBITS AND CLINICS
Exhibits provided participants with information about environmental compliance and
enforcement issues in different regions. Regional displays included information on networks,
institution building projects and programs, as well as country highlights. Demonstration
exhibits included computer modeling.and INTERNET/Automated Systems support, NGO
access to information sites and Inspector/Police training materials. Video displays provided
information and demonstrations on communications and training. Sixty percent (110) of the
respondents who rated the exhibits and clinics gave a very good to excellent rating as seen
above in Figure 4 . The Americas and the Western Europe Regional Exhibits received the
highest overall ratings.
Clinics offered participants an opportunity to engage in one-on-one discussions
focusing on specific topics. Although a few respondents indicated that the afternoon would
have been better spent as a free one (3), others indicated that it would be worthwhile if
structured differently to assure greater participation (5).
11
SITE VISITS
For the first time, conference participants had the opportunity to visit selected area
sites on the Saturday following the conference. 86 participants signed up for a pre-arranged
tour at one of the three sites of interest: a USEPA regional laboratory that analyses
compliance samples, Fort Ord, a former military installation that underwent environmental
remediation and is now used as a junior college, and a state-of-the art regional sewage
-------
604
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
treatment plant and state-of-the-art solid waste management landfill at which a related
compliance inspections was enacted. Although not recorded on the evaluation form, remarks
were uniformly enthusiastic about the visits with recommendations that this activity become
part of future conference programs.
12
ORGANIZATION OFTHE CONFERENCE
Seventy-three percent of the respondents who answered this question rated the
conference organization as very good to excellent (137). See Figure 20.
H Excellent
gVery Good
^ Good
QFair
HPoor
City Location
Service Desk Special Events Food and Beverage Contact with EPC Staff availability
FIGURE 20. OVER ALL RATINGS OFTHE QUALITY OF THE CONFERENCEORGANIZATION (187).
Twenty-two of the respondents who answered this question applauded both the
quality of the conference and the efforts of the conference organizers. Ninety percent of the
participants who answered this question gave the city location of the conference a very good
to excellent rating (172). As before, many respondents indicated the lack of free time available
to appreciate the surroundings. Some respondents indicated the inadequacy of the hotel
staff (6), food (3), location (3), activities (2), and reimbursements (2).
13
NEWSLETTER
The Fifth Conference allowed INECE conference organizers to also assess the first
published INECE Newsletter. Of the 111 respondents who evaluated the newsletter, ninety-
five percent of the respondents indicated that the newsletter met their expectations (106).
When asked to participate in the upcoming newsletter, ninety-percent of the respondents
agreed to participate (122), while a few respondents would consider participating if specific
issues were addressed (4).
-------
CONFERENCE EVALUATION 605
14 FOLLOW UPTOTHE CONFERENCE
Ninety percent of the respondents supported future regional conferences (173) and
seventy-three percent of the respondents supported another International conference (141).
Fourteen participants agreed that the international conference should take place no earlier
than two years from now. On the issue of limiting participation, fifteen did not agree with
the suggestion of more limited participation at the next international conference, but two
cautioned that too many participants results in less individual attention and therefore less
opportunity for discussion, information exchange, and capacity building.
Ten respondents specifically encouraged the organizers to continue the
strengthening and expansion of the networks, however a number of respondents
recommended that INECE should further develop the regional and sub-regional networks
before any additional plans were made for another International conference (32). Further
recommendations included: focusing on various groups such as developing countries, NGOs,
and law enforcement while balancing the various relationships (18), following up with
conference participants through establishment of a communication system (9), changing
the program and methodology for future conferences (6), and setting up regional secretariats
(2).
-------
606 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
-------
PARTICIPANT LIST 607
Mr. Prasantha Dias
Abeyequnawardene
Deputy Director-Programmes
South Asian Cooperative
Environment Programme
10, Anderson Road
Colombo 5
Sri Lanka
Tel: 94-1-596442
Fax: 94-1-589369
Email: pd_sacep@eureka.lk
Dr. Adegoke Adegoroye
Director General/CEO
Federal Environmental Protection
Agency (FEPA)
Independence Way South Central
Area PMB 265
GarkiAbuga
Nigeria
Tel: 234-9-234-2807
Fax: 234-1-585-1570
Email:
Ms. Jean Aden
Senior InstitutionalSpecialist
East Asia Environment Sector
Unit
The World Bank
1818 H Street, N.W.
Washington, DC 20433
USA
Tel: 1-202-458-2749
Fax: 1-202-522-1666
Email: jaden@worldbank.org
Mr. G.D. Agarwal
MemberSecretary
Housing and Environment
Madhya Pradesh State Pollution
Control Board
Paryawaran Parisar E-5 Arera
Colony
Bhopal Madhya Pradesh 462016
India
Tel: 91-755-566735
Fax: 91-755-563742
Email: ercbpl@vsnl.com
Participant List
Dr. Alao Yekini Akala
Chief
Assistant Director of Cabinet
Ministerede I'Environnementde
I'Habitatetde I'Urbanisme
Boite Postal 01-3621
Cotonou
Benin
Tel: 229-315-596
Fax: 229-315-081
Email:
Mr. Gustavo Alanis
President
Mexico Centerfor Environmental
Law(CEMDA)
Atlixco No. 138 Col. Condesa
Mexico City D.F. 06140
Mexico
Tel: 52 5-286-3323
Fax: 525-211-2593
Email: cemda@laneta.apc.org
Ms. Martha Aldana
General Coordinator
VIDA
Av. Brasil 2640-202 Pueblo Libre
Lima 21
Peru
Tel: 511-261-5449
Fax: 511-261-5542
Email: vidains@mail.cosapidata.
com.pe
Ms. Maria Da Penha Alencar
Companhia de Tecnologia de
SaneamentoAmbiental (CETESB)
Av. Prof. Frederico Hermann Jr.,
345
Sao Paulo 05489-900
Brazil
Tel:
Fax: 55-11-813-2271
Email: .
Mr. Michael Alushin
Director
International Enforcementand
Compliance Division
OECA-U.S. Environmental
Protection Agency
401MSt.SW, MC2254A
Washington, DC 20460
USA
Tel: 1-202-564-7137
Fax: 1-202-564-0073
Email: alushin.michael@epa.gov
Mr. Julian Amador
Assistant Director
Environmentand Natural
Resources
Environmental Management
Bureau
99-101 Topaz Bldg, KamiasRoad
Quezon City
Philippines
Tel: 632-928-3775
Fax: 632-924-7540
Email:
Ms. Angela Andrews
Lawyer
Environmental Program
Legal Resources Center (LRC)
54ShortmarketStreet
Cape Town 8000
South Africa
Tel: 27-21-238-285
Fax: 27-21-230-935
Email: angela@lrc.org.za or
ae_andrews@hotmail.com
Mr. K.H. Muthukuda Arachchi
Deputy Director
Environmental Protection
Central EnvironmentalAuthority
240/1 Vauxhall Street
Colombo 02
Sri Lanka
Tel: 94-1-337-292
Fax: 94-1-334-690
Email: cea_aut@slt.lk
-------
608
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Ms. Irene Virginia Araya Ortiz
Asesora Legal
SecretariaTechnica Nacional
Ambiental
Costa Rica
Tel: 506-280-9417
Fax: 506-280-6575
Email:
Ms. Claudia Adaloizaa Arias
Cuadros
Advisor
Office of sustainable
Development
Ministeriodel Medio Ambiente
Calle 37 No. 8-40 Antigua
Embajada Americana
Santafe de Bogota DF
Colombia
Tel: 571-288-6877
Fax:- 571-288-7639
Email:
Mr. George D.O. Asiamah
Senior Program Officer
Inspectorate
EnvironmentalProtectionAgency
P.OBoxM-326
Accra
Ghana
Tel: 233-21-664697-8
Fax: 233-21-667374
Email: epainfo@ncs.com.gh/or
epaops@ghana.com
Dr. Michael Axline
President
E-Law Worldwide
1221 University of Oregon 1101
Kincaid Street
Eugene, OR 97403-1221
USA
Tel: 1-541-346-3826
Fax: 1-541-346-1564
Email: westernIaw@IGC.org
Mtro. Antonio Azuela de la
Cueva
Federal Attorney for the
Environment Protection
PROFEPA
PerifericoSur. No. 5000 5o Piso,
Col. InsurgentesCuicuilco
Mexico City 04530
Mexico
Tel: 525-528-5409
Fax: 525-328-5432
Email: nmunguia@buzon.
semamap.gob.mx
Dr. Sc. Robert Baert
Inspector-General
EnvironmentlnspectionSection
Environment, Nature, Land, and
Water Management
Administration
Graafde Ferraris-gebouwEmile
Jacqmainlaan 156, bus 8
Brussels B-1000
Belgium
Tel: 32-2-553-8183
Fax: 32-2-553-8085
Email:
Mr. R.C. Bakx
Head of Enforcement Division
Water and Nature
Province of North Holland
P.O. Box 3007
2001 DA Haarlem
The Netherlands
Tel: 31-23-514-3989
Fax: 31-23-514-30-30
Email: bakx_rc@euronet.nl
Mtra. Martha Banuelos
Cardenas
Advisor to the Federal Attorney
Centra de Documentacionde
Proteccion al Ambiente
PROFEPA
PerifericoSur.5000, AnexoP.B.
Col. InsurgentesCuicuilco
Mexico City C. P. 04530
Mexico
Tel: 525-528-5524
Fax: 5255285524
Email: cedocla@buzon.
semamap.gob.mx
Mr. Indrikis Barkans
Deputy Director
Environmental Protection
Department
Ministry of Environmental
Protectionand Regional
Development
Peldu iela 25
Riga LV1494
Latvia
Tel: 371-7-026-503
Fax: 371-7-820-442
Email: indrikis@novell.
varam.gov.lv
Ms. Ana Barreira
Director
Institute Internacionalde Derecho
y Medio Ambiente
c/o Jose Silva, 15 B 1o. 3a
Madrid 28043
Spain
Tel: 34-91-415-2400
Fax: 34-91-415-2400
Email: iidma@arrakis.es
Mr. Barna Bartha
Lawyer
Focus Eco Center
Str. Marasti, nr. 35-24
Tirgu Mures 4300
Romania
Tel: 40-65-162170
Fax: 40-65-213-883
Email: office@focus.sbnet.ro
Ms. Ermira Basha
Director
Directorateof Environmental
Project Implementation
National EnvironmentalAgency
Blvd."B.Curr1", No. 5
Tirana
Albania
Tel: 355-42-64903
Fax: 355-42-65229
Email: cep@cep.tirana.al
-------
PARTICIPANT LIST 609
Ms. Ruta Baskyte
Advisor of the Minister
Ministry of the Environment
JakstasStr.,4/9
Vilnius 2694
Lithuania
Tel: 370-2-611-642
Fax: 370-2-220-847
Email: tbs@nt.gamta.lt
Ms. Bolormaa Batsukh
Officer
IntemationalCooperation
Ministry of Nature and the
Environment
Government Building No. 3. Baga
Toiruu44
Ulaanbaatat 11
Mongolia
Tel: 976-1-312269
Fax: 976-1-321401
Email: baigyam@magicnet.mn
Mr. P.A.C Beelaerts van
Blokland
Oudwijk 37
3581TH Utrecht
The Netherlands
Tel: 31-30-251-2518
Mr. Narayan Belbase
Coordinator
Environmental Policy and Law
IUCN Nepal
Dhobighat,LalitpurP.O. Box 3923
Kathmandu
Nepal
Tel: 977-1-536784
Fax: 977-1-536-786
Email: iucn@mos.com.np
Mr. Eli BenAri
Senior Attorney
Legal
Israel Union for Environmental
Defense
7 Carlebach
Tel Aviv 67132
Israel
Tel: 972-3-562-4044
Fax: 972-3-562-3736
Email: iued@netvision.net.il
Mr. Antonio H. Benjamin
President
Lawyers for a Green Planet
Institute
Rua Libero Badaro P.O. Box
CEP01008-908
Sao Paulo
Brazil
Tel: 55-11-574-7542
Fax: 55-11-574-7542
Email: planet-ben@uol.com.br
Ms. Nancy Bircher
Director
Wildlife Branch
Ministry of Environment,
Lands and Parks
888 Fort Street, 2nd Floor
British Columbia V8W9M4
Canada
Tel: 1-250-387-9731
Fax: 1-250-356-9145
Email: nbircher@fwhdept.
env.gov.bc.ca
Dr. Kees Boekel
Deputy Regional Inspector
Inspector for the Envir.-East
Pels Rijckenstraatl
Postbus 600830
6800JBArnhem
The Netherlands
Tel: 31-38-469-5300
Fax: 31-38-469-5330
Email: kees.boekel@IMH.
overijssel.dgm.minvrom.nl
Mr. Bent Bolstad
Norwegian PollutionControl
Authority
P.O. Box 8100
Oslo N-0032
Norway
Tel: 47-2-257-3400
Fax: 47-2-267-6706
Dr. John Bonine
Chair of Board
E-Law Worldwide
1221 University of Oregon
1101 Kincaid Street
EugeneOR 97403-1221
USA
Tel: 1-541-346-3827
Fax: 1-541-346-1569
Email: ejohn@igc.org
Mr. Christopher Booth
Regulatory Process Manager
Environmental Protection National
Service
The EnvironmentAgency (England
and Wales)
Block 1, GovernmentBuildings
Burghill Road
WestburyonTrym Bristol BS106BF
United Kingdom
Tel: 44-117-9142668
Fax: 44-117-9142770
Email: chris.booth@environment-
agency.gov.uk
Ms. Susan Bromm
Deputy Director
Office of Site Remediation
Enforcement
U.S. Environmental Protection
Agency
401 M Street, SW 2271A
Washington, DC 20460
USA
Tel: 1-202-564-5110
Fax: 1-202-564-0094
Email: bromm.susan@epa.gov
Ms. Carol Browner
Administrator
U.S. Environmental Protection
Agency
MC-1101
Washington, DC 20460
USA
Tel: 1-202-260-4700
Fax: 1-202-260-0270
Email: browner.carol@epa.gov
Mr. Joost Buntsma
Directorate-Generalfor Public
Works and WaterManagement
Ministry of Transport,
PublicWorks
Postbus 20906
2500 EX The Hague
The Netherlands
Tel: 31-70-351-86-24
Fax: 31-70-351-90-78
Email: j.j. buntsma@hdw.
rws.minvenw.nl
-------
610
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Murat Sungur Bursa
Acting Undersecretary
Ministry of the Environment
EskisehirYolu 8. km.
Ankara 06100
Turkey
Tel: 90 532 447 9230-mbbile
Fax: 903123841353
Email:
Mrs. Wei Cai
Division Chief
Legislative Department
Environmental Protection
Committee of National Congress
Environmental Protection &
Resources Conservation
Committee of NPC24,Xi Houang
Cheng Gen Bei Str.
Beijing 100034
People's Republicof China
Tel: 86-10-630-91631
Fax: 86-10-630-98439
Email: eprcccww@yahoo.com
Mr. Fred Campbell
Deputy Executive Director
Environment and Compliance
Natural Resources Conservation
Authority
531/2 Molynes Road
Kingston 10
Jamaica
Tel: 876-923-4061
Fax: 876-923-5070
Email: nrca@inforchan.com
Lie. Miguel Angel Cancino
Aguilar
General Director for Legal Affairs
Legal Affairs
PROFEPA
Boulevard Pipila No. 1, Col.
LomasdeTecamachalco53950
Naucalpande Juarez Edo. De
Mexico
Mexico City
Mexico
Tel: 5255890166
Fax: 5255894011
Email: mcancino@correo.
profepa.gob.mx
Mr. Santos Jose Carrasco
Rodriguez
DirectorGeneral
ServicioAutonomoAmbientalde
Guayana
Ministerio del Ambiente y de los
Recursos Naturales Renovables
Av. Libertador c/c Los Nisperos
Edif Karimanparu.Cdad Bolivar
Estado Bolivar
Venezuela
Tel: 058-85-313401
Fax: 058-85-313321
Email:
Ms. Susan Casey-Lefkowitz
Senior Attorney
Environmental Program for
Central and Eastern Europe
Environmental Law Institute
1616 P Street, N.W., Suite200
Washington, DC 20036
USA
Tel: 1-202-939-3865
Fax: 1-202-939-3868
Email: casey@eli.org
Mr. Marcelo Castillo Sanchez
Attorney
FundacionTerram
Presidente Juan Antonio Rios No.
58, Piso 3
Santiago
Chile
Tel: 56-2-632-4554
Fax: 56-2-632-5759
Email: castillo@ctc-mundo.net
Mr. Momodou A. Cham
Executive Director
National EnvironmentAgency
5 Fitzgerald Street
Banjul PB48
Gambia
Tel: 220-224178 (direct line)
Fax: 220-229701
Email: nea@delphi.com
Mr. Sam Chamroeun
Deputy Director
Legal Affairs and Planning
Ministry of Environment
48 Samdech Preach Sihanoak
Tonle Bassac
Phnom Pehn
Cambodia
Tel: 855-23-427844
Fax: 855-23-427844
Email:
Mr. Reggie Cheatham
Deputy Director, Regional Support
Division
Office of Site Remediation
Enforcement
U.S. Environmental Protection
Agency
401MSt.SW,MC2272A
Washington DC 20460
USA
Tel: 1-202-564-7104
Fax: 1-202-564-0009
Email: cheatham.reggie©
epa.gov
Mr. Airton Chiurato
Companhia de Tecnologia de
Saneamento Ambiental (CETESB)
Av. Prof. Frederico
Hermann Jr., 345
Sao Paulo 05489-900
Brazil
Tel:
Fax: 55-11-813-2271
Email:
Mr. Robert Chouinard
Directeur Adjoint
Direction Des Enquetes
Ministerede I'environnenetetde
la faune du Quebec
5199, rue Sherbrooke Est Bureau
4780
Montreal Quebec H1T 3X3
Canada
Tel: 514-873-2896,ext327
Fax: 514-873-9988
Email: robert.chouinard@mef.
gouv.qc.ca
-------
PARTICmNTLlST 611
Ms. Helena Cizkova
Adviser to the Deputy Minister
International Relations Department
Ministry of the Environment of the
Czech Republic
Project Management Unit in
Ostrava, New Town Hall
Prokesovonam. 8
Ostrava 70200
Czech Republic
Tel: 420-69-628-2362
Fax: 420-69-611-8798
Email: cizkova@env.cz
Ms. Jerry Clarke
Emergenciesand Enforcement
Division
EnvironmentalProtection Branch
45 Alderney Drive 5th Floor,
Queen Square B2Y2N6
Canada
Tel: 1-902-426-1925
Fax: 1-902-426-9709
Email: jerry. clarke@ec.gc. ca
Adv. Neta Cohen
Assistant Legal Advisor
Legal Division
Ministry of the Environment
5 Kanfei Nesharim Street P O B
34033 ' ' '
Jerusalem 95464
Israel
Tel: 972-2-6553740
Fax: 972-2-6553744
Email: intl_div@netvision.net.il/
cneta@hotmail.com
Ms. Maria Comino
Environmental Lawyer
Healthy Rivers Commission
Level 18, Trans City House 15
CastlereaghSt.
Sydney NSW 2000
Australia
Tel: 61-2-9231-2977
Fax: 61-2-9232-5973
Email: rivercom@ozemail.com.au
Mr. Oswin C. Cristina
Environmental Officer
Selibon N.V.
Kaya Industrie 25
Bonaire
The Netherlands Antilles & Aruba
Tel: 599-7-8159
Fax: 599-77-339
Email: selibon@bonairelive.com
Ms. Maria Cuadros Dulanto
EnvironmentalAdviser
Fishing Ministry
Calle 1 Oeste No. 60 Piso 5
CorpacSanlsidro
Lima 27
Peru
Tel: 51-224-3247
Fax: 51-224-3247
Email: cuadros@hotmail.com
Mr. Christopher Currie
Chief
Enforcement Management
Division, Enforcement Branch
Environment Canada
Place VincentMassey, Room
1706 351 St. Joseph Boulevard
Hull Quebec K1A OH3
Canada
Tel: 1-819-953-3882
Fax: 1-819-953-3459
Email: chris.currie@ec.gc.ca
Mr. Boguslaw Dabrowski
Head
Inspection Division
Voivodeship Inspectorate for
Environmental Protection
ul. Nysy Lyzickiej 42
Opole 45-035
Poland
Tel: 48-77-45-30069
Fax: 48-77-45-30069
Email:
Mr. Arne Dalfelt
EnvironmentalSpecia'13'
AfricanEnvironmentUnitl
The World Bank
1818 H Street, N.W.
Washington, DC 20433
USA
Tel: 1-202-458-8195
Fax: 1-202-473-8185
Email: adalfelt@worldbank.org
Mr. Tserendash Damdin
Deputy Director
EnvironmentalProtectionAgency
Ministry of Nature and the
Environment
GovernmentBuilding No. 3.
Bagatoruu-49
Ulaanbaatat 11
Mongolia
Tel: 976-1 -328-46 8
Fax: 976-1-328-62O
Email: epa@magicnet-mn
Mr. Eric R. Dannenmaier
Director of Environm0ntal Law
Program-NorthSouth Center
EnvironmentalLawPr09ram
142016thStreet, NW-, Suite401
Washington, DC 2003 ^
USA
Tel: 1-202-986-42^'*
Fax: 1-202-986-72^0
Email: edan@igc.org
Mr. Hashim Daud
Director
Departmentof Environ r~nent
Ministry of Science, l&f chnology
and Environment
Wisma Sime Darby -1 ~7"th Floor
Jalan Raja Laut
Kuala Lumpur
Malaysia
Tel: 603-559-4787
Fax: 603-559-4788
Email: hd@jas.sains.n*r|y
-------
612
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Earl Devaney
Director
Office of Criminal Enforcment
Forensics and Training
U.S. Environmental Protection
Agency
401 M Street, SW, 2231A Room
1211
Washington DC 20460
USA
Tel: 1-202-564-2480
Fax: 1-202-501-0599
Email: devaney.earl'@epa.gov
Mr. Jaap van Dijk
GedeputeerdeProvinciaal
Bestuur
Provincial Government of
Groningen
Martinikerkhof12
P.O. Box 610
9700 AP Groningen
The Netherlands
Tel: 31-50316-4127
Fax: 31-50-318-5615
Email:
Mr. Georgi Donkov
Bulgarian Green Federation
DondukovStr., No. 9,4th Floor
Sofia 1000
Bulgaria
Tel: 359-2-980-9599
Fax: 359-2-9515884
Email: greenlaw@bgnet.bg or
albena@thegrid. net
Ms. Marlen Dooley
Assistant Commissioner for
Complianceand Enforcement
New Jersey Department of
Environ mental Protecto n
401 East State Stree
P.O. Box 422
Trenton NJ 08625
USA
Tel: 1-609-984-3285
Fax: 1-609-292-1803
Email: mdooley@dep.state.nj.us
Mr. Damcho Dorji
Deputy RegistrarGeneral
Justice
Royal Court of Justice, High Court
P.O. Box 132
Thimphu
Bhutan
Tel: 975-22-26-13
Fax: 975-22-29-21
Email:
Mr. Fernando Dougnac
Private Public Interest Lawyer
Merced 186- Depts. 31
Santiago
Chile
Tel: 56-2-664-3862
Fax: 56-2-633-3862
Email: fdougnac@hotmail.com
Mr. Arvydas Dragunas
Director of the General Strategy
Department
Ministry of Environmental
Protection
JuozapaviciausQ
Vilnius 2600
Lithuania
Tel: 3702-72-58-68
Fax: 3702-72-80-20
Email: tbs@nt.gamta.lt
Ms. Linda F. Duncan
Head
14103 80th Avenue
Edmonton T5R3J8
Alberta
Tel: 1-403-489-4837
Fax:
Email: lfduncan@compusmart.
ab.ca
Mrs. Jytte Ekdahl
Specialized Officer In-Charge
Economic Branch/E
INTERPOL
200, Quai Charles de Gaulle
Lyon 69006
France
Tel: 33-4-72-44-71-90
Fax: 33-4-72-44-72-57
Email: j.ekdahl@interpol.int
Ms. Ramani EMepola
Acting Deputy Director General
Environmental Protection
Central EnvironmentalAuthority
Mallgawatte, New Town
Colombo 10
Sri Lanka
Tel: 94-1-446749
Fax: 94-1-439076
Email: cea_aut@slt.Ik
Mr. A. Enkhbat
ProjectCoordinator
Biodiversity Project Office
Ministry of Nature and
Environment
Khudaldaanii Gudamj-5
Ulaanbaatar 11
Mongolia
Tel: 976-1-328319
Fax: 976-1-328319
Email: btz@magicnet.mn
Mr. Paul A. E. van Erkelens
Chairman of Waterboard
WaterschapRegge En Dinkel
Kooikersweg 1
7609P2Almelo,
Postbus5006
7600GAAImelo
The Netherlands
Tel: 31-546-823-525
Fax: 31-546-832678
Email:
Dr. AdejojuA. Falomo
Assistant Director
EnforcementTraining Center
FEPA
Games Village P.M.B. 3150
Surulere Lagos
Nigeria
Tel: 234-1-585-0122
Fax: 234-1-585-1570
Email:
Dr. Sandor Fiilb'p
Attorney at Law
Environmental Management and
Law Association
Garayutca 29-31.1-1.
Budapest 1076
Hungary
Tel: 36-1-322-8462
Fax:
Email: emla@emla.zpok.hu
-------
PARTICIPANT LIST 613
Mr. J. William Futrell
President
Environmental Law Institute
1616PStreet, NW, Suite 200
Washington, DC 20036
USA
Tel:' 1-202-939-3800
Fax: 1-202-939-3868
Email: futrell@eli.org
Mr. Andreas Gallas
DirectorGeneral
Office of General Environmental
Law and Environmental Impact
Assessment
Federal Ministry for the
Environment, Nature
Conservation and Nuclear Safety
KennedyalleeS P.O. Box 1206 29
Bonn D-53175
Germany
Tel: 49-228-305-2252
Fax: 49-228-305-2225
Email: zxxxl 075@wp-
gate.bmu.de
Mr. Jo Gerardu
Head
Strategy Planning and
Control Division
Ministry of Housing, Spatial
Planning and the Environment
IPC680,Rijnstraat8
2515XP the Hague,
P.O. Box 30945
2500 GX The Hague
The Netherlands
Tel: 31-70-339-2536
Fax: 31-70-339-1300
Email: Jo.Gerardu@IMH-
HI.DGM.minvrom.nl
Ms. Gail C. Ginsberg
Regional Counsel
Office of Regional Counsel-
Region V
U.S. Environmental Protection
Agency
77 West Jackson Boulevard
Chicago IL 60604-3507
USA
Tel: 1-312-886-6675
Fax: 1-312-886-0747
Email: ginsberg.gail@epa.gov
Mr. Robert Glaser
Inspector, International Affairs/
IMPEL Coordinator
Inspectorate forthe Environment
Ministry of Housing, Spatial
Planning and the Environment
Seissingel4,
P.O. Box 394
4330 AJ Middelburg
The Netherlands
Tel: 31-11-863-3792
Fax: 31-11-862-4126
Email: rob.glaser@wxs.nl
Ms. Betske Goinga
Coordinatorof IMPEL (SC1)
DGXI,BU-5,4/48
European Commission
Rue de la Loi 200
Brussels B-1049
Belgium
Tel: 32-2-296-7191
Fax: 32-2-299-1070
Email: betske.goinga@dg11.
cec.be
Dr. Marco Antonio Gonzalez
Pastora
Director
Environmental Legislation
Program
CCAD
7 Av, 1301, Ed. LI2Cupula, 2 piso,
Zona 9, Guatemala
Guatemala
Tel: 502-333-4486
Fax: 502-334-3877
Email: mgonp@citel.com.gtor
marcogonzalezp©
hotmail.com
Ms. Aura Lila Guadamuz
Legal Advisor
Environmental Department
FUNDENIC
Barrio Cristo del Rosario, de
Dondefue el Cine Blanco 11/2 c.
al Norte
Managua
Nicaragua
Tel: 505-2-2225455
Fax: 505-2-682357
Email: demac@tmx.com.ni
Mr. Fernando Fabian'
Gutierrez Pimentel
Fiscal Superior del Tercer Distrito
Judical
ProcuraduriaGeneral de la
Nacion
MinisterioPublico
P.O. Box 842
David Chiriqui
Panama •
Tel: 507-775-4551
Fax: 507-775-8150
Email: ffgpcond@chiri.com
Ms. Thandi Gxaba
Director
Department of Environmental
Affairs and Tourism
1st Floor, Room 139, Tourism
Centre, Park Road P.O. Box 264
Bloemfontein 9300
South Africa
Tel: 2751-403-3773
Fax: 2751-448-8361
Email:
Ato Gii-ma Hailu
Counselor
Inspection
Ministry of Foreign Affairs
P.O Box 100516
Addis Ababa
Ethiopia
Tel: 251-1-150251
Fax: 251-1-514300
Email:
Ms. Roshadah Hashim
Environment Control Officer
Department of Envronment
12 & 13 Floor, Wisma Sime Darby
Jalan Raja Laut
Kuala Lumpur 50662
Malaysia
Tel: 603-294-7844DL
Fax: 603-293-1044
Email: sna@jas.sains.my
-------
614
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Ms. Susan Hay
PrincipalAdministrator
Environment, Nuclear Safety and
Civil Protection
European Commission DG XI
Rue de la Loi 200
Brussels B-1049
Belgium
Tel: 32-2-295-9621
Fax: 32-2-299-1070
Email: susan.hay@dgll.cec.be
Mr. Steven A. Herman
Assistant Administrator
Office of Enforcement and
Compliance Assurance
U.S. Environmental Protection
Agency
401 M Street, SW MC 2211A
Washington, DC 20460
USA
Tel: 1-202-564-2440
Fax: 1-202-501-3842
Email: herman.steven@epa.gov
Mr. Jan van den Heuvel
Director
General Policy Affairs
Ministry of Housing, Spatial
Planning and the Environment
IPC660,Rijnstraat8
2515 XP The Hague
P.O. Box 30945
2500 GX The Hague
The Netherlands
Tel: 31-70-3394-025
Fax: 31-70-3391-302
Email: VanDeHeuvel@DB.DGM.
minvrom.nl
Mr. Markku Hietamaki
Senior Technical Adviser
Departmentfor Environmental
Protection
Ministry of the Environment
P.O. Box 399
Helsinki SF-00121
Finland
Tel: 358-9-1991-9703
Fax: 358-9-1991-9716
Email: markku.hietamaki@vyh.fi
Ms. Sabine Hoefnagel
Associate Expert Policy and Law
Regional Office for Europe
UNEP
15 Chemin des Anemones 1219
Chetalaine
Geneva
Switzerland
Tel: 41-22-979-9144
Fax: 41-22-797-3420
Email: sabine.hoefnagel
@unep.ch
Mrs. Kasemsri Homchean
Director
EnvironmentalControland Safety
Division
Industrial Estate Authority of
Thailand
618 Nikhom Makkasan Road,
Rajthevi
Bangkok 10400
Thailand
Tel: 662-2530561, ext. 6333
Fax: 662-2529273
Email: kasemsri@ieat.go.th
Mr. Antero Honkasalo
Environmental Counsellor
Departmentfor Environmental
Protection
Ministry of the Environment
P.O. Box 399
Helsinki SF-00121
Finland
Tel: 358-9-199-19345
Fax: 358-9-199-19716
Email: antero.honkasalo@vyh.fi
Mr. Craig Hooks
Director
Federal Facilities Enforcement
Office
U.S. Environmental Protection
Agency
401 M Street, SW, MC 2261A
Washingto.nDC 20460
USA
Tel: 1-202-564-2510
Fax: 1-202-501-0069
Email: hooks.craig@epa.gov
Mr. Henk G.H. ten Hoopen
Director
Ministry of Transport, Public
Works and Water Management
Dutch Shipping Inspectorate
's Gravenweg 665 P.O. Box 8634
3009 AP Rotterdam
The Netherlands
Tel: 31-10-266-85-01
Fax: 31-10-202-24-00
Email: h.g.h.thoopen
@sir.dgsm.minvenw.nl
Mr. Nursohib Hudan
Head
Region of East Java
East Java Regional Environmental
Impact Management Agency
JI.Johar17
Surabaya 60174
Indonesia
Tel: 62-21-357-3305
Fax: 62-31-357-3306
Email: jaganusa@bapedal.go.id
Mrs. Katerina lacovidou
Anastassiadou
Chemist/Inspector
Division of Industries
Ministry of the Environment,
Physical Planning and Public
Works
147 Patission Street
Athens GR-11251
Greece
Tel: 30-1-865-2493
Fax: 30-1-865-2493
Email:
Mr. Arif Islamzade
Project Manager
Environmental Rehabilitationof
Sumgait, UNDP Project
Nizami Street 16
Sumgait 373200
Azerbaijan
Tel: 994-164-2-2614
Fax: 994-164-2-2618
Email: hiroko.takasawa
@un.azeri.com
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PARTICIPANT LIST 615
Mr. Jalaluddin Ismail
Director
Department of EnvironmentState
ofSelangor
Ministry of Science
17th FloorWISMAMPSA
Persiaran Perbandaran
Shah Alam Selangor40675
Malaysia
Tel: 603-559-4787
Fax: 603-559-4788
Email: pasel@p.o.jaring.my
Mr. Jean Pierre Janssens
EersteAdviseur
Enforcement Unit
Brussels Instituut voor
Milieubeheer
GulledellelOO
Brussels B-1200
Belgium
Tel: 322-775-7501
Fax: 322-775-7505
Email:
Dr. Jerzy Jendroska
Director
Environmental Law Information
and Advocacy Service
Polish EnvironmentalLaw
Association
ul.Kotlarska 41,4th Floor
Wroctaw 50-151
Poland
Tel: 4822-91723-84
Fax: 4871-44-47-47
Email:
jerzy.jendroska@unece.org
Mr. Kyoo-Won Jo
Assistant Director
International Affairs
Ministry of Environment
Government Complex Kwacheon
Kyunggi-do 427-760
Kwacheon City
Republic of Korea
Tel: 82-2-504-9244
Fax: 82-2-504-9206
Email: moetcd@chollian.net
Mr. James Johnson
Director
Environmental Defender's Office
Level 9,89 York Street
Sydney NSW 2000
Australia
Tel: 61-2-926-26-989
Fax: 61-2-926-26-998
Email: edonsw@edo.org.au
Ms. Christie Jorge
Consultant
Unit for Sustainable Development
and Environment
Organization of American States
1889 F Street, NW, Room 340-O
Washington, DC 20006
USA
Tel: 1-202-458-6914
Fax: 1-202-458-3560
Email: cjorge@oas.org
Mr. Peter Jorgensen
Head of section
Danish EnvironmentalProtection
Agency
Ministry of the Environment
29, Strandgade
Copenhagen K DK-1401
Denmark
Tel: 45-32-660-100
Fax: 45-32-660-479
Email: pj@mst.dn
Dr. Ananda Raj Joshi
Director-General
South Asian Cooperative
Environment Programme
28212 HavelockRoad
Colombo 5
Sri Lanka
Tel: 94-1-589376
Fax: 94-1-589369
Email: aj_sacep@eureka.lk
Mrs. Mary Karanja
Assistant Director of Environment
National EnvironmentSecretariat
Ministry of Environmental
Conservation
P.O. Box 67839
Nairobi
Kenya
Tel: 254-2-243-088
Fax: 254-2-224-134
Email:
Ms. Lois Kesu Nakmai
Assistant Secretary
Environmentand Conservation
Ministry of Environment
P.O. Box6601, Boroko NCD
Port Moresby Nat'l Cap District
Papua New Guinea
Tel: 675-325-0194
Fax: 675-325-0133
Email:
Mr.A.R. Khan
DirectorGeneral
Department of Environment
ParibeshBhaban, Plot No. E/16,
Agargaon Sher-e-Bangla Nagar
Dhaka 1207
Bangladesh
Tel: 812-461-834-840
Fax: 880-2-9118682
Email: doe@fastnet.bangla.net
Mr. Ji-Tae Kim
Director
Domestic Wastewater Control
Division
Ministry of Environment
Government Complex Gwacheon
Gyunggi-do
Seoul
Republic of Korea
Tel: 82-2-500-4296
Fax: 82-2-504-5445
Email: kim929@moenv.go.kr
Mr. Nguyen Khac Kinh
Deputy General Director
Naitonal EnvironmentAgency
67 Nguyen Du
HaNoi
Vietnam
Tel: 84-4-822-9728
Fax: 84-4-822-3189
Email:
Mr.Yun-Hwa Ko
Director
Air Quality Policy Division
Ministry of Environment, Republic
of Korea
1Jungang-Dong
Kwacheon City
Kyoungki-do 427-760
Republic of Korea
Tel: 82-2-504-9247
Fax: 82-2-504-9208
Email:
-------
616
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Margana
Koesoemadinata
Director of Air Pollution Control
Environmental Impact
ManagementAgency(BAPEDAL)
ArthalokaBldg 11th Floor, JL
JenderalSudirmanNo. 2
Jakarta 10220
Indonesia
Tel: 62-21-251-1483
Fax: 62-21-251-1547
Email: bangtek@bapedal.go.id
Adv. Roni Komar
Deputy DirectorGeneral
Education and Enforcement
Ministry of the Environment
Canfey Nesharim, No. 5
Jerusalem P.O.B. 34033
Israel
Tel: 972-2-6553820
Fax: 972-2-6553823
Email:
Mr. Peter K. Krahn
Senior EnforcementEngineer
InspectionsDivision
EnvironmentCanada, Pacificand
Yukon Region
224 West Esplanade Avenue
North Vancouver
British Columbia V7M 3H7
Canada
Tel: 1-604-666-3056
Fax: 1-604-666-9059
Email: peter.krahn@ec.gc.ca
Mr. Dieter Krane
Under-Secretary of State North-
Rhine Westfalia
Air Pollution Department
The EnvironmentMinistryof the
State North-Rhine Westfalia
Scnwann Str. 3
DCisseldorf D-40476
Germany
Tel: 49-211-4566550
Fax: 49-211-4566949
Email: poststelle@murl.nrw.de
Ms. Svitlana Kravchenko
Professor, President
Ecopravo-Lviv
2 Krushelnitskoi Street
Lviv 290 000
Ukraine
Tel: 380-322-72-27-46
Fax: 380-322-97-14-46
Email: epac@link.lviv.ua
Mr. Ron Kreizenbeck
Director
Office of Enforcement and
Compliance
U.S. Environmental Protection
Agency
1200 Sixth Avenue
Seattle, WA 98101
USA
Tel: 1-206-553-1265
Fax: 1-206-553-7176
Email: kreizenbeck.ron@epa.gov
Prof. Eva Kruzikova
Director
Institute for EnvironmentalPolicy
HradebniS
Praha 11000
Czech Republic
Tel: 420-2-231-5734
Fax: 420-2-231-5734
Email: iep@ecn.cz
Mr. Lai Kurukulasuriya
Chief, Regional Environmental
Law
Regional Office for Asia and the
Pacific
UNEP
UN Building Rajdamnern Avenue
Bangkok 10200
Thailand
Tel: 66-2-288-1877
Fax: 66-2-280-3829
Email: kurukulasuriya@un.org
Mr. Francesco La Camera
Deputy DirectorGeneral
Environmental Impact
Assessment Department
Ministry of the Environment
Via Delia Ferratella Laterano33
Rome 00184
Italy
Tel: 39-6-70362279
Fax: 39-6-70362274
Email: f.lacamera@cabnet-
cnvce-cnr.it
Mr. Harley Laing
Office Director
Office of Environmental
Stewardship, Region 1
U.S. Environmental Protection
Agency
John F. Kennedy Federal Building
One Congress Street
Boston, MA 02203-0001
USA
Tel: 1-617-573-5702
Fax: 1-617-573-9662
Email: laing.harley@epa.gov
Mr. Cor Lamers
Mayor
CityofBleiswijk
Dorpstraat32665 BG Bleiswijk,
P.O. Box 1
2665 ZG Bleiswijk
The Netherlands
Tel: 31-10-524-41-11
Fax: 31-10-524-41-44
Email:
Ms. Inga Birgitta Larsson
Head of the Chemical Industry
Section
Implementation and Enforcement
Swedish Environmental
Protection Agency
Naturvardsrerket
Stockholm SE-106 48
Sweden
Tel: 46-8-698-11-42
Fax: 46-8-698-12-22
Email: ingabirgitta.larsson
@environ.se
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PARTICIPANT LIST 617
Mr. Andy Lauterback
SeniorCriminal Enforcement
Counsel
Office of Council
1 Congress Street JFK Federal
Building
Boston, MA 02203
USA
Tel: 1-617-565-3436
Fax: 1-617-565-4939
Email: lauterback.andrew
©epa.gov
Mr. Ken Ledger-wood
Chief Industrial Pollution and
Radiochemicallnspector
Dept of Environment for Northern
Ireland
Environmentand Heritage Service
(Northern Ireland)
Calvert House 23
Castle Place, Belfast
Northern Ireland BT11FY
United Kingdom
Tel: 44-1232-254-716
Fax: 44-1232-254-700
Email:
Mr. Patrick Lei
Principal Environmental Protection
Officer
Waste and Water Policy
Environmental Protection
Department
28 F Southern Centre 130
HennessyRoad
Wanchai
Hong Kong
Tel: 852-2835-1220
Fax: 852-2318-1877
Email: patlei@epd.gov.hk
Dr. Paul Leinster
Director
Environmental Protection
Directorate
The EnvironmentAgency
Rio House Waterside Drive Aztec
West
Almondsbury Bristol BS32 4UD
United Kingdom
Tel: 44-1454-624065
Fax: 44-1454-624319
Email: paul.leinster©
environment-
agency.govuk
Mr. Peter Levedag
Head, InvestigationSection
Emergenciesand Enforcement
Division
Environment Canada
4905 Dufferin Street
Downsview Ontario M3H 5T4
Canada
Tel: 416-739-5901
Fax: 416-739-4903
Email: peter.levedag@ec.gc.ca
Mr. Jonathan Libber
Attorney
U.S. Environmental Protection
Agency
401 M Street, SW2248-A
Washington, DC 20460
USA
Tel: 1-202-564-6102
Fax: 1-202-564-0010
Email: libber.jonathan@epa.gov
Ms. Maria Teresa Lopez
Fernandez
Chief forthe Environmental Unity
at Comptroller's Office
Contraloria General de la
Republics
De lar Farmacia 5ta. Avenida de
Altamira, 3c. Al (ago, 1/2c.
Arriba.Casa No. 23, Zona 1
Managua
Nicaragua
Tel: 505-265-2077
Fax: 505-265-2078
Email:
Mr. John Lubuva
P.O. Box 5974
Dares Salaam
Tanzania
Tel: 255-51-116116
Fax: 255-51-115455
Email: jmlubuva@hotmail.com
Mr. Mikael Lundholm
Legal Advisor
Implementation and Enforcement
Department
Swedish Environmental
Protection Agency
Blekholmsterrassen36S
Stockholm S-10648
Sweden
Tel: 46-8-698-1172
Fax: 46-8-698-1480
Email: mikael.lundholm
©environ.se
Mr. Ken Macken
Acting Manager
Licensing and Control
Environmental Protection Agency
P.O. Box 3000 Johnstown Castle
Estate
Wexford
Ireland
Tel: 353-53-60600
Fax: 353-53-60699
Email: k.macken@epa.ie
Mr. Ernest M. Makawa
Principal Environment Legal
Officer
Environmental Affairs
Ministry of Forestry, Fisheries,
and Environment
P.O. Box 394
Lilongwe 3
Malawi
Tel: 265-781-111
Fax: 265-783-379
Email:
Mr. Guliyev Mamedsadykh
Head
Water Resources and Water
Users Charges
Committee of Melioration and
Water Industry
GovernmentBuilding(Hokumet
Evi), 5th Floor
Baku
Azerbaijan
Tel: 994-12-93-8196
Fax: 994-12-93-1176
Email:
-------
618
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. David L. Markell
Head
Submissionson Enforcement
Matters Unit (SEM)
Commission for Environmental
Cooperation
393, rue St-Jacques Quest,
Bureau 200
MontealQuebecH2Y1N9
Canada
Tel: 514-350-4355
Fax: 514-350-4314
Email: dmark@ccemtl.org
Ms. Nancy Marvel
Regional Counsel
Office of Regional Counsel-
Region 9
U.S. Environmental Protection
Agency
75 Hawthorne St.
San FranciscoCA94105
USA
Tel: 1-415-744-1364
Fax: 1-415-744-1041
Email: marvel.nancy@epa.gov
Mr. Tom Maslany
Director
Water Protection Division -
Regions
U.S. Environmental Protection
Agency
1650 Arch Street .
Philadelphia, PA 19103
USA
Tel: 1-215-814-2050
Fax: 1-215-814-2301
Email: maslany.thomas@epa.gov
Mr. Choma Johnson Matale
Principal Air Quality Inspector
Department of Mines
Ministry of Minerals Energy and
Water Affairs
Private Bag 0049 2nd Floor
Travaglini House Old Lobatse
Road
Gaborone
Botswana
Tel: 267-365-7000
Fax: 267-352-141
Email:
Ms. Maria Mbengashe
Deputy PermanentSecretary
Economic Affairs, Environment
and Tourism
Province of Eastern Cape
Private Bag X0054 Bisho
Business Village, Number 11
Bisho Eastern Cape 5605
South Africa
Tel: 27-40-6364267
Fax: 27-40-6350511
Email: thobile@iafrica.com
Mr. Pierre Mbouegnong
Adjoint au Chef
Division des Affaires Juridiques
Ministerede L'Envrionnementet
des Forets
Yaounde
Cameroun
Tel: 237-23-9229
Fax: 237-23-9233
Email:
keedi@minef.sdncmr.undp.org
Ms. Melonie McKenzie
Assistant Director
Ministry of Consumer Welfare
and Aviation
P.O. Box S519048
Nassau N.P.
Bahamas
Tel: 1-809-242-322-4546
Fax: 1-809-242-323-2910
Email: mmckenzie@mail.dehs.bs
Dr. Richard Meganck
Director
Unit for Sustainable Development
and Environment
Organization of American States
17th Street and
Constitution Ave., NW
Washington, DC 20006
USA
Tel: 1-202-458-6248
Fax: 1-202-458-3560
Email: rmeganck@oas.org
Mr. Mahesh Chandlr Mehta
Lawyer-activist
Indian Council for Environmental
Legal Action '
5, Anand Lok Khel Gaon Marg
NewDehli 110-049
India
Tel: 9111625-5214
Fax: 9111625-1549
Email:
Mr. Bajram Mejdiaj
Environmental Lawyer
Legislations Public Relations
National EnvironmentalAgency
Blvd. "B.CurrT.No. 5
Tirana
Albania
Tel: 355-42-64903
Fax: 355-42-65229
Email: cep@cep.tirana.al
Dr. Ladislav Miko
Deputy Director
Nature and Landscape Protection
Czech Environmentlnspection
Na brehu 267
Prague 19000
Czech Republic
Tel: 420-2-683-4662
Fax: 420-2-683-4757
Email: miko@cizp.cz
Mr. Alexander Petrovich
Mironenkov
Department Head
Rural Infrastructure Development
Ministry of Macroeconomics and
Statistics
45-A, Uzbekistanskaya Street
Tashkent 700003
Uzbekistan
Tel: 99871-132-65-27
Fax: 99871-132-63-15
Email: alexmir@nsdc.silk.org
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PARTICIPANT LIST 619
Ms. Vera Mischenko
President
Ecojuris Institute of Environmental
Law
P.O. Box 172
Moscow 103009
Russia
Tel: 7-095-921-5174
Fax: 7-095-921-5174
Email: ecojuris@glasnet.ru/
www.glasnet.
ru/~ecojuris
Mr. JeanPierre Moise
Engineer
WasteManagement& Pollution
Unit
Ministry of Environment
181 HautdeTurgeau
Port-au-Prince
Haiti
Tel: 509-45-0635
Fax: 509-45-7360
Email:
Ms. Claudia Mora
Attorney
Foundation for the Defense of
Public Interest
FUNDEPUBLICO
Calle62,No.3-18
Bogota
Colombia
Tel: 571-210-4586
Fax: 571-210-4685
Email: fpublico@latino.net.co
Ms. Ignacia Moreno
Counsel to the Assistant Attorney
General
Environmentand Natural
Resources Division
United States Department of
Justice
950 Pennsylvania Ave. NW
Room 2610
Washington, DC 20530
USA
Tel: 1-202-514-5243
Fax: 1-202-514-0557
Email: ignacia.moreno
©usdoj.gov
Mr. Eduardo Moreno Lafuente
Director
Ministeriode Desarrollo
Sostenibley Planificacion(MDSP)
CalleGoitiaNo. 162
P.O. Box 8561
LaPaz
Bolivia
Tel: 591-2-371-840
Fax: 591-2-374-642
Email:
Mr. David Mowday
IhternationalActivities
Coordinator
U.S. Environmental Protection
Agency, Region 9
75 Hawthorne Street, CGR-3
San Francisco, CA 94105
USA
Tel: 1-415-744-1644
Fax: 1-415-744-1072
Email: mowday.david@epa.gov
Mr. Mfaro Moyo
Chief Technical Advisor
DistrictEnvironmentalAction
Planning Program
Ministry of Mines, Environment
and Tourism
P.O. Box A1524, Avondale
Harare
Zimbabwe
Tel: 2634737-951
Fax: 263-4-737-953
Email: mfarom@deap.com
Ms. Marcia Muikey
Office Director
Office of Pesticide Programs
U.S. Environmental Protection
Agency
401 M Street, SWMC7501C
Washington, DC 20460
USA
Tel: 1-703-305-7090
Fax: 1-703-308-4776
Email: mulkey.marcia@epa.gov
Mtra. Norma S. Munguia
Aldaraca
International Affairs Coordinator
International Affairs
PROFEPA
PerifericoSur. No. 5000,5 Piso,
Coi. InsurgentesCuicuilcoMexico
D.F.
MexicoCity C.P. 04530
Mexico
Tel: 525-528-5515
Fax: 525-666-9334
Email: nmunguia
@correo.profepa.gob.mx
Ms. Connie Musgrove
Office of Regulatory Enforcement
U.S. Environmental Protection
Agency
401 M Street, SW.
Washington DC 20460
USA
Tel: 1-202-564-2220
Fax: 1-202-564-0011
Email: musgrove.connie
@epa.gov
Ms. Michele de Nevers
Sector Leader
Europe and Central Asia
The World Bank
1818 H Street, N.W. -H3091
Washington, DC 20433
USA
Tel: 1-202-473-8607
Fax: 1-202-477-3291
Email: mdenevers
@worldbank.org
Ms. Monemany
Nhoybouakong
DirectorGeneral
Departmentof Environmental
Policy and Protection
Science, Technology and
EnvironmentOrganization
(STENO)
P.O. Box 2279
Vientiane PDR
Laos
Tel: 856-21-222751
Fax: 856-21-217705
Email: mone@steno.gov.la
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620
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. William Nitze
Assistant Administrator
Office of International Activities
U.S. Environmental Protection
Agency
401 M Street, SW/261 OR
Washington, DC 20460
USA
Tel: 1-202-564-6600
Fax: 1-202-565-2407
Email: nitze.william@epa.gov
Mr. Gil Nolet
Legal Specialist
Environment Division
Inter-AmericanDevelopmentBank
(IDE)
1300 New York Avenue, NW
Washington, DC 20577
USA
Tel: 1-202-623-3640
Fax: 1-202-623-1786
Email: gilbertn@iadb.org
Ms. Linda Nowlan
West Coast Environmental Law
Association
1001-207 West Hastings Street
Vancouver
BritishColumbiaV6B 1H7
Canada
Tel: 604-684-7378
Fax: 604-684-1312
Email: lnowlan@wcel.org
Mr. Heiki Nurmsalu
DirectorGenerai
Estonian Environmental
Inspectorate
Marja4d
Tallinn EE0006
Estonia
Tel: 372-656-6720
Fax: 372-656-7599
Email: heiki@klab.envir.ee
Mr. Michael Ochieng
Odhiambo
Executive Director
Resources Conflict Institute
(RECONCILE)
Printing House Road
P.O. Box 7150 ***Ochieng,
Odhiambo & Co Advocates
P.O. Box 780
Nakuru
Kenya
Tel: 254-37-214200
Fax: 254-37-212865
Email: ochieng@arcc.or.ke
Dr. Ikemefuna U. Onyekwelu
Deputy Director
Compliance, Monitoring and
Enforcement
Federal Environmental Protection
Agency
Games Village P.M.B. 3150
Surulere Lagos
Nigeria
Tel: 234-1-585-0123
Fax: 234-1-585-1570
Email:
Mr. Antonio A. Oposa, Jr.
President
A Oposa and Associates
Madrigal Business Park 1780
Alabang
MuntinlupaCity
Philippines
Tel: 632-809-6122
Fax: 632-809-6122
Email: oposa@pworld.net.ph /or
aoposalaw
@oposa.com
Ms. Trinidad Ordonez
Anthropologist
Minister Advisor
Ministerio Medio Ambiente
La Cumbre # 341 y Carlos
Montufar
Quito
Ecuador
Tel: 593-2-540-920
Fax: 593-2-565-809
Email: mma@ecuanex.net.ec
Mr. Lee Paddock
Director of Environmental Policy
Minnesota Attorney General's
Office
445 Minnesota St. NCL Tower,
Suite 900
St. Pau.IMN 55155-2127
USA
Tel: 1-612-296-6597
Fax: 1-612-297-4193
Email: lee.paddock@state.mn.us
Mr. Luis Padron
DirectorGenerai Sectorialde
Vigilancia y Control
Ministerio del Ambiente y de los
Recursos Naturales Renovables
Torre Sur Centra Simon Bolivar,
Piso19
Caracas
Venezuela
Tel: 582-408-1461
Fax: 582-481-5036
Email:
Mr. Dean Paige
EnvironmentalComplianceOfficer
City of Santa Rosa, Sonoma
County
4300 Liano Road
Santa Rosa, CA 95407
USA
Tel: 1-707-543-3375
Fax: 1-707-543-3399
Email: dpaige@ci.santa-
rosa.ca.us
Mr. Adam Parker
Senior Project Manager
Waste Management Division
Departmentof Environmental
Protection
141 St. Georges Terrace 9th
Floor-Westralia Square
Perth 6000
Western Australia
Tel: 61-8-9222-7000
Fax: 61-8-9322-1598
Email: adam_parker
©environ.wa.gov.au
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PARTICIPANT LIST 621
Mr. Nigel Peaple
ED and International Affairs
Adviser
National and International
Relations
The EnvironmentAgency
(England and Wales)
Head Office, Rio House
Waterside Drive, Aztec West
Almondsbury Bristol BS32 4UD
United Kingdom
Tel: 441454-624-028
Fax: 441454-624-319
Email:
nigel.peaple@environment-
agency.govuk
Mr. Michael Penders
Special Counsel
Office of Criminal Enforcement,
Forensics, and Training
U.S. Environmental Protection
Agency
401 M Street, SW Room 1211
Washington, DC 20460
USA
Tel: 1-202-564-2480
Fax: 1-202-501-0599
Email:
penders.michael@epa.gov
Ms. Waltraud Petek
Deputy DirectorGeneral
Pollution Preventionand Control
of Installations, Dep. 1/1
Federal Ministry for Environment,
Youth, and Family Affairs
StubenbasteiS
Vienna A-1010
Austria
Tel: 43-1-51522-2123
Fax: 43-1-51522-7122
Email: waltraud.petek
@bmu.gv.at
Dr. Jit Peters
Director
International Environmental
Affairs
Ministry of Housing, Spatial
Planning and the Environment
IPC670, RijnstraatS
2515XP The Hague
P.O. Box 30945
2500 GX The Hague
The Netherlands
Tel: 31-70-339-4174
Fax: 31-70-339-1306
Email: peters@dimz.dgm.
minvrom.nl
Mr. Antanas Petrauskas
Ministry of Environmental
Protection
Juozapaviciaus9
Vilnius 2600
Lithuania
Tel: 370-27-204381
Fax: 370-27-320854
Email: aplinkosauga.kaunas@is.lt
Mr. Manuel Pulgar-Vidal
Executive Director
Sociedad Peruana de Derecho
Ambiental(SPDA)
Prolongacion Arenales No 437
(Plaza ArrospideS.P.D.A. 9) San
Isidro
Lima 27
Peru
Tel: 51-1-422-2720
Fax: 51-1-442-4365
Email: bbv-mpulgar
©blockbuster.com.pe
Mrs. Shi Qiuchi
Deputy Division Chief
Water Administration and Water
Resources
Water Resources Ministry
Bai Guang Lu, Xuan Wu District
Beijing 100053
People's Republicof China
Tel: 86-10-6320-2930
Fax: 86-10-6320-2929
Email: qchshi@mail.ied.ac.cn
Mr. Ivan Rajniak
Chieflnspector
Departmentof Air Pollution
Control
Slovak Inspectorate of
Environment
Karloveska2
Bratislava 84222
Slovak Republic
Tel: 421-7-65427-969
Fax: 421-7-65420-055
Email:
Dr. Aziz Abdul Rasol
Director
Departmentof Environment,
Sarawak
9th Floor, Bangunan Sultan
Iskandar Jalan SimpangTiga
Kuching Sarawak 93592
Malaysia
Tel: 60-8-241-8535
Fax: 60-8-242-2863
Email: pasar@po.jaring.my
Dr. Rein Ratas
Secretary General
Ministry of the Environment
24Toompuiestee
Tallinn EE0100
Estonia
Tel: 372-626-2804
Fax: 372-626-2801
Email: min@ekm.envir.ee
Ms. Rosa Vivien Ratnawati
Environmental Lawyer
Environmental Impact
ManagementAgency (BAPEDAL)
Arthaloka Bldg 11 th Floor, J L
JenderalSudirmanNo. 2
Jakarta 10220
Indonesia
Tel: 62-21-2512563
Fax: 62-21-2511483
Email: jaganusa@bapedal.go.id
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622
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Ms. Kia Regner
President
The International Federation of
Environmental Health
Tallholmsvagen 5
Vaxholm S-18594
Sweden
Tel: 46-8-541-37736
Fax: 46-8-541-37736
Email: kia@telia.com
Mr. George Rejhon
Friends of the Earth
47 Clarence Street Suite 306
Ottawa Ontario K1N 9 K1
Canada
Tel: 613-240-0085
Fax: 613-241-7998
Email:
Mr. G. Rengasamy
MemberSecretary
Tamil Nadu State Pollution Control
Board
100, Anna Salai Guindy
Chennai/TamilNadu 600032
India
Tel: 91-44-235-3145
Fax: 91-44-235-3068
Email: tnpcb@md3.vsnl.net.in
Mr. Joel Reynolds
Senior Attorney and Director of
the Urban Program
. Natural Resources Defense
Council
6310 San Vicente Boulevard -
Suite 250
Los Angeles, CA 90048
USA
Tel: 1-213-934-6900
Fax: 1-213-934-1210
Email: jreynolds@NRDC.org
Ms. Valentina Mikhailovna
Rijova
Head
Air Protection Department
State Committeefor Nature
Protection
5a, A. Kadiry Street
Tashkent 700128
Uzbekistan
Tel: 998-712-415733 ,
Fax: 998-712-41-39-90
Email: prognoz@ecoinf.org.Uz.
Mr. Deogratias Ringia
Legal Counsel
Lawyers' Environmental Action
Team
Kings Palace Hotel Bldg, 1st Floor,
SikukuuStr. P.O. Box 12605
Dares Salaam, Kariakoo Area
Tanzania
Tel: 255-51-811-328994
Fax: 255-51-180842
Email: leat@twiga.com
Ms. Marianela Rocha
Lawyer/NationalEnvironmental
Prosecutor
Ministry of the Environment
Del Portordel Hospital MilitaM C
Lago, ICAbajo, 1CSur., Pirmer
Modolo,2piso
Managua
Nicaragua
Tel: 505-266-8630
Fax: 505-266-8556
Email:
Mr. J. Paul E. des Rosiers
EnvironmentalOfficer
Center for Environment
USAID/G/ENV/ENG
RRB Room 3.08-31
Washington, DC 20523-3800
USA
Tel: 1-202-712-1873
Fax: 1-202-216-3227
Email: jdesrosiers@usaid.gov
Mr. John Rothman
Senior Attorney
Multi Media Enforcementand
International Activities
U.S. Environmental Protection
Agency, Region 9
75 Hawthorne St.
San Francisco, CA 94105
USA
Tel: 1-415-744-1353
Fax: 1-415-744-1041
Email: rothman.john@epa.gov
Mr. Daniel Sabsay
Executive Director
Fundacion Ambiente y Recursos
Naturales(FARN)
Monroe 2142 (1428)
Buenos Aires
Argentina
Tel: 54-1-787-3820
Fax: 54-1-788-4266
Email: info@farn-sustentar.org
Justice Michael F.Saldanha
Judge
High Court of Karnataka
401 Silvercrest 13 Rest House
Road
Bangalore Karnataka 560 001
India
Tel: 91-80-286-3945-Office
Fax: 91-80-559-6713
Email:
Mr. Zlatko Samardziev
State Environmentallnspector
Departmentof Environment
Ministry of Urban Planning,
Construction and Environment
Skopska Crvena Opstina 4
Skopje 91000
Macedonia
Tel: 389-97-22-68-68
Fax: 389-97-22-66-93
Email: zlatkos@soros.org.mk
Mr. Alvaro Sapag Rajevic
Chief of Legal Deparment
CONAMA
Obispo DonosoS Providencia
Santiago 55
Chile
Tel: 562-240-5626
Fax: 562-240-5788
Email: asapag@conama.cl
Mr. Sadhu Ram Sapkota
Under Secretary (Law), Law and
Decentralizationsection
Ministry of Local Development,
HMG/Nepal
1/651, Ghattekulo
Kha, DellibazarKathmandu
Nepal
Tel: 977-1-418-002
Fax: 977-1-537-727
Email: psu@mos.com.np
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PARTICIRWLlST 623
Mrs. Namsrai Sarantuya
Director
Policy Coordination
Ministry of Nature and the
Environment
Government Building No. 3.
Bagatoruu-49
Ulaanbaatat 11
Mongolia
Tel: 976-1-329-619
Fax: 976-1-321401
Email: baig.yam@magicnet.mn
Ms. Lois Schiffer
Assistant Attorney General
Environments Natural Resources
Division
United States Department of
Justice
950PennsylvaniaAve. NW
Room 2718
Washington, DC 20530-0001
USA
Tel: 1-202-514-2701
Fax: 1-202-514-0557
Email: lois.schiffer@usdoj.gov
Ms. Jo Ann Semones Ph. D.
Senior Associate for
Enforcement
Region 9
U.S. Environmental Protection
Agency
75 Hawthorne Street (SPE-1)
San Francisco, CA 94105
USA
Tel: 1-415-744-1547
Fax: 1-415-744-2360
Email: semones.jo-ann@epa.gov
Dr. Babu Sengupta
Additional Director In Charge
Implementationand Enforcement
Central Pollution Control Board
Ministry of Environment and
Forest
Parivesh Bhawan C.B.D. Office
Complex East Arjun Nagar
New Delhi 110091
India
Tel: 91112221995
Fax: 91-11-221-7079
Email: cpcb@env.for.delhi.nig.in
Ms. M. Theresa Serra
Senior EnvironmentalSpecialist
Latin America and The Caribbean
The World Bank
1818 H Street, N.W.
Washington, DC 20433
USA
Tel: 1-202-473-5754
Fax: 1-202-522-3540
Email: tserra@worldbank.org
Mr. Armando Shalders Neto
Directorof Environmental Pollution
Control
Companhia de Tecnologia de
SaneamentoAmbiental (CETESB)
Av. Prof. Frederico
Hermann Jr., 345
Sao Paulo 05489-900
Brazil
Tel: 55-11-210-7623
Fax: 55-11-3030-6140
Email: armandos@cetesb.br
Mr. Eugene Shannon
Principal Environmentalist
Department OESU
African Development Bank
BPV316.ADB01B.P.1387
Abidjan 01
Cote D'lvoire
Tel: 225-205-558
Fax: 225-205-033
Email: e.shannon@afdb.org
Mr. Yasser Sherif
Director
Industrial Compliance Unit
Egyptian Environmental Affairs
Agency
30, Misr Helwan Agriculture Road
Maadi
Cairo 11728
Egypt
Tel: 20-2-525-6442
Fax: 20-2-525-6490
Email: eeaaepap@idscl.gov.eg
Mr. Nikolay Sidjimov
President
Local Authorities
Bulgarian Association of
Municipal Environmental Experts
1, Tsar Osvoboditel Street
Sliven 8800
Bulgaria
Tel: 359-44-22-651
Fax: 359-44-29-350
Email: office@sliven.uspc.bg
Mrs. Ana Magro e Silva
Inspector forthe Environment
Inspectorate General forthe
Environment
Ministry of the Environment
Rua da Rurgueira-Zambujal
Apartado 7585 Alfragide, 2720
Amadora
Lisbon
Portugal
Tel: 351-1-472-8241
Fax: 351-1-472-8389
Email: asr@dga.min-amb.pt
Ms. Alejandra Sobenes
Garcia
Directora Ejecutiva
Institutode Derecho Ambiental y
Desarrol lo Sustentable (I DEADS)
3a Avenida 4-68, Zona 1 2o.
Nivel
Citudadde Guatemala CP 01001
Guatemala
Tel: (502)253-1987
Fax: (502)253-1987
Email: ideads@pronet.net.gt
Mr. Carl Axel P. Soderberg
Director
Caribbean Office
Caribbean Environmental
Protection Division
1492 Ponce De Leon Avenue
Stop 22
Santruce 00907-4127
Puerto Rico
Tel: 787-729-6826
Fax: 787-729-7747
Email: Soderberg.carl@epa.gov
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624
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Milton Nokio Sogabe
Companhia de Tecnologia de
SaneamentoAmbiental (CETESB)
Av. Prof. Frederico
Hermann Jr., 345
Sao Paulo 05489-900
Brazil
Tel:
Fax: 55-11-813-2271
Email:
Dr. Mak Sophy
Director
PollutionControl, Reductionand
Prevention
Ministry of Environment
No. 48, Street Samdech Preach
Sihanouk, Tonle Bassac
Chamkarmon Phnom Penh
Cambodia
Tel: 855-234-27-844
Fax: 855-234-27-844
Email:
Ms. Linda Spahr
Bureau Chief
Enironmental Crime Unit
Suffolk County District Attorney's
Office
North County Complex, Building
77 Veteran's Memorial Hwy
Hauppauge,NY11787
USA
Tel: 1-516-853-5230
Fax: 1-516-853-4770
Email: sspahr@worldnet.att.net
Mr. Ton Spel
Head Commissionerof Police
Politie Noord-Holland-Noord
James Wattstraat 27
1817DGAIkmaar,
Postbus21
1800AAAIkmaar
The Netherlands
Tel: 31-72-549-7901
Fax: 31-72-549-7905
Email:
Mr. David Stagg
Programme Manager
Resource Use Group
Waikato Regional Council
P.O. Box 4010 Hamilton East
Hamilton East
New Zealand
Tel: 654-7-856-7184
Fax: 654-7-856-0551
Email: davids@wairc.govt.nz
Ms. Elaine Stanley
Director
Office of Compliance
U.S. Environmental Protection
Agency
401 M St. SW, 2221AR
Washington, DC 20460
USA
Tel: 1-202-564-2280
Fax: 1-202-564-0027
Email: stanley.elaine@epa.gov
Mr. Alex Steinmetz
ChiefDirector
Ministry of Transport and Water
Management
Postbus2301
8901 JH Leeuwarden
The Netherlands
Tel: 31-58-2344127
Fax: 31-58-2344136
Email:
Dr. Wonchat Subhachaturas
Deputy PermanentSecretary
Bangkok Metropolitan
Administration
173 DinsorRoad Pranakorn
District
Bangkok 10200
Thailand
Tel: 662-226-4871
Fax: 662-221-4866
Email: chaipong@health.
moph.go.th
Mr. Vincent D. Sweeney
Executive Director
Caribbean Environmental Health
Institute
The Morne Box 1111
Castries
St. Lucia
Tel: 758-452-2501
Fax: 758-453-2721
Email: cehi@candw.lc
Mr. Pornchai Taranatham
Deputy DirectorGeneral
Departmentof PollutionControl
Ministry of Science, Technology
and Environment
404 Phahon Yothin Center Bldg.
Phahon Yothin Road, Sam Sen
Nai, Phaythai
Bangkok 10400
Thailand
Tel: 662-619-2298
Fax: 662-619-2285
Email: pornchai.T@pcd.go.th
Mr. Ugen Tenzin
Under Secretary
National Environment Commission
Royal Government of Bhutan
P.O. Box 466
Thimphu
Bhutan
Tel: 975-2-23384
Fax: 975-2-23385
Email:
Dr. Viktoria Ter-Nikoghosyan
Head
Policy Development
Ministry of Industry and Trade
5 Hanrapetoutianstr.
Yerevan 375010
Armenia
Tel: 374-2-56-16-09
Fax: 374-2-151453
Email: tervika@freenet.am
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PARTICIPANT LIST 625
Mr. Epaminondas Toleris
Metallurgicaland Chemical
Engineer
Infrastructures and Networks
Ministry of the Environment,
Physical Planningand Public
Works
147 Patission Street
Athens GR-11 251
Greece
Tel: 30-1-862-3020
Fax: 30-1-856-2024
Email:
Mr. Gerrit van Tongeren
Managing Director
DCMR-Milieudienst Rijnmond
DCMR Environmental Protection
Agency
's-Gravelandseweg 565
31 19XT Schiedam,
Postbus843
3100AVSchiedam
The Netherlands
Tel: 31-10-246-8200
Fax: 31-10-246-8283
Email: gjt@dcmr.nl
Mr. Claudio Torres Nachon
Director
DASSUR
Centra de Derecho Ambiental e
IntergracionEconomicadel Sur
PrimoVerdad
Xalapa Veracruz 9 1 000
Mexico
Tel: 52-28-12-43-23
Fax: 52-28-18-20-28
Email:
Mr. Godber Tumushabe
Senior Research Fellow
1709 New York Avenue 7th Floor
Washington, DC 20006
USA
Tel: 1-202-662-2514
Fax: 1-254-257-3002
Email: center 2@wr.org
Dr. Pal Varga
Deputy Director
National Inspectorate of
Environmental Protection
Ministry of Environmentand
Regional Policy
Fo utca 44-50
Budapest H-1011
Hungary
Tel: 36-1-45-73-530
Fax: 36-1-20-14-282
Email: vargap@kik.ktm.hll
Ms. lleana Doina Vasilescu
Main Inspector
Waters - State Inspection Division
Ministry of Waters, Forests and
Environmental Protection
12, Blvd. Libertatii Sector 5
Bucharest 5
Romania
Tel: 40-1-410-5386
Fax: 40-1-410-2032
Email: vasilesc@icb.guru.ro
Ms. Clarisa Vega de Ferrera
Abogada y Notaria
Fiscalia Especial de Medio
Ambiente
MinistrerioPublico
CotoniaSCaminos
1a.CalleNo.3802
Tegucigalpa MDC
Honduras
Tel: 504-221-3122
Fax: 504-221-3166
Email: clarisa@ferrera.
sdn.hon.org.hn
Mr. Pieter J. Verkerk
InspectorGeneral
Inspectorate forthe Environment
Ministry of Housing, Spatial
Planning and the Environment
IPC680,Rijnstraat8
2515 XP The Hague,
P.O. Box 30945
2500 GX The Hague
The Netherlands
Tel: 31-70-339-4621
Fax: 31-70-339-1298
Email: verkerk@IMH-
HI.DGM.minvrom.nl
Mr. Phung Van Vui
Director
Inspectorate Body
National EnvironmentAgency
67 Nguyen Du
HaNoi
Vietnam
Tel: 84-4-8-223193
Fax: 84-4-8-223189
Email:
Mr. Jan Wolter Wabeke
Chief Public Prosecutor/D.A.
Justice
OpenbaarMinisterie
Sluissingel20
P.O. Box 90112
4800 RA Breda
The Netherlands
Tel: 31-76-5-311-311
Fax: 31-76-5-311-650
Email: ombreda@pi.net
Mr. Robert A. Wabunoha
Senior Environment Lawyer
Legal and Policy
National Environment
ManagementAuthority
Kampala Road -Amber House
P.O. Box 22255
Kampala
Uganda
Tel: 256-41-251064
Fax: 256-41-257521
Email: aryamany@starcom.co.ug
Mr. Martin Wagner
Lawyer
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite
1725
San Francisco, CA 94104
USA
Tel: 1-415-627-6700
Fax: 1-415-627-6749
Email: mwagner
©earthjustice.org
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626
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Stanislaw Wajda
Legal Advisor
Law Department
Ministry of the Environment
ul. Wawelska 52-54
Warsaw 00922
Poland
Tel: 48-22-825-85-73
Fax: 48-22-825-89-37
Email: swajda@polbox.pl
Mr. Cliff Wallis
Past President
International
Canadian Nature Federation
615DeercroftWay,SE
Calgary Alberta T2J 5V4
Canada
Tel: 403-271-11408
Fax: 403-271-11408
Email: deercroft@home.com
Ms. Cheryl Wasserman
Associate Director for Policy
Analysis
Office of Enforcement and
Compliance Assurance
U.S. Environmental Protection
Agency
401 M Street, SW, MC 2251A
Washington, DC 20460
USA
Tel: 1-202-564-7129
Fax: 1-202-564-0070
Email: wasserman.cheryl
@epa.gov
Ms. Laura Yoshii
Director
Cross Media Division, Region 9
U.S. Environmental Protection
Agency
75 Hawthorne St.
San Francisco, CA 94105
USA
Tel: 1-415-744-2198
Fax: 1-415-744-1514
Email: yoshii.laura@epa.gov
Mr. Durwood Zaelke
President
GEL
1367 Connecticut Avenue,
Suite 300
Washington, DC 20036
USA
Tel: 1-202-785-8700
Fax: 1-202-785-8701
Email: cieldz@igc.apc.org
Mr. Hongjun Zhang
Deputy Director
Legislative Office
Environmental Protections
Natural Resources Conservation
Committee
23, Xi Jiao Min Xiang
Beijing 100805
People's Republicof China
Tel: 86-10-6309-1630
Fax: 86-10-6494-2153
Email: zhanghj@mail.ied.ac.cn
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PARTICIPANT LIST BY COUNTRV 627
AFRICA
Benin
Botswana
Cameroon
Egypt
Ethiopia
Gambia
Ghana
Kenya
Kenya
Kenya
Malawi
Nigeria
Nigeria
Nigeria
South Africa
South Africa
South Africa
Tanzania
Tanzania
Dr. Alao Yekini Akala
Mr. Choma Johnson Matale
Mr. Pierre Mbouegnong
Mr. Yasser Sherif
Ato Girma Hailu .
Mr. Momodou A. Cham
Mr. George D.O. Asiamah
Mrs. Mary Karanja
Mr. Michael Ochieng
Odhiambo
Mr. Godber Tumushabe
Mr. Emest M. Makawa
Dr. Adegoke Adegoroye
Dr. Adejoju A. Falomo
Dr. Ikemefuna U. Onyekwelu
Ms. Angela Andrews
Ms. Thandi Gxaba
Ms. Maria Mbengashe
Mr. John Lubuva
Mr. Deogratias Ringia
Chief
Assistant Director of Cabinet
, Principal Air Quality Inspector
Adjoint au Chef
Director, Industrial
Compliance Unit
Counselor
Executive Director
Senior Program Officer
Inspectorate
Assistant Director
Nat'l Environment Secretariat
Executive Director
Senior Research Fellow
Principal Environment Officer
Legal
Director General/CEO
Assistant Director
Deputy Director
Lawyer
Director
Deputy Permanent Secretary
Province of Eastern Cape
Legal Counsel
Ministere de I'Environnement
de ('Habitat et de I'Urbanisme
Ministry of Minerals Energy
and Water Affairs
Ministere de L'Envrionnement
etdesForets
Egyptian Environmental
Affairs Agency
Ministry of Foreign Affairs
Inspection
National Environment Agency
Environmental Protection
Agency
Ministry of Environmental
Conservation
Resources Conflict Institute
(RECONCILE)
WRI
Ministry of Forestry,
Fisheries, and Environment
Environmental Affairs
Federal Environmental
Protection Agency (FEPA)
FEPA
Enforcement Training Center
Federal Environmental '
Protection Agency
Legal Resources Center (LRC)
Environmental Program
Department of Environmental
Affairs and Tourism
Economic Affairs, Environment
and Tourism
Lawyers' Environmental
Uganda Mr. Robert A. Wabunoha
Zimbabwe Mr. Mfaro Moyo
ASIA AND PACIFIC
Australia Ms. Maria Comino
Australia Mr. James Johnson
Senior Environment Lawyer
Legal and Policy
Chief Technical Advisor,
and Tourism
Environmental Lawyer
Director
Action Team
National Environment
Management Authority
Ministry of Mines, Environment
Healthy Rivers Commission
Environmental Defender's
Office
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628
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Australia
Bhutan
Bhutan
Cambodia
Cambodia
Indonesia
Indonesia
Indonesia
Laos
Malaysia
Malaysia
Malaysia
Malaysia
Mongolia
Mongolia
Mongolia
Mongolia
New Zealand
Papua New
Guinea
PRC (China)
PRC (China)
PRC (China)
Resources
PRC (China)
Hong Kong
The
Philippines
The
Philippines
South Korea
Mr. Adam Parker
Mr. Damcho Dorji
Mr. UgenTenzin
Mr. Sam Chamroeun
Dr. Mak Sophy
'Mr. Nursohib Hudan
Mr. Margana
Koesoemadinata
Ms. Rosa Vivien Ratnawati
Ms. Monemany
Nhoybouakong
Mr. Hashim Daud
Ms. Roshadah Hashim
Mr. Jalaluddin Ismail
Or. Aziz Abdul Rasol
Ms. Bolormaa Batsukh
Mr. Tserendash Damdin
Mr. A. Enkhbat
Mrs. Namsrai Sarantuya
Mr. David Stagg
Ms. Lois Kesu Nakmai
Mrs.WeiCai
Mrs.ShiQiuchi
Mr. Hongjun Zhang
Mr. Patrick Lei
Mr. Julia Amador
Mr. Antonio A.Oposa, Jr.
Mr. Kyoo-WonJo
Senior Project Manager,
Waste Management Division
Deputy Registrar General
Under Secretary
Deputy Director
Legal Affairs and Planning
Director
Reduction and Prevention
Head
Region of East Java
Director of Air Pollution
Control
Environmental Lawyer
Director General
Dept. Env. Policy and
Director
Department of Environment
Environment Control Officer
Director
Dept. of Environment
Director
Officer
International Cooperation
Deputy Director
Envir. Protection Agency
Project Coordinator
Biodiversity Project Office
Director
Policy Coordination
Programme Manager
Assistant Secretary
Division Chief
Legislative Department
Department of Environmental
Protection
Royal Court of Justice, High
Court Justice
Royal Government of Bhutan
Nat'l Environment Commission
Ministry of Environment
Ministry of Environment
Pollution Control
East Java Regional Envir.
Impact Management Agency
Environmental Impact
Management Agency
Environmental Impact
Management Agency
Science, Technology and
Environment Organization
Ministry of Science,
Technology and Environment
Department of Environment
Ministry of Science
State, of Selangor
Department of Environment,
Sarawak
Ministry of Nature and the
Environment
Ministry of Nature and the
Environment
Ministry of Nature and
Environment
Ministry of Nature and the
Environment
Waikato Regional Council
Resource Use Group
Ministry of Environment
Environment and Conservation
Envir. Protection Committee
of National Congress
Deputy Division Chief Water Resources Ministry
Water Admin. & Water Resources
Deputy Director
Legislative Office
Principal Envir. Protection Off.
Water & Waste Water Policy.
Assistant Director
Envir. Natural Resources
President
Assistant Director,
International Affairs
Envir. Protection & Natural
Conservation Committee
Environmental Protection
Department
Environmental Management
Bureau
A Oposa and Associates
Ministry of Environment
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PARTICIPANT LIST BY COUNTRY 629
South Korea Mr. Ji-Tae Kim
South Korea Mr. Yun-HwaKo
Thailand
Thailand
Thailand
Mrs. Kasemsri Homchean
Dr. Wonchat Subhachaturas
Mr. Pomchai Taranatham
Director, Domestic Wastewater
Control Division
Director, Air Quality Policy
Division
Director, Environmental
Control and Safety Division
Deputy Permanent Secretary
Deputy Director General
Dept. of Pollution Control
Vietnam
Vietnam
Mr. Nguyen Khac Kinh
Mr. Phung Van Vui
Deputy General Director
Director
Inspectorate Body
SOUTH ASIA
Bangladesh
India
India
India
India
India
Nepal
Nepal
Sri Lanka
Sri Lanka
Mr. A.R. Khan
Mr. G.D. Agarwal
Mr. Mahesh Chandlr Mehta
Mr. G. Rengasamy
Justice Michael F. Saldanha
Dr. Babu Sengupta
Mr. Narayan Belbase
Mr. Sadhu Ram Sapkota
Ms. Ramani Ellepola
Mr. K.H. Muthukuda
Arachchi
Director General
Member Secretary
Lawyer-activist
Member Secretary
Judge
Additional Director In Charge
Implementation & Enfor.
Coordinator
Under Secretary (Law)
Law & Decentralization
Acting Deputy Director
General
Deputy Director
WEST ASIA/MIDDLE EAST
Israel
Israel
Mr. Eli Ben Ari
Legal Division
Adv.Neta Cohen
Senior Attorney
Defense
Assistant Legal Advisor
Israel
Adv. Ron! Komar
Legal Division
Deputy Director General
CENTRAL AND EASTERN EUROPE
Ms. Ermira Basha
Albania
Albania
Armenia
Azerbaijan
Director
Project Implementation
Environmental Lawyer
Legislation & Public Relations
Mr. Bajram Mejdiaj
Dr. ViktoriaTer-Nikoghosyan Head
Mr. Arif Islamzade Project Manager
Ministry of Environment
Ministry of Environment,
Republic of Korea
Industrial Estate Authority of
Thailand
Bangkok Metropolitan
Administration
Ministry of Science,
Technology and Environment
National Environment Agency
National Environment Agency
Department of Environment
Madhya Pradesh State
Pollution Control Board
Housing and Environment
Indian Council for
Environmental Legal Action
Tamil Nadu State Pollution
Control Board
High Court of Kamataka
Ministry of Envir. & Forest
Central Poll. Control Board
IUCN Nepal
Environmental Policy and Law
Ministry of Local
Development, HMG/Nepal
Central Environmental Auth.
Environmental Protection
Central Environmental Auth.
Environmental Protection
Israel Union for Environmental
Ministry of the Environment
Ministry of the Environment
Education and Enforcement
National Enviro. Agency
Directorate of Environmental
National Environmental
Agency
Ministry of Industry and Trade
Policy Development
Environmental Rehabilitation
of Sumgait, UNDP Project
-------
630
Azerbaijan
Bulgaria
Bulgaria
Czech
Republic
Czech
Republic
Czech
Republic
Estonia
Estonia
Hungary
Hungary
Latvia
Lithuania
Lithuania
Lithuania
Macedonia
Poland
Poland
Poland
Romania
Romania
Russia
Slovak
Republic
Ukraine
Uzbekistan
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Guliyev Mamedsadykh
Water Users Charges
Mr. GeorgiDonkov
Mr. Nikolay Sidjimov
Ms. Helena Cizkova
Prof.Eva Kruzikova
Dr. LadislavMiko
Mr. Heiki Nurmsalu
Dr. Rein Ratas
Dr. Sandor Fillop
Dr. PalVarga
Mr. Indrikis Barkans
Ms. RutaBaskyte
Mr. Arvydas Dragunas
Mr. Antanas Petrauskas
Mr. Zlatko Samardziev
Mr. Boguslaw Dabrowski
Dr. Jerzy Jendroska
Mr. Stanislaw Wajda
Mr. Barna Bartha
Ms. lleana Doina Vasilescu
Ms. Vera Mischenko
Mr. Ivan Rajniak
Ms. Svitlana Kravchenko
Mr. Alexander Petrovich
Head, Water Resources &
Water Industry
President
Adviser to the Deputy
Minister,
Director
Deputy Director
Director General
Secretary General
Attorney at Law
Deputy Director
National Inspectorate of Env.
Deputy Director
Envir. Protection Dept.
Advisor of the Minister
Director of the General
Strategy Department
State Environ. Inspector
Department of Environment
Head
Inspection Division
Director, Environ. Law
Information & Advocacy
Legal Advisor
Lawyer
Main Inspector
Waters- State Inspection Div.
President
Chief Inspector
Dept. of Air Pollution Control
Professor, President
Department Head
Committee of Melioration and
Bulgarian Green Federation
Bulgarian Association of
Municipal Envir. Experts
Ministry of the Environment
International Relations Dept.
Institute for Environmental
Policy
Czech Environment Inspection
Nature SLandscape Protection
Estonian Environmental
Inspectorate
Ministry of the Environment
Environmental Management
and Law Association
Ministry of Environment and
Regional Policy
Ministry of Envir. Protection
and Regional Development
Ministry of the Environment
Ministry of Environmental
Protection
Ministry of Environmental
Protection
Ministry of Urban Planning,
Construction and Environment
Voivodeship Inspectorate for
Environmental Protection
Polish Environmental Law
Association Service
Ministry of the Environment
Law Department
Focus Eco Center
Ministry of Waters, Forests and
Environmental Protection
Ecojuris Institute of
Environmental Law
Slovak Inspectorate of
Environment
Ecopravo-Lviv
Ministry of
Mironenkov
Uzbekistan Ms. Valentina Mikhailovna
Rijova
WESTERN EUROPE
Austria Ms. Waltraud Petek
Belgium
Dr. Sc. Robert Baert
Rural Infrastructure Devel.
Head
Nature Protection
Deputy Director General
Poll. Prev. & Control of Install.
Inspector-General
Environment Inspection Sect.
Macroeconomics and Statistics
State Committee for
Air Protection Department
Federal Ministry for Envir.,
Youth, & Family Affairs
Environment, Nature, Land,
& Water Management Admin.
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PARTICIPANT LIST BY COUNTRY 631
Belgium
Denmark
Finland
Finland
Germany
Germany
Greece
Greece
Ireland
Italy
Norway
Portugal
Spain
Sweden
Sweden
Sweden
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
Mr. Jean Pierre Janssens
Enforcement Unit
.Mr. Peter Jorgensen
Mr. MarkkuHietamaki
Mr. Antero Honkasalo
Mr. Andreas Gallas
Mr. Dieter Krane
Mrs. Katerina lacovidou
Anastassiadou '
Mr. Epaminondas Toleris
Mr. Ken Macken
Mr. Francesco La Camera
Mr. BentBolstad
Mrs. Ana Magro e Silva
Ms. Ana Barreira
Ms. Inga Birgitta Larsson
Mr. Mikael Lundholm
Ms. Kia Regner
Mr. R.C. Bakx
Mr. P.A.C Bselaerts van
Blokland
Dr. Kees Boekel
Mr. Joost Buntsma
Mr. Jaap van Dijk
Mr. Paul A. E. van Erkelens
Mr. Jo Gerardu
Mr. Robert Glaser
Mr. Jan van den Heuvel
Mr. Henk G.H. ten Hoopen
EersteAdviseur
Milieubeheer
Head of section
Senior Technical Adviser
Environmental Counsellor
Director General, Office of
General Envir. Law and EIA
Under-Secretary of State
Air Pollution Department
Chemist/Inspector
Division of Industries
Metallurgical & Chem. Eng.
Infrastructures and Networks
Acting Manager
Licensing and Control
Deputy Director General
EIA Department
Inspector for the Environment
Director
Head, Chemical Industy Sect.
Implementation & Enf. Dept.
Legal Advisor
Implementation & Enf. Dept.
President
Head of Enforcement
Division
Chairman
Deputy Regional Inspector
Directorate-General for Public
Works and Water Management
Gedeputeerde Provinciaal
Bestuur
Chairman of Waterboard
Head, Strategy Planning
and Control Division
Inspector, International
Affairs/IMPEL Coordinator
Director, General Policy Affairs
Director
Public Works & Water Mngt.
Brussels Instituutvoor
Ministry of the Environment
Danish Envir. Protect. Agency
Ministry of the Environment
Dept. for Envir. Protection
Ministry of the Environment
Dept. for Envir. Protection
Fed. Ministry for the Envir.,
Nature Conserv., Nuclear Safety
The Environment Ministry of
State North-Rhine Westfalia
Ministry of the Environment,
Physical Planning & Public Works
Ministry of the Environment,
Physical Planning & Public Works
Environmental Protection
Agency
Ministry of the Environment
Norwegian Pollution Control
Authority
Ministry of the Environment
Insp.Gen. for the Environment
Instituto International de
Derecho y Medio Ambiente
Swedish Environmental
Protection Agency
Swedish Environmental
Protection Agency
The International Federation
of Environmental Health
Province of North Holland
Water and Nature
National Coordination Comm.
on Envir. Enforcement
Inspectorate for the
Environment-East
Ministry of Transport, Public
Works
Provincial
Government of Groningen
Waterschap Regge en Dinkel
(Waterboard)
Ministry of Housing, Spatial
Planning and the Environment
Ministry of Housing, Spatial
Planning and the Envrionment
Ministry of Housing, Spatial
Planning and the Environment
Dutch Shipping Inspectorate
Ministry of Transport, Public
-------
632
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
The
Netherlands
Turkey
United
Kingdom
United
Kingdom
United
Kingdom
United
Kingdom
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Dr. Jit Peters
Mr. Ton Spel
Mr. Alex Steinmetz
Mr.Gerrit vanTongeren
Mr. Pieter J. Verkerk
Mr. JanWolterWabeke
Mr. Murat Sungur Bursa
Mr. Christopher Booth
Mr. Ken Ledgerwood
Dr. Paul Leinster
Mr. Nigel Peaple
Director, International
Environmental Affairs
Head Commissioner of
Police
Chief Director
Managing Director
DCMR-MjIieudienst Rijnmond
Inspector General
Inspectorate for the Envir.
Chief Public Prosecutor/D.A.
Acting Undersecretary
Regulatory Process Manager
Envir. Protect. Nat'l Service
Chief Industrial Pollution
and Radiochemical Inspector
Director, Environmental
Protection Directorate
EU and International Affairs
Adviser
Ministry of Housing, Spatial
Planning and the Environment
Politie Noord-Holland-Noord
Ministry of Transport and
Water Management
DCMR Environmental
Protection Agency
Ministry of Housing, Spatial
Planning and the Environment
Openbaar Ministerie
Ministry of the Environment
The Environment Agency
(England and Wales)
Environment and Heritage
Service (Northern Ireland)
The Environment Agency
The Environment Agency
National & Int'l Relations
CARIBBEAN
Bahamas
Bonaire
Haiti
Jamaica
Puerto Rico
St. Lucia
Ms. Melonie McKenzie
Mr. Oswin C. Cristina
Mr. JeanPierre Moise
Mr. Fred Campbell
Mr. Carl Axel P. Soderberg
Mr. Vincent D. Sweeney
Assistant Director
Environmental Officer
Engineer, Waste
Mngt & Pollution Unit
Deputy Executive Director
Environment and Compliance
Director
Caribbean Office
Executive Director
Ministry of Consumer Welfare
and Aviatidn
Selibon N.V.
Ministry of Environment
Natural Resources
Conservation Authority
Caribbean Environmental
Protection Division
Caribbean Environmental
Health Institute
CENTRALAMERICA
Costa Rica
Guatemala
Honduras
Nicaragua
Nicaragua
Nicaragua
Panama
Ms. Irene Virginia Araya
Ortiz
Ms. Alejandra Sobenes
Garcia
Ms. Clarisa Vega de Ferrera
Ms. Aura Lila Guadamuz
Ms. Maria Teresa Lopez
Fernandez
Ms. Marianela Rocha
Mr. Fernando Fabian
Asesora Legal
Directora Ejecutiva
Abogada y Notaria
Legal Advisor
Environmental Department
Chief for the Environmental
Unity at Comptroller's Office
Lawyer/National
Environmental Prosecutor
Fiscal Superior del Tercer
Secretaria Technics Nacional
Ambiental
Institute de Derecho Ambiental
y Desarrollo Sustentable
Ministrerio Publico Fiscalia
Especial de Medio Ambiente
FUNDENIC
Contraloria General de la
Republica
Ministry of the Environment
Ministerio Publico Procuraduria
Gutierrez Pimentel
Distrito Judical
General de la Nation
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PARTICIPANT LIST BY COUNTRY 633
NORTH AMERICA
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Canada
Mexico
Mexico
Mexico
Mexico
Mexico
Mexico
Ms. Nancy Bircher
Mr. Robert Chouinard
Ms. Jerry Clarke
Mr. ChristopherCurrie
Enforcement Mngt. Division
Mr. Peter K.Krahn
Mr. Peter Levedag
Ms. Linda Nowlan
Mr. George Rejhon
Mr. Cliff Wallis
Mr. Gustavo Alanis
Mtro.Antonio Azuela
de la Cueva
Mtra. Martha Banuelos
Cardenas
Lie. Miguel Angel Cancino
Aguilar
Mtra.Norma S. Munguia
Aldaraca
Mr. Claudio Torres Nachon
Director, Wildlife Branch
and Parks
Directeur Adjoint
Direction Des Enquetes
Emergencies and Enforcement
Branch
Chief, Enforcement Branch
Senior Enforcement Engineer
Inspections Division
Head, Investigation Section
Emergencies & Enfor. Division
Association
Past President
President
Federal Attorney for the
Environment Protection
Advisor to the Federal
Attorney
General Director for Legal
Affairs
International Affairs
Coordinator
Director
Ministry of Environment, Lands
Ministere de I'environnenet et
de la faune du Quebec
Environmental Protection
Division
Environment Canada
Environment Canada, Pacific
and Yukon Region
Environment Canada
West Coast Environmental Law
Friends of the Earth
Canadian Nature Federation
International
Mexico Center for
Environmental Law (CEMDA)
PROFEPA
PROFEPA, Centre de Docum.
de Proteccion al Ambiente
PROFEPA
Legal Affairs
PROFEPA
International Affairs
Centra de Derecho Ambiental
Economica del Sur DASSUR e Intergracion
United States Mr. Michael Alushin
United States Ms. Susan Bromm
United States Ms. Carol Browner
United States Mr. Reggie Cheatham
United States Mr. Earl Devaney
United States Ms. Marlen Dooley
United States Ms. Gail C. Ginsberg
United States Mr. Steven A. Herman
United States Mr. Craig Hooks
United States Mr. Ron Kreizenbeck
Director, International
Enforce. & Compliance Div.
Deputy Director, Off. or
Remediation Enforcement
Administrator
Deputy Director, Regional
Office of Site Remediation
Director, Off. of Criminal
Enforcment Forensics & Training
Assistant Commissionerfor
Compliance and Enforcement
Regional Counsel
Office of Regional Counsel
Assistant Administrator
OECA
Director
OECA
Director
OECA
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
New Jersey Department of
Environmental Protecton
U.S. Envir. Protecton Agency
Region V
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
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634
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COWIPUANCE AND ENFORCEMENT
United States Mr. Harley Laing
United States Mr. Andy Lauterback
United States Mr. Jonathan Libber
United States Ms. Nancy Marvel
United States Mr. Tom Maslany
United States Ms. Ignacia Moreno
United States Mr. David Mowday
United States Ms. Marcia Mulkey
United States Ms. Connie Musgrove
United States Mr. William Nitze
United States Mr. Lee Paddock
United States Mr. Dean Paige
United States Mr. Michael Fenders
United States Mr. John Rothman
United States Ms. Lois Schiffer
United States Ms. Jo Ann Semones Ph. D.
United States Ms. Linda Spahr
United States Ms. Elaine Stanley
United States Mr. Martin Wagner
United States Ms. Cheryl Wasserman
United States Ms. Laura Yoshii
SOUTH AMERICA
Argentina Mr. Daniel Sabsay
Bolivia
Brazil
Mr. Eduardo Moreno
Lafuente
Office Director, Office of
Environmental Stewardship
Senior Criminal Enforcement
Counsel, Office of Council
Attorney
Regional Counsel
Office of Regional Counsel
Director
Water Protection Division
Counsel to the Assistant
Attorney General
International Activities
Coordinator
Office Director
Office of Pesticide Programs
Office of Regulatory
Enforcement
Assistant Administrator
Office of International Activities
Director of Environmental
Policy
Environmental Compliance
Officer
U.S. Envir. Protecton Agency
Region 1
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
Region 9
U.S. Envir. Protecton Agency
Region 3
U.S. Department of Justice
Envir. & Natural Resource Div.
U.S. Envir. Protecton Agency
Region 9
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
Minnesota Attorney General's
Office
City of Santa Rosa, Sonoma
County
Special Counsel, Off. of Criminal U.S. Environmental Protection
Enforcement Forensics & Training
Senior Attorney, Multi-Media U.S. Envir. Protecton Agency
Enforce. & International Activities
Assistant Attorney General U.S. Department of Justice
Envir. & Nat. Resources Division
Brazil
Mr. Airton Chiurato
Mr. Antonio Herman
Benjamin
Senior Associate for
Enforcement
Bureau Chief
Enironmental Crime Unit
Director
Office of Compliance
Lawyer
Assoc. Dir. for Policy Analysis
OECA
Director
Cross Media Division
Executive Director
Director
Saneamento Ambiental
President
U.S. Envir. Protecton Agency
Region 9
Suffolk County District
Attorney's Office
U.S. Environmental Protection
Earthjustice Legal Defense
Fund
U.S. Envir. Protecton Agency
U.S. Envir. Protecton Agency
Region 9
Fundacion Ambiente y
Recursos Naturales (FARM)
Ministerio de Desarrollo
Sostenible y Planificacion
Companhia de Tecnologia de
Lawyers for a Green Planet
Institute
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PARTICIPANT LIST BY COUNTFW 635
Brazil
Brazil
Brazil
Chile
Chile
Chile
Colombia
Colombia
Ecuador
Peru
Peru
Peru
Ms. Maria Da Penha Alencar
Mr. Armando Shalders
Neto
Mr. Milton Nokio Sogabe
Mr. Marcelo Castillo
Sanchez
Mr. Fernando Dougnac
Mr. Alvaro Sapag Rajevic
Ms. Claudia Adaloizaa
Arias Cuadros
Ms. Claudia Mora
Ms. Trinidad Ordonez
Ms. Martha Aldana
Ms. Maria Cuadros Dulanto
Mr. Manuel Pulgar-Vidal
Saneamento Ambiental
Director of Environmental
Pollution Control
Saneamento Ambiental
Attorney
Private Public Interest Lawyer
Chief of Legal Deparment
Advisor
Office of Sustainable Dev.
Attorney, Foundation for the
Defense of Public Interest
Anthropologist
Minister Ad visor
General Coordinator
Environmental Adviser
Executive Director
Ambiental (SPDA)
Companhia de Tecnologia de
Companhia de Tecnologia de
Saneamento Ambiental
Companhia de Tecnologia de
Fundacion Terram
CONAMA
Ministerio del Medio Amblente
FUNDEPUBLICO
Ministerio Medio Ambiente
VIDA
Fishing Ministry
Sociedad Peruana de Derecho
Venezuela Mr. Santos Jose Carrasco
Rodriguez
Venezuela Mr. Luis Padron
INTERNATIONAL
Mr. Eugene Shannon
Dr. Marco Antonio
Gonzalez Pastora
Mr. Durwood Zaelke
Ms. Linda F. Duncan
Mr. David L. Markell
Dr. Michael Axline
Dr. John Bonine
Ms. Susan Casey-Lefkowitz
Mr. J.William Futrell
Mr. Eric R. Dannenmaier
Ms. BetskeGoinga
Ms. Susan Hay
Mr. GilNolet
Director General
Director General Seotorial
de Vigilancia y Control
Principal Environmentalist
Department OESU
Director, Environmental
Legislation Program
President
Head
Cooperation
Head, Submissions on Enf.
Matters Unit (SEM)
President
Chair of Board
Senior Attorney, Envir. Program
Central & Eastern Europe
President
Director of Environmental
Law Program
Coordinator of IMPEL (SC 1)
Principal Administrator, Envir.
Nuclear Safety & Civil Protection
Legal Specialist
Environment Division
Min.del Ambiente y de los
Recursos Naturales Renovables
Min.del Ambiente y de los
Recursos Naturales Renovables
African Development Bank
CCAD
CIEL
Commission for Environmental
Commission for Environmental
Cooperation
Environmental Law
Alliance Worldwide
Environmental Law
Alliance Worldwide
Environmental Law Institute
Environmental Law Institute
North South Center
European Commission
DG XI, BU-5,4/48
European Commission DG XI
Inter-American Development
Bank (IDB)
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636
FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND
Mrs.JytteEkdahl
Mr. Joel Reynolds
Ms. Christie Jorge
Dr. Richard Meganck
Mr. Prasantha Dias
Abeyequnawardene
Dr. Ananda Raj Joshi
Ms. Sabine Hoefnagel
Mr. Lai Kurukulasuriya
Mr. J. Paul E. des Rosiers
Ms. Jean Aden
Mr. Arne Dalfelt
Ms. Michele de Nevers
Ms. M. Theresa Serra
Specialized Officer
In-Charge
Senior Attorney and
Director of the Urban Program
Consultant, Unit for
Sustainable Dev. & Env.
Director, Unit for
Sustainable Dev. & Env.
Deputy Director-Programmes
Director-General
Associate Expert Policy
and Law,
Chief, Regional
Environmental Law, Regional
Environmental Officer
Senior Institutional Specialist
East Asia Environment Sector
Environmental Specialist
African Environment Unit I
Sector Leader
Europe and Central Asia
Senior Environmental Spec.
Latin America & The Caribbean
INTERPOL
Economic Branch/E
Natural Resources Defense
Council
Organization of American
States
Organization of American
States
South Asian Cooperative
Environment Programme
South Asian Cooperative
Environment Programme
UNEP
European Regional Office
UNEP
Office for Asia and the Pacific
USAID/G/ENV/ENG
Center for Environment
The World Bank
The World Bank
The World Bank
The World Bank
-------
MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE 637
MEMBERS OF THE INECE EXECUTIVE PLANNING COMMITTEE
Dr. Adegoke Adegoroye
Director General/CEO
Federal Environmental Protection Agency
Independence Way South Central Area
Garki Abuja PMB 265
Nigeria
Tel: 234-9-234-2807
Fax: 234-1-585-1570
E-Mail:
Mrs. Costanza Adinolfi
Director of Directorate B -Environmental Instruments
DGXl
European Community
Rue de La Loi 200
B-1049 Brussels
Belgium
Mr. George Kremlis
Head of Unit, Legal Affairs
European Community
Avenue de Beaulieu 5
B-1160 Brussels
Belgium
Tel: 32-2-29-567-11
Fax: 32-2-29-688-26
E-Mail: Costanza.adinolfi@
dg11.cec.be
Tel:
Fax:
E-Mail
32-2-29-665-26
32-2-29-910-70
Mrs. Jacqueline Alois! de Larderel
Director.UNEP.IE
United Nations Environment Program
39-43 Qua! Andre Citroen
Tour Mirabeau
75739 Paris Cedex 15
France
Tel: 331-44-371441
Fax: 331-44-371474
E-Mail: j.aloisi@unep.fr
Dr. Michael Axline
President
Environmental Law Alliance Worldwide - US Board
Professor, School of Law
1221 University of Oregon, 1101 Kincaid Street
Eugene, Oregon 97403-1221
USA
Tel: 1-541-346-3826
Fax: 1-541-346-1564
E-Mail: elawus@igc.apc.org
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638 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mtro. Antonio Azuela
Federal Attorney for the Environment Protection
Periferico Sur. No. 5000
5° Piso, Col. Insurgentes Cuicuilco
Districto Federal
Mexico City 04530
Mexico
Mtra. Norma Munguia Aldaraca
International Affairs Coordinator, PROFEPA
Periferico Sur. No. 5000
5° Piso, Col. Insurgentes Cuicuilco
Districto Federal
Mexico City 04530
Mexico
Tel: 525-528-5409
Fax: 525-328-5432
E-Mail: (See below)
Tel: 525-528-5515
Fax: 525-666-9334
E-Mail nmunguia@correo.
profepa.gob.mx
Mr. Sirithan Pairoj Boriboon
Director Genera!
Pollution Control Department
404 Phahon Yothin Center Building
Phahon Yothin Road Sam Sen Nai Phayathai
Bangkok 10400
Thailand
Tel: 66-2-619-2316
Fax: 66-2-619-2275
E-Mail:
Mr. Marlito Cardenas
Assistant Director, Office of the Undersecretary
for Environmental and Program Development
Department of Environment and Natural Resources
Visayas Avenue, Quezon City
Philippines
Tel: 63-2-928-4969
Fax: 63-2-926-5595
E-Mail:
Ms. Helena Cfzkova
Advisor to the Deputy Minister
Ministry of the Environment of the Czech Republic
International Relations Department
New Town Hall
Prokesovo nam. 8 702 00 Ostrava
Czech Republic
Tel: 420-69-628-2362
Fax: 420-69-611-8798
E-Mail: cizkova@env.cz
Mr. Christopher Currie
Chief
Enforcement Management Division
Environment Canada
Place Vincent Massey 17th Floor
351 St. Joseph Boulevard
Hull, Quebec K1AOH3
Canada
Tel: 1-819-953-3882
Fax: 1-819-953-3459
E-Mail: chris.currie@ec.gc.ca
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MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE 639
Mr. Rodrigo Egana Baraona
Executive Director
National Commission for the Environment
Obispo Donoso N. 6
Santiago 55
Chile
Ms. Patricia Matus
Obispo Donoso 6, Casilla 265
Santiago 55
Chile
Tel: 562-240-5600
Fax: 562-244-1262
E-Mail: (See below)
Tel: 562-240-5665
Fax: 562-244-1262
E-Mai: pmatus@conama.ci
Dr. Ossama EI-Kholy
Senior Advisor
Egyptian Environmental Affairs Agency
13 Street 265, New Maadi
Cairo 11742
Egypt
Mr. J. William Futrell
President
Environmental Law Institute
1616 P Street, NW, Suite 200
Washington, D.C. 20036
USA
Ms. Susan Casey-Lefkowitz
Co-Director
Environmental Program for
Central and Eastern Europe
Environmental Law Institute
1616 P Street, NW, Suite 200
Washington, D.C. 20036
USA
Tel: 20-2-352-1325
Fax: 20-2-378-0222
E-Mail: eeaa@idsc.gov.eg
Tel: 1-202-939-3800
Fax: 1-202-939-3868
E-Mail: futrell@eli.org
Tel: 1-202-939-3865
Fax: 1-202-939-3868
E-Mail: casey@eli.org
Mr. Marco Antonio Gonzalez Salazar
Vice Minister
Ministerio del Ambiente y Energia
Calle 25 Avenidas 8 y 10
San Jose, Costa Rica
Tel: 506-257-5658
Fax: 506-222-4580
E-Mail:
Dr. Francois Hanekom
Deputy Director-General
Department of Environmental Affairs and Tourism
Private Bag X447
Pretoria 0001
South Africa
Tel: 27-12-310-3666
Fax: 27-12-322-9231
E-Mail: sek_rs@ozone.
pwv.gov.za
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640 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Mr. Steven A. Herman
Assistant Administrator Tel:
Office of Enforcement and Compliance Assurance Fax:
U.S. Environmental Protection Agency E-Mail:
401 M Street, SW MC 2211 A
Washington, D.C. 20460
USA
Ms. Cheryl Wasserman
Associate Director for Policy Analysis Tel:
Office of Enforcement and Compliance Assurance Fax:
U.S. Environmental Protection Agency E-Mail:
401 M Street, SW MC 2251 A
Washington, D.C. 20460
USA
1-202-564-2440
1-202-501-3842
(See below)
1-202-564-7129
1-202-564-0070
wasserman.cheryl@
epa.gov
Mr. Zbigniew Kamiehski
Deputy Chief Inspector for Environmental Protection
State Inspectorate for Environmental Protection
ul. Wawelska 52-54
Warsaw 00 922
Poland
Tel: 48-22-254-859
Fax: 48-22-254-129
E-Mail: zbigkam@pios.gov.pl
Ms. Svitlana Kravchenko
President, Ecopravo - Lviv
Lviv State University
2 Krushelnitskoi Street
Lviv 290 000
Ukraine
Tel: 38-0322-722-746
Fax: 38-0322-971-446
E-Mail: svitlana@epac.lviv.ua
Dr. Paul Leinster
Director Tel:
Environmental Protection Directorate Fax:
The Environment Agency E-Mail:
Rio House, Waterside Drive, Aztec West
Waterside Drive, Aztec West
Almondsbury,BS32 4UD, Bristol
United Kingdom
Mr. Nigel Peaple
EU and International Affairs Adviser Tel:
National and International Relations, Fax:
The Environment Agency E-Mail:
Rio House, Waterside Drive, Aztec West
Waterside Drive, Aztec West
Almondsbury,BS32 4UD, Bristol
United Kingdom
44-1454-62-4065
44-1454-62-4319
paul.leinster@
environment-agency.
gov.uk
44-1454-62-4028
44-1454-62-4319
nigel.peaple®
environment-agency.
gov.uk
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MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE 641
Mr. Nabiel Makarim
Deputy Minister
BAPEDAL
Environmental Impact Management Agency
Arthaloka Bldg 11th Floor, JL Jenderal Sudirman No. 2
Jakarta 10220
Indonesia
Tel:
Fax:
E-Mail:
62-21-251-1540
62-21-251-1483
Mr. Armando Shalders Neto
Director of Environmental Pollution Control
Companhia de Tecnologia de Saneamento Ambiental
Av. Prof. Frederico Hermann Jr., 345
05489-900 Sao Paulo
Brazil
Tel: 55-11-210-7623
Fax: 55-11-3030-6140
E-Mail: armandos@cetesb.br
Ms. Michele de Nevers
Sector Leader
Europe and Central Asia
The World Bank
1818 H Street. N.W.
Washington, D.C. 20433
USA
Tel: 1-202-473-8607
Fax: 1-202-477-3291
E-Mail: mdenevers®
woridbank.org
Ms. Jean Aden, Asia
Ms. M. Theresa Serra, Latin America
Mr. Jean Roger Mercier, Africa
Mr. Charles di Leva, Law and Legal Systems
Tel: 1-202-458-2749
Fax: 1-202-522-1666
E-Mail: jaden@worldbank.org
Tel: 1-202-473-5754
Fax: 1-202-522-3540
E-Mail: tserra@worldbank.org
Tel: 1-202-473-5565
Fax: 1-202-473-8185
E-Mail: jmercier@worldbank.org
Tel: 1-202-458-1745
Fax: 1-202-522-1573
E-Mail: cdileva@worldbank.org
Dr. Aziz Abdul Rasol
Director Tel: 60-8-241-8535
Department of Environment, Sarawak Fax: 60-8-242-2863
9th Floor, Bangunan Sultan Iskandar Jalan Simpang Tiga E-Mail: pasar@po.jaring.my
93592 Kuching, Sarawak
Malaysia
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642 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Dr. Babu Sengupta
Additional Director in Charge
Implementation and Enforcement Division
Central Pollution Control Board
Parivesh Bhawan
C.B.D Office Complex East Arjun Nagar
New Delhi 110032
India
Tel: 91-11-2221995
Fax: 91-11-2217079
or 2204948
E-Mail: cpcb@env.for.delhi.nig.in
Dr. Pal Varga
Deputy Director
National Inspectorate of Environmental Protection
Ministry of Environment and Regional Policy
P.O. Box 351
1394 Budapest
Hungary
Tel: 361-45-73-530
Fax: 361-20-14-282
E-Mail: vargap@kik.ktm.hll
Mr. Pieter J. Verkerk
Inspector General
Inspectorate for the Environment / IPC 680
Ministry of Housing, Spatial Planning
and the Environment
Rijnstraat 8, 2515 XP The Hague
P.O. Box 30945, 2500 GX The Hague
The Netherlands
Mr. Jo Gerardu
Head of Division
Strategy, Planning and Control
Inspectorate for the Environment / IPC 680
Ministry of Housing, Spatial Planning
and the Environment
Rijnstraat 8, 2515 XP The Hague
P.O. Box 30945, 2500 GX The Hague
The Netherlands
Mr. Robert Glaser
Inspector, International Affairs
Ministry of Housing, Spatial Planning
and the Environment
Seissingel 4, P.O. Box 394
4330 AJ Middelburg
The Netherlands
Tel: 31-70339-4621
Fax: 31-70339-1298
E-Mail: verkerk@IMH-HI.DGM.
minvrom.nl
Tel: 31-70-339-2536
Fax: 31-70-339-1300
E-Mail: Jo.Gerardu@IMH-HI.
DGM.minvrom.nl
Tel: 31-11-863-3792
Fax: 31-11-862-4126
E-Mail: rob.glaser@wxs.nl
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MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE 643
Mr. Hongjun Zhang
Deputy Director, Legislative Office of
Environmental Protection & Natural Resources
Conservation Committee
23, Xi Jiao Min Xiang
Beijing 100805
People's Republic of China
Tel: 86-10-6309-5155
Fax: 86-10-6494-2153
E-Mail: zhanghj@mail.
ied.ac.cn
INECE EXECUTIVE PLANNING COMMITTEE STAFF
Mr. Jo Gerardu
Ms. Cheryl Wasserman
Internet site
Head of Division Strategy, Planning and Control,
VROM, The Netherlands
Associate Director for Policy Analysis, Office of
Enforcement and Compliance Assurance, USEPA
www.INECE.org
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644 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
PROJECT MANAGEMENT AND CONFERENCE SUPPORT
Mr. Jo Gerardu
Co-staff, INECE Executive Planning Committee
Head of Divison
Strategy, Planning and Control
Inspectorate for the Environment / IPC 680
Ministry of Housing, Spatial Planning and the Environment
P.O. Box 30945, 2500 GX The Hague, The Netherlands
Ms. Cheryl Wasserman
Co-staff, INECE Executive Planning Committee
Associate Director for Policy Analysis
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
401 M Street, SW, MC 2251 A
Washington, D.C. 20460, USA
Tel: 31-70-339-2536
Fax: 31-70-339-1300
E-Mail:Jo.Gerardu@IMH-HI.
DGM.minvrom.nl
Tel: 1-202-564-7129
Fax: 1-202-564-0070
E-Mail:wasserman .cheryl@
epa.gov
Consultants
Science Applications International Corporation Tel:
(SAIC) Fax:
7600-A Leesburg Pike INT:
Falls Church, VA 22043, USA
1-703-917-7952
1-703-917-1672
www.saic.com
Ms. Susan Casey-Lefkowitz
Co-Director
Environmental Program for Central & Eastern Europe
Environmental Law Institute
1616 P Street, NW Suite 200
Washington, D.C. 20036, USA
Sub-grantee
ESA, Inc.
Ms. Shari Oley, President
11501 Georgia Avenue, suite 405
Wheaton, MD 20902, USA
Sub-grantee
Hagler Bailly Services, Inc.
1530 Wilson Boulevard
Arlington, VA 22209, USA
Sub-grantee
Global Environment
540 Morris Way
Sacramento, CA 95864, USA
Tel: 1-202-939-3865
Fax: 1-202-939-3868
E-Mail: casey@eli.org
Tel: 1-301-946-7879
Fax: 1-301-946-8984
E-Mail: oley@esa-intl.com
Phone: 1-703-351-0300 .
Fax: 1-703-351-6166
INT: www.haglerbailly.com
Phone: 1-916-483-1564
Fax: 1-916-484-7124
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ACKNOWLEDGEMENTS 645
ACKNOWLEDGEMENTS
The Fifth International Conference on Environmental Compliance and Enforcement in
Monterey, California, USA was made possible by the personal and financial contributions
of many organizations and individuals. Of course the Conference could not have been the
success it was without the very active and thoughtful contributions of all the participants. A
special note of thanks must go to the Conference speakers, topic experts, moderators,
workshop facilitators and rapporteurs and those who volunteered to offer on-site clinics and
prepare papers, all of whom are colleagues making a special effort to share their experiences
and help facilitate our exchanges at the Conference. The quality of the workshop summaries
is testimony to their hard work on which we will continue to build. Special thanks as well
go to those contributing materials for the Conference exhibits which offered a wealth of
information and insight on country progress, regional cooperation and NGO networks and
which demonstrated exciting new uses of Internet and computer technology for cost-efficient
training and support.
The Executive Planning Committee (EPC) to the International Network for Environmental
Compliance and Enforcement, INECE, whose membership is listed in these Proceedings,
provided leadership and direction in the design of the program, selection of the speakers and
topic experts, and identification of individuals from a range of nations who would be in the
best positions to share practical experience in environmental compliance and enforcement
to improve or develop domestic compliance and enforcement programs, and to engage in
ongoing networking, capacity building and enforcement cooperation. The Executive Planning
Committee included government and non-governmental representatives from the U.S.
Environmental Protection Agency (USEPA), The Netherlands Ministry of Housing, Spatial
Planning and the Environment (VROM), the United Nations Environment Program (UNEP
IE), the World Bank, the European Commission, the Environmental Law Institute (ELI) and
Environmental Law Alliance Worldwide (E-LAW), Canada, Mexico, Brazil, Chile, Costa Rica,
United Kingdom (UK), Poland, Czech Republic, Hungary, Ukraine, Egypt, Nigeria, South
Africa, India, Malaysia, Thailand, Indonesia, the People's Republic of China and the
Philippines.
The Environmental Law Institute (ELI) served as the umbrella organization for Conference
funding and organization. Funding of the Conference logistics, planning and workshop
development was provided by the conference sponsors: USEPA, VROM, European
Commission, UNEP IE, United Kingdom (The Environment Agency for England and Wales),
Environment Canada and the Environmental Law Institute with contributions from Jim
Compton for the excellent evening event at the inspiring Monterey Acquarium to promote
informal networking. Funding of participants was graciously provided by The Netherlands'
Ministry of Environment, Department of International Affairs, the World Bank, the U.S. Asia
Environmental Partnership, and U.S. Agency for International Development, the Trust for
Mutual Understanding, the Ford Foundation and the Commission on Environmental
Cooperation (in North America). The latter three contributions-were particularly helpful in
expanding the participation of NGOs.
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646 FIFTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Important new capacity building support documents were developed for use during and
following the Conference. An International Inspector Training Compendium, Course and
Program Comparison was prepared by Science Applications International Corporation (Jack
Mozingo and Valerie Breecher) under the technical direction of Ms. Cheryl Wasserman and
Mr. Jo Gerardu. A first generation country progress/self assessment format was prepared
by Ms. Cheryl Wasserman and Mr. Jo Gerardu in cooperation with the Executive Planning
Committee and results compiled by Mr. Tony Descidue of Tetratech Inc. aided by Enterprise
Support Associates' data entry and databank reports, and Ms. Susan Casey-Lefkowitz, ELI,
in regard to public role for a first draft working report of international status of country
compliance and enforcement programs and priorities for capacity building. A new guide
entitled: "Citizen Enforcement: Tools for effective Participation", prepared by Ms. Susan
Casey-Lefkowitz puts into one place the experiences shared over the past conferences in
support of effective public involvement for compliance and enforcement. Finally, an elaborated
Internet site (www.inece.org) was developed supported by Ms. Shari Oley of Enterprise
Support Associates with all conference proceedings and capacity building documents
benefitting from an indexing of all papers and documents prepared from prior Conferences
by Science Applications International Corporation (SAIC) under the technical direction of Ms.
Cheryl Wasserman.
A substantial number of participants were able to join one of the three optional site visits on
the day following the close of the conference. From many accounts this was one of the high
points of the Conference as participants expressed to us how impressed they were with state
of the art practices which they were able to see first hand, and with the tremendous
hospitality they were shown, which made the tours both educational and enjoyable. In
particular we note the contributions of Mr. William Merry, District Engineer, Monterey Regional
Waste Management District and his staff for the tour of their state-of-the-art solid waste
management operation and their creative use of market approaches in the "Last Chance
Mercantile" where discarded items are offered for sale. We also note Mr. Keith Israel, General
Manager, Monterey Regional Water Pollution Control Agency, and his staff at the state-of-
the-art wastewater treatment and reclamation plant, and the contributions of Mr. Ken
Greenberg, USEPA's San Francisco Office, who offered his expertise in inspection for the
site visit to the Monterey solid waste treatment and sewage treatment plants to the acclaim
of about 60 participants fortunate enough to go on this optional site visit on Saturday morning.
Mr. Lyle Shurtleff, Community Relations Specialist, International Technology Corporation at
the Fort Ord Reuse Authority and his staff for providing an impressive example of military base
closure, remediation and reuse. Many of the participants are coping with similar problems
of abandoned or closing military installations and the visit to Fort Ord provided an excellent
example of how one can safely close, clean-up and make productive future use of sites that
have contamination from prior military activities and ensure optimal recycling of residual
building materials from on-site demolition. 40 participants were able to visit USEPA's regional
laboratory through the courtesy of Carl Kohnert, Peter Husby, Richard Bauer, Liza Finley,
Andy Lincoff, Patricia Mack, Jennifer Mann, and Nancy Wilson who offered their expertise
on laboratory operations. Our deep appreciation to the directors and their staffs who took
time out of their Saturday to provide this experience and certainly one of the high points of
the Conference.
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ACKNOWLEDGEMENTS 647
Mr. Jo Gerardu of VROM and Ms. Cheryl Wasserman of USEPAwere responsible for staffing
the Executive Planning Committee, drafting the Conference program, brochure and
supporting materials, managing the on-site activities at the Conference and editing the
Proceedings, developing the INECE Brochure and Internet Site, and preparing concluding
remarks. Ms. Susan Casey-Lefkowitz of ELI, Mr. Jo Gerardu of VROM and Cheryl
Wasserman of USEPA served as Project Managers under the funding agreements. Many
thanks too, to USEPA's San Francisco Office (Region IX), particularly to Ms. Felicia Marcus
Regional Administrator, Deputy Regional Administrator Ms. Laura Yoshii, Mr. John Wise and
Mr. David Mowday, International Coordinator, who had responsibility for overall coordination
of Region IX support to man the registration desk, offer clinics, coordinate site visits and
provide rapporteur support to conference workshops and meetings and press liaison
including: Jo-Ann Semones, enforcement coordinator, Laura Fujii, Laura Gentile, Lon Payne
and Sam Farrel, Clyde Morris, Jacques Landy, Ken Greenberg, Pam Tsai, and Paula Bruin.'
A special note of appreciation to ELI subgrantee Enterprise Support Associates (Ms. Shari
Oley, principal, with support from Ms. Yelena Zbarsky and Ms. Dorothy Santos) without
whose tireless contributions, the five day conference and optional site visits would not have
been as smoothly working as they did. They provided excellent support for complex EPC
meeting and Conference logistics, refining and maintaining the databank with research on
contacts and possible candidates for Conference participant invitations, helped to manage
communications with officials from over 130 countries and organizations and provided desktop
publishing of these Proceedings.
Cover design based on an original concept by Joke Krul, The Netherlands
Desktop publishing by Shari Oley and Dorothy Santos, ESA, Inc.
Printing by House of Printing, Inc. representative - Mr. Joseph Biandford
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VROM 17033
International Network for Environmental Compliance and Enforcement
1 N • E • c • E
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