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officers had a mixed role during such visits. They were giving information, guiding the enterprise,
negotiating new technical solutions, and enforcing existing claims. For one person to separate all
these different roles was of course difficult. Quite often, the enforcement role was given less priority
than the informer and consultant role. We have to keep in mind that the permits given in the beginning
of the 1970's were extremely detailed and the knowledge about environmental problems  and the
consciousness In industry was very low. This was a period where education of the industry was given
first priority.
        In 1983 SFT realized  it needed a more  professional monitoring of compliance and
enforcement. A small division with 5 inspectors was  established in 1986. The division sorted under
the Department of  Industry. The  evaluation of checklists to ensure more efficient examinations during
inspections was started. Compliance monitoring was also largely based on self-monitoring and reports
from industry. This self-monitoring had to be checked. Until the middle of the 1980's, source testing
was undertaken by a third party, but it was not systematically used. SFT had neither equipment nor
competence to do source testing. About 1987 SFT  decided to obtain equipment and to build up
competence in order to do source testing of discharge to water, air and noise. The reason for this
choice was the need for increased ability to check self-monitoring both during source testing and
inspections. To be able to judge the observations made during the inspections and to discuss possible
non-compliance, it is necessary to have skill about these professions. External laboratories were used
to analyse samples taken.
        The number of inspectors within the division increased gradually. In 1986 a regulation stating
the "polluter pays principle" was passed. This imposed on industry the costs connected with  granting
permits and monitoring of compliance. The price list for inspections and audits with or without source
testing is given in figure 2. The price depends on estimated time consumption for the task. (The
enterprises  are divided in four groups depending on potential discharge and the sensibility of the
surroundings.)
        During the second half of the 1980's, the competence in industry as well as the awareness
of environmental problems were considerably improved. This opened the possibility for auditing the
industries' management systems, which started In 1988. Since the beginning of the 1990's, the permits
are no longer as detailed as before; the discharges limits are now given within a framework.
        In the period between 1983 and 1991, the inspections were undertaken by both the inspectors
and the officers responsible for issuing the permit.
        The development of an  inspection corps in  the Department of Chemicals and Hazardous
Waste has a similar history. In the beginning, the case officers did a kind of inspection. A regulation
concerning the financing of inspection activity was passed in 1987. This regulation is based on the
manufacturers' or  importers' handling of hazardous chemicals. A fixed annual fee per product or
chemical has to be paid to the state. This led to the establishment of a separate division of inspectors
within the department in 1988,
        Control Division Telemark has a somewhat special history. In 1975 SFT received applications
for the establishment of two new petrochemical enterprises in an already densely industrialized area
called Grenland, These permits were granted on the condition that a special inspection group be
established. This group of three to four persons was located in the area. Their task was to monitor
the air quality and compliance of local industry. The group is a part of the State Pollution Control
Authority. A parliamentary resolution stated the obligation of the local industry to carry the total cost
connected with this group. This group started immediately with inspections of local industry in addition
to monitoring the air quality. Source testing was included In the monitoring program shortly after.
        The group has increased gradually and consists today of 9 officers, 3.5 of these persons who
are fully occupied with running the air monitoring network. The others monitor compliance of the local
 industry. The total  cost of the group is approximately 5,5 mill. NOK a year (approx. 0,8 mill, U.S.$).
        In 1991 the three divisions of inspectors, sorting under different departments, were gathered
 in  one department,  At  the same time,  the Environmental Investigation Division was established.
 Monitoring compliance and enforcement was now considered a special skill. Organizing the inspector
corps in this way facilitates and clarifies the role of the inspectors. The inspector has only one role

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66           .                THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
towards the inspected body, namely enforcement. An argument against this separation is that the
inspectors' contact with and knowledge about the enterprises, and accordingly also their ability to
reveal possible non-compliance, are reduced. This is of course true. We try to compensate for this
reduction  in site knowledge through the way we prepare and organize the .inspections. Auditing is
always done by a team of inspectors. The case officer is normally a part of the team. Thus the benefit
of their knowledge is used. The separation of the tasks has given the inspector an important role in
quality assurance of permits. Lack of enforcement of the permits is immediately reported back to the
case officer.  The same goes for irrelevant permits. During the inspections, areas for potential
improvement are pointed out. This information is useful when new permits are established.
3      FINANCING

       The inspector corps are, as mentioned earlier, financed mainly through different types of fees.
The fees cover about 80 % of the total cost of the department. Preparedness in the event of accidental
discharges or industrial fires  is not  financed through fees. The fees are based on three different
principles.

3.1    Control Division Telemark

       The local industry refunds annually the total cost of the division. A bill is sent to the enterprises
once a year, The cost is divided between seven enterprises according to an agreed key. The current
cost is approx. 5,5 mill. NOK  (0,8 mill, U.S.$).

3.2    Chemical Control Division                       	

       Manufacturers and importers have to pay an annual fee for all chemicals that are harmful to
health and environment.  The  annual fee is today 600 NOK per chemical. This  will be changed in
1994. We intend to make the fee vary depending on quantity handled and degree of hazard. We
expect an income of approx.  3,5 mill. NOK (0,5 mill. U.S.$) in 1994.        .

3.3    Industrial Compliance Division

       The list of the different fees are illustrated in figure 2, The principle is that  the inspected body
should pay the cost connected with executing the task.  In order to avoid a.system where the costs
are invoiced according to actual time used (which might lead to many long, unproductive discussions
about time consumption), the fees follow the control class of the enterprise. Ail enterprises with a
permit are ciassified  in one  of four control classes. The classification is based on the potential
discharges from the enterprise and their toxicity. The environmental sensitivity (air and water quality)
of the surroundings are also taken into account.
        Inspections and audits undertaken by the Environmental Investigation Division are invoiced
according to the same fee system.
       We expect to invoice  6,5 mill. NOK (0,93 mill. U.S.$) through this system in  1994.
 4      EDUCATION

        The qualifications needed by the inspectors depend on several factors. What are they going
 to enforce, and are the provisions detailed or do they give the inspectors room to use their judgement?
 What inspection activity are they expected to execute, only inspections, or are source testing and
 auditing included? What is the role and responsibility of the inspector? How is  the knowledge and

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                           67
Control class                   Per inspection                  Per source test/environmental audit 1)
                              US Dollar                     US Dollar
1
2
3
4
2,00
1,600
1,200
500
23,700/15,000
15.000/ 9,000
5.000

Figure 2.  Fees.

consciousness with regard to environmental questions in the inspected body? What Is the background
of the inspectors? All these problems have to be considered when the training program is planned.
       SFT has mainly recruited people with a technical education from university as case officers
and inspectors, normally at a Master of Science level. When we go back to the 1970's, we find that
the case officers got a good general education through several external courses. To be honest, we
sent our case officers to Sweden, where general courses dealing with purification of discharge to air
and water were arranged. The legal aspects were dealt with through internal training. Little or no
special training was given in monitoring compliance and enforcement.
       When the special groups of inspectors  was established, these skills got more attention.
Foreign countries were visited, and the inspectors brought back checklists and other useful material.
We got input from many countries: the United States, Germany, Sweden, and The Nederlands to
mention some of them. The checklists were modified in order to fit into the Norwegian system, and
our system for source testing built upon what they learned abroad. Training in these first years was
to a great extent on-the-job training combined with external courses  about purification techniques
and other special technical topics. A set of  instructions  and procedures about how to perform
monitoring of compliance and enforcement was developed.
        From the second half of the 1980's until today, a training program for the inspectors, covering
the different inspection methods and enforcement, has gradually developed. The training program is
built on internal and external courses and on-the-job training under the guidance of an experienced
Inspector, The steps are  illustrated in figure 3.
        To illustrate how the  system works, the content of step one is listed:
        »  Study and  get acquainted with the internal instructions and procedures for the
          inspection activity (the quality book for the department)
        •  Study training  videos: "Safety at inspections" and "The role and responsibility of
          the inspector"
        •  Study a report and a video about "inspection of discharge to air"
        «  Get acquainted with the principles for the industries'self-monitoring program and
          the internal control
        •  Get first a simple education about the legal aspects
        •  Go with an experienced inspector on at least three inspections
        •  Be responsible for one inspection under the guidance of an experienced inspector.

        Step one qualifies for inspecting minor, not too complicated, enterprises.
        Step two extends the inspectors' knowledge about measuring discharge, to air and water,
taking samples and securing evidence in  case of legal actions. Knowledge about technical problems
 in the different industries may be included. On-the-job training through inspection of more complicated
enterprises under guidance  is undertaken. During step 2, the first training in auditing and interviewing
 Is given. Step two qualifies for inspection of all kinds of enterprises.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                       Inspection
                       [even
                Chemical
                Inspections
 Industry
                 Qualities for Inspection of
                 small enterprises
                       Inspection
                       level 2
                Chemical
                Inspections
  Industry
                 Qualities for inspection of
                 all types; of enterprises
                          Auditing level 1
Qualities tor assisting
during audits
                        inspection
                   Special education for
                   Environmental
                   Investigation Division
                          Auditing level 2
                        Qualities to lead an
                        audit
                                                        Certification
                                                        of
                                                        auditors
Figure 3.  Training program.

        Step three is a specialization of the inspectors in the Environmental Investigation Division.
This includes the use of special equipment for sampling and communication, and the use of different
data systems for obtaining necessary information as quickly as possible.
        Basic knowledge in source testing and auditing is necessary in order to assist during audits.
Through assisting  experienced auditors, necessary experience is gained. We have both internal and
external courses in auditing, but to be a good auditor it is important to get experience through real
audits.  We hope to get an official certification system for auditors, but this is not yet established.
        Only a few of the inspectors are specialized in source testing. We intend to have three to four
inspectors with competence in source testing of discharge to air, water, or noise. Their specialization
builds to a great extent on external training programs.
        All newcomers, no matter what level they start at in the organization, get a "godmother" or
-"godfather" to help them with  practical and professional problems. Our experience is that this helps
their start in the new job.
        Individual  considerations have to  be taken in order  to  implement the  Gaining program
efficiently. The training program for the inspectors is discussed at least once a year. An individual
plan for each inspector should be drawn up. On the average the inspector have reserved two weeks
every year for education  and training. Senior inspectors use this time to broaden their competence.
Just as important as time is that financing and  sufficient economic resources are allocated in the
budget.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         B9


COMPLIANCE MONITORING OF COMPANIES MARKETING CHEMICAL
SUBSTANCES IN SWEDEN

THORAN, KARIN1 and SliRALA, KIRSTI2

1 Head of Inspections Division, National Chemicals Inspectorate, Sweden
2 Dr., Senior Inspector, National Chemicals Inspectorate, Sweden
P.O. Box 1384, S-171 27 Soina, Sweden
       SUMMARY

       The legal basis for chemicals control in Sweden, and for enforcement regarding companies
 marketing chemical substances are described. A campaign with focus on car care products, which
 included a survey of chemical preparations on the market, inspections of supplying companies,
 information activities aimed at producers, users and retailers, is described.
       This combination of activities was all over important for the results of the campaign, which
 led to less hazardous preparations, in many cases due to substitution of hazardous substances or
 to products withdrawal from the market.
       One important way to prevent risks posed by chemical substances in preparations is to hinder
 them from entering the market.
 1      INTRODUCTION; CHEMICALS CONTROL IN SWEDEN

       The use of chemical products contributes to the diffuse dissemination of chemical substances
 to the environment In addition to exposure risk to humans. The main objective for chemicals control
 in Sweden is to prevent injury to man and the environment caused by the use of chemical products.
       The Act (1985:426) on Chemical Products is the legal basis for chemicals control in Sweden.
 The Act takes into account the need for health protection in the occupational and consumer use
 areas as well as protection of the environment. The emphasis of the Act is put on the marketing stage
 of  chemical products, but all other stages of the life-cycle are considered.
       The Act places the main responsibility for chemicals cento! on manufacturers and importers
 of  chemical products. They are responsible for assessing the  products,  for replacing hazardous
 products  by less hazardous  ones and for  providing adequate information about the hazardous
 properties to the users. The obligation of product substitution is put on users as well as on producers
 and is based on Section 5 of the Act:

       Anyone handling or importing a chemical product shall take such steps and otherwise
       observe such precautions, as are necessary to prevent or minimize harm to human
       beings or to the environment. This includes avoiding chemical products for which less
       hazardous substitutes are available.
       The  National Chemicals Inspectorate (Keml) is the governmental agency responsible for
 controlling the observance of the Act on Chemical Products. One important task for the inspectorate
 is to ensure that manufacturers and importers of chemical products fulfill their obligations according
 to  the legislation and regulations. Other tasks for the Inspectorate are  to increase the knowledge
 regarding the effects of chemicals and to follow the presence and flow of chemicals  in society.
       The Inspectorate  monitors compliance and the inspection targets are the manufacturers and
 importers who market chemical products. These companies are found in the Swedish products
 register to which all producers and importers have to report their products. At present there are about
 50,000 products  registered by 2,300 companies

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 70                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
        Main control issues are product assessments, including investigations of both  health and
 environmental effects, product substitutions and the quality of the product information. Identification
 of inadequate compliance will be followed by requirements for improvement which, if necessary, can
 be connected to injunction with the penalty of fine. Violations are notified to the police.
 2      ENFORCEMENT CAMPAIGN WITH FOCUS ON CAR CARE PRODUCTS

        An enforcement campaign focusing on car care products was carried out from 1989 to 1992,
 The starting point was a survey of car care products on the market which was reported in 1990 (1).
 This activity was initiated by the Inspectorate and executed by two contracted consultants. According
 to the report, over 400 different car care products covering about 90 product types (cleaning agents,
 rust protection products, varnish, etc.) were found on the market. Car cleaning products were studied
 separately in more detail and described in another report (2).
        The number of motor vehicles in Sweden is about 3.6 million cars and 300,000 trucks and
 buses for a population of 8.7 million. The car represents a considerable cost, and the need for good
 maintenance demands current and  immediate  protective care and repair of the car.  The Swedish
 climate is an important factor when considering the need for car care; high humidity creates  rust, icy
 roads are made safer by road salts or spikes on tires which, in turn, causes problems with corrosion
 and asphalt dirt, unless the cars are frequently cleaned and protected. Large amounts of petroleum .
 solvents and tensides are used in car cleaning products.

 2.1     Inspections

        In  1990-91 an inspection project was carried out including 25 companies, producers and
 importers marketing car care products (3). Companies were selected mainly from the Swedish product
 register, and the  selection was based on numbers of products and  volumes reported. Some
 companies known to authorities as less serious concerning chemicals control matters  were  also
 selected for  the project. The companies represented about 800 products, from which 375 were
 selected for  a closer check. These  products contained about 140 various chemical substances
 hazardous to health or to the environment. The inspections focused on the competence of chemicals
 control at the companies, their work with product assessment and product development concerning
 hazardous substances, and the quality of the product information.
       . The requirements on substitution of hazardous products  involved 65 products from 13
 companies. The very harmful substances at focus for substitution requirements  were chlorinated
 solvents (methylene chloride, 1,1,1-trichloroethane, trichloroethylene), short-chained glycol ethers and
 hydrofluoric acid,
        The outcome of the substitution  work was that the harmful substance in 25 products was
 substituted, 3 products were reformulated, 18 products were withdrawn from the market,  and for 16
 products the companies presented satisfactory schedules for product development.
   ..     -|^e jnSpectjOn requirements on product information resulted in more complete information
 and improved quality, which will increase the possibilities for the user to make better product choices.
        A second inspection project in 1992-93 included car cleaning products from 20 manufacturers
 who represented more than 75% of the market. The requirements focused on  investigation,
•- assessment and product information regarding the environmental effects of the chemical substances,
 based on the  regulations  on criteria for environmental hazards of chemical substances (Keml
 Regulations 1992:2, Regulation on classification and labelling in connection with transfer of chemical
 substances  dangerous for the environment).  Hazardous  environmental properties, such as
 unsatisfactory biodegradability, can be found for many tensides. It resulted in a more complete
 product information about the environmental effects which could serve as a basis for product choice.
 During this period the amount of petroleum  solvents in car cleaning products  decreased  to more
 than half the amount.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         71
2.2    Communications and outreach

       The survey report (1) was given much attention in the media due to a press conference
arranged by the Inspectorate, which contributed to increasing public knowledge.
       Local municipal authorities in the municipalities increased their knowledge in the product field
and showed a growing interest in car care products. Many local authorities carried out control activities
and supported users, retailers and consumers.
       In collaboration with the Swedish Consumer Agency the Inspectorate produced a brochure
on car cleaning aimed for the public. The message in the brochure covered advice on environmentally
sound car cleaning and product selection, and pointed out the importance of using as mild and as
low an amount as possible of chemicals when cleaning the car in the street or yard. The brochure
was distributed to a large extent by the petrol station companies.
       The Inspectorate's knowledge in this product field was also utilized in the work with criteria
on ecolabelling of car care products.
3     CONCLUSIONS

       A combination of activities, such as  increase of knowledge and  information, authority
requirements on the supplying companies together with the demands from users, workers as well as
consumers, has shown to be an effective way to generate less hazardous products representing less
hazards  to health and the environment.
       REFERENCES

 1. Car Care Products -  Possibilities for Changes. A Pilot Study. Report from the Swedish National
   Chemicals Inspectorate, January 1990 (in Swedish).

 2. Environmentally Designed Degreasing of Motor Vehicles. Report from the Swedish National Chemi-
   cals Inspectorate, December 1990 (in Swedish).

 3. Car Care Products - A Supervision Project. Report from the Swedish National Chemicals Inspec-
   torate, March 1992 (English summary).

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         73


A DECENTRALIZED APPROACH TO INSPECTION AND ENFORCEMENT DONE
BY COUNTIES AND MUNICIPALITIES IN DENMARK

KAAE, OLE

Senior consultant, Danish Environmental Protection Agency, Strandgade 29, DK-1401 Copenhagen
K, Denmark


       SUMMARY

       In  Denmark administration and enforcement of environmental legislation is done by local
government (275 municipalities and 16 counties). This way of administration and enforcement raises
the question, how to secure a certain level of quality in this process and its results. A general survey,
how these problems are solved in Denmark, is given. The paper focuses primarily on, how a uniform
level of inspection (as a precondition to enforcement) is secured by the Danish E.RA., in a way, that
holds local government responsible.


1      INTRODUCTION: LOCAL GOVERNMENT IN DENMARK

       In  Denmark, administration and enforcement of the environmental legislation is basically
carried out by local government.
       Denmark (5.000.000 inh., 43.000 km2) is administratively divided into 16 counties, and
subdivided into 275 municipalities. The average municipality has 10.000 inhabitants - a few are smaller
and  several are bigger; especially the municipalities  with larger cities - e.g. the municipality of
Copenhagen has 470.000 inhabitants. On average, a county has a population of 300.000 to 400.000
inhabitants.
       The municipalities and the counties are administratively and politically independent of each
other. Each of the  two levels of local government has its separate functions to fulfill; also in the field
of environmental protection.
       The principle behind the division of labour between municipality and county is, that the
specialized functions and the most costly functions are done by the county while the more general
functions,  and functions limited to a smaller area are done by the municipalities (1).
       The Danish Environmental Protection Agency - a part of the Danish Ministry of Environmental
Protection - has no executive branches, either on the state level or on one decentralized level.
       Local government- municipalities and counties - are headed by elected councils. Each council
has  the responsibility for carrying out administration of the relevant laws and are setting up a local
administration to do this. The local government is financed by taxes imposed by the local government
(2).
       This means that there can be substantial differences between the municipalities or the counties
in the way they are carrying out their tasks according to national law.
       The legislative power rests solely on the Danish Parliament ("Folketinget") who are passing
all national legislation.
       These national  laws constitute the legal framework for the administration carried out by local
government. Besides environmental protection, the local governments are as a whole responsible for
basis education, high schools, hospitals, roads, etc.

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74                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      DANISH ENVIRONMENTAL LEGISLATION AND THE DIVISION OF LABOUR
       BETWEEN THE STATE AUTHORITY AND LOCAL GOVERNMENT

2.1     The administrative framework

       The first Danish Environmental Protection law was passed in 1972.
       In relation to industrial and agricultural production the legislation regulates the activities in
three ways:
       • It holds some basic general prohibitions; e.g. it is  forbidden to discharge waste
         water or other kinds of waste to streams or lakes without a permit.
       * It defines that  a license is  needed to begin or enlarge some  clearly defined
         industrial and agricultural activities.
       • It gives the possibility to impose restriction on all kinds of ongoing activities if the
         actual or potential pollution is unacceptable.

       The licences for new activities (see 2 above) and the restriction on ongoing activities (3)
3 above) is generally carried out through a set of conditions to secure, that pollution in all aspects
Is at a tolerable level.
       According to the  law, each  level of local government has its own,  independent area of
responsibility administrating and enforcing this law.
       The  inspection of sites, plants and the general environment  in  order to enforce  the
environmental protection law is carried out by local government.
       The 275 municipalities employ all in all 470 inspectors - the counties employ a total  of 320
inspectors - these inspectors' only task is to enforce the environmental legislation,
       Issuing of permits  is done by local government and also imposing of environmental restrictions
on ongoing activities is carried out by the counties or the municipalities, according to the division of
labour between these two authorities.
       In these relations, the Danish Environmental  Protection Agency has practically no executive
tasks to carry out.
       But the Agency provides the local government with guidelines on how to administrate the law
and on the recommended standards for emission and emission of pollutant substances to either air,
soil or water.
       These standards  are only recommendations. They are not - either formal or in practice  -
standards that have to be followed by the local government.

2.2    Why local government?

       The way local government is carried out in Denmark reflects a common understanding of
democracy, basic for the Danish  society. The decisions must be taken by those, who are primarily
affected by the consequences. The distance between the citizen and the decision-makers shall be
as short as possible, and there must be room for regional and local differences in the way things
are done,
       Focusing on the environmental administration,  local government  was found expedient
because of the different sustainability of the various, geographical locations.
       Not all parts of the environment have the same vulnerability and some parts must be protected
more than others. It was felt that knowledge of these facts and slight differences in the policy towards
the environment could be better reflected in decisions taken by local government than in decisions
taken by state authorities.
       Finally the local governments have to face the political  responsibility of the way environmental
policy is carried out in the municipality or the county.  This gives the citizens a close insight  and
influence on the environment in which they live.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          75
2.3    Problems in local government in relation to environmental administration

       Despite all advantages, at the same time,  local government creates a number of problems
in relation to environmental administration and enforcement.
       The differences in the way compliance enforcement is done in the various municipalities or
counties can be too big, causing the  non-fulfillment of the environmental policy established on the
national level. Some municipalities may prioritize low taxes instead of a proper environment, and thus
by a relaxed enforcement and compliance checking create local environmental conditions that are
below average.
       These municipalities will often neglect environmental administration, causing a low level of
activity in inspection and thus enforcement.  They will, in the process of permitting, set standards
below what is recommended in the guidelines issued by the Environmental Protection Agency or they
will draw back from intervening in ongoing activities, which cause unacceptable pollution.
       This is of cause a serious threat towards the environment and the overall national policy in
this field. But it is also a problem for the industry as a whole. If  local government in the field of
enforcement of environmental legislation  creates  too big a difference between the various
municipalities in relation to the environmental conditions for running  a specific production, the results
will be uneven competition-conditions  for these production. Local government in this way can cause
"environmental dumping"; e.g. with  the hindsight to accumulate  jobs in  the municipality on the
expense of the environment.
       The  Danish system of environmental administration has  been working for over 20 years and
is still based on local  government. This proves,  that these problems has not been prevalent - else
the system would have been changed. But The Danish E.PA. has  continuously to be aware of this
complex of problems;  both in the continuous process of maintaining and developing this system and
to react promptly in the - fortunately - rather few cases, where  municipalities or counties fail to live
up to standard.
 3     RELATIONS BETWEEN STATE: AND LOCAL GOVERNMENT IN ENVIRONMENTAL
       ADMINISTRATION AND COMPLIANCE CHECKING

 3.1    Conditions for the relation state - local government

       The problems mentioned above can be solved easily.
       Recommendations and guidelines can be changed  into binding  standards - standards the
 local authorities has to conform to when issuing permits.
       The state  authorities can set standards for staffing in local government in order to secure,
 that a basic condition for inspection - staff -  is at hand. And state authority can set standards for
 intervals between inspection  for various types  of installations  and factories in order to secure
 enforcement of rules and regulations. Standards and binding prescriptions for enforcement can be
 made  in order to  create  uniformity.
       But doing this will be to transform local government into local agents for the state authority
 and thus abandon local  government.
       If local government is the basic policy when it comes to administration, the remedies for the
 problems described above must respect the fundamentals of local government.
       Thus a certain space of action must be left open for decisions in  local government, allowing
 for a tolerable span of differences due to local adjustments and interpretations of state laws.
       This.calls for a system of checks and balances  between local  government and state
 government - a system that secures that the national policy is fulfilled local and that local government
 has a genuine responsibility for this fulfillment and its adjustment to the conditions in the local society.

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76                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
3.2    Checks and balances between state and local government on inspection - management by
       information

       A key aspect in the process of enforcing the environmental legislation is to secure compliance
with requirements set out in the legislation and with permit conditions.
       A range of methods can be applied in performing this task, methods, that in one mixture or
another combine inspection and self-monitoring.
       The basic instrument is inspection because self-monitoring always will presuppose some
degree of inspection.
       Inspection thus becomes a fundamental activity in enforcement of all environmental legislation.
It can bee combined with self-monitoring, quality control systems etc, but all these tools presuppose
a certain degree of inspection,
       When dealing with inspection as a part of the process of enforcement it is fundamental, that
the inspections actually are carried out; that means, that the necessary resources are at hand and
that these resources are used for inspection.
       In order to check these things, the 275 Danish municipalities have since  1986 each year
returned a questionnaire to the Danish Environmental Protection Agency  about  the way the
enforcement and inspection is carried out.
       The environmental protection law provided the legal basis for this information system.
       In the questionnaire the municipality gives information about;
       »  the number of man-years used on inspection, totally subdivided on own administration
          and consultants
       •  the number of factories, farms and other objects of inspection
       •  the number of inspection visits subdivided on type of objects of inspection
       «  the number of inspected factories, farms and objects
       «  the number of  man-year used on each kind of inspection object (factories, farms
          etc.)
       •  the number of enforcement-acts (e.g. numbers of police-reports) subdivided on the
          subject of inspection.
       The questionnaire is returned to the agency together with a brief report on how the inspection
has been carried out and an evaluation of the results.
       The  report and  the questionnaire are  approved by the municipality council before it is
forwarded to the Danish  E.RA, - the municipality has to inform the public about the content of this
report on enforcement.
        The information given to the agency is publicized in both the municipal council and the local
community.  Although it  in  Denmark is a practice that reporting from local authorities to central
authorities is painstakingly carried out,  this publication gives an extra assurance, that the reports are
in  accordance with reality. Otherwise  the local opposition  in the municipal council or green
organizations in the local community will raise their voices.

3.2.1    The annual report from Danish  E.RA.

        Each year, after having received the reports from the municipalities, the statistical data are
summed up and a summary of the written reports is made in the agency.
        These results are presented in a report from the agency every year in October. This report
has in the last years been divided in two parts.

3.2.1 a  Part 1: The enforcement on national level

        The  one part deals with the overall situation in the municipalities regarding inspection and
control.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          77


       Statistics  are  presented  on how many  man-years  there  are  totally employed  in  the
municipalities for inspection. Information is given on the development in total number of objects of
inspection, in total number of inspection and the total number of inspection-visits on factories, farms
etc. - normally the results of the year are related to the results from the  last three years.
       These data are also presented interrelated - e.g. the number of factories inspected in relation
to the  total sum  of factories,  the  number of  inspection-visits related to  the  number  of
enforcement-actions and so on.
       Finally this part of the report contains a summary of the written reports form the municipalities.
This is of course difficult on a few pages to  summarize reports from 275 municipalities - therefore
certain themes are selected each year.

3.2.1 b Part 2: Enforcement in each municipality

       The other part of the report from Danish E.PA. on the municipal efforts in inspection and
enforcement deals with the way this task is carried out in each of the 275 municipalities.
       Maps are used here to give a survey over the status and trends of development in each of
the 275 municipalities.
       Different themes are selected, e.g. the number of inspected factories or farms through three
years related to the total number of these object of inspection in each municipality or the number of
inspectors related to the number of inhabitants.
       The overall reason behind this way of presentation is to create a clear picture of the state of
enforcement in all the municipalities.
       This way of presenting the data gives the  municipality's council an opportunity to compare
itself with other municipalities with regard to several themes on enforcement.
       The municipality council can see whether its efforts are on the  average, below or over and
the council can act accordingly by adjusting  its efforts.
       The publication of this report  often causes debate in the councils  - in cases of poor
enforcement compared to similar municipalities the opposition in the council often uses the report to
try to prompt the mayor to augment the effort.
       The local press has shown great interest in the report - especially if the municipalities in their
area are under the  average. This  causes debate in the local press -  a  debate that quickly involves
the politicians who are responsible for the enforcement and control. Green organizations use the
report in a similar way.
       This public debate will often cause a  adjustment of the activity in the municipality.
       Finally the Ministry of Environment uses this report to interfere when it is  disclosed that a
municipality grossly neglects its duties.
       In these cases, the ministry often will ask the municipalities in question to explain why their
performance is so bad, and to explain how they intend to make things  better.
       The ministry does  not have the  possibility  to force the municipality to engage more  staff or
to carry  out more inspection visits - this would be an infringement of local government,  but critics
form the ministry will always have a very severe impact in the political debate in the municipality.
       This system, which can bee described as management by information, has  worked very
successful in Denmark through the last five years.

3.3    Checks and balances between state and local government on use of guidelines for emission
       and imission - the  appeal system

       In environmental administration in Denmark, the decisions made by local government will
often by estimations  based on the guidelines issued from the  Danish Environmental  Protection
Agency.
       The reason why guidelines are used - in contrast to binding standards - is, that the guidelines
makes space for assessments made by local government facing an environmental problem.

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       But this system can be abused by setting conditions for factories and activities that in fact
are "environmental dumping" or is to harsh in comparison with the average conditions for the said
activity.
       In order to cope with these situations, every decision, made by local government on the basis
of guidelines, can be appealed to the Agency.
       Dealing with these appeal cases, the agency will consider whether the deviations from the
guidelines is made on the basis of sound environmental principles.
       ENDNOTES

1. For example, the counties take care of high schools, the municipalities of elementary schools; the
   county is in charge of pollution that affects more than the local area, the municipalities are in
   charge of activities that pollutes the local area.

2. This means, that the Danes are paying four kinds of taxes: state tax, county tax, municipal tax
   and church tax!                            .

3. If the restriction ,is not a permanent stop.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          79


ENVIRONMENTAL INSPECTION IN TRANSITION IN THE CZECH REPUBLIC

MEZRICKY, VACLAV

Director of the Environmental Law Institute, Faculty of Law, Charles University, nam. Curieovych 7,
110 00 Praha 1, Czech Republic


       SUMMARY

       In the Czech Republic fundamental legislative conditions for the application of an enforcement
method have been established. Legislation has especially focused on the development of the system
of environmental inspection that supervises compliance with environmental requirements. However,
it is necessary to fulfil other prerequisites to systematically implement the enforcement.


1      THE ENFORCEMENT FRAMEWORK IN THE CZECH REPUBLIC

1.1    Changes of the legislation after 1989

       The Czech Republic is one of the two succession states of the former Czechoslovak Republic
(the country was divided January 1,1993). It has 78.864 km2 and 10 million inhabitants. The country
is one of the most highly industrialized  states of the world and, at the same time, one of the  most
environmentally polluted. For example, in 1989 it  held the 10th place in  the world as far as the
exploitation of natural resources per km2 is concerned.
       Between 1989 and 1992 existing legislation was amended and new legislation was approved
regarding the protection of all sectors of the environment and concerning threats (e.g., waste) against
the environment.  Although acts are not always perfect in their systematic enforcement, it will be
possible to effect more significant changes of polluters' behavior (1).

1.2    Concept of environmental policy

       Another necessary prerequisite for the systematic enforcement of legislation has been created
by working out the first inventory of the most important kinds of pollution and risks for the  environment
(2), The first version of possible solutions for environmental problems was elaborated as well (3).
However, these documents could not  be  used for the preparation of prospective environmental
enforcement programs because they were not prepared following the appropriate method (themes,
target groups, etc., as is being used in the Dutch NEPP)(4). Nevertheless, they represent  the first
step toward prioritizing and particular programs setting.

1.3    Administrative framework

       The establishment of the Ministry of the Environment and of the system of public administration
authorities  of environmental protection in  districts and municipalities is considered as the  most
important organizational change after 1989.
       The whole system of the new environmental legislation and the system of public administration
have been developed with the aim to assure conditions for the improvement of the  state police
function for environmental protection (i.e., for systematic enforcement of environmental requirements).
Nowadays the Ministry of the Environment has the following responsibilities: protection of air, water,
soil, forests, and mineral  resources, waste management, nature conservation, and environmental
impact assessment. Up to 1992 the responsibilities for land-use planning and construction procedure

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80                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
also belonged to the Ministry. This means that the land-use planning and the environmental impact
assessment process was under the control of the same authority.
2      ENVIRONMENTAL INSPECTION

2.1    Tradition of inspection authorities

       In the 1960s the deteriorating state of the environment led to the establishment of the State
Water Management Inspection Body and later the State Technical Inspection of Air Protection Body.
The concept of inspection authorities, created at that time, significantly influenced the legislation which
had been approved in the new economic and political conditions after 1989. This development was
positively influenced  by the  fact that even at that time the task of the State Water Management
Inspection Body had been to check compliance with regulations and measures aimed at both the
economical use of water and at protection against pollution.
       Both environmental inspections bodies also had a highly professional staff that was transferred
to the new State Environmental Inspection Body established after 1989.

2.2    Integrated environmental inspection

       The Act concerning the Czech Environmental Inspection Body and Its Responsibilities in Forest
Protection from "1991  was enacted before all the principal acts concerning the protection of particular
environmental sectors. The Act only created an organizational framework for  various kinds of
inspection, the responsibilities of which are specified by  the above  mentioned acts.  It explains
differences in.the,extent of. authorities  and their diversity.  Nevertheless,  the establishment of the
integrated  Inspection  Body represents a good  starting  point for systematic  and coordinated
application of the enforcement methods.         ;
       According to the Act, the Inspection Body is the public administration authority executing the
state supervision in environmental protection issues. It is an independent budgetary organization. In
all legal relations it acts on its own behalf and responsibility.  The Inspection Body is managed by the
Director,  who is appointed, recalled, and directly controlled  by the Minister of the Environment.
       The Inspection Body  is divided into the Directory and nine regional Inspectorates. The  number
of Inspectorates is sufficient with regard to the area of the country and to the extent of environmental
problems. The Directory has five professional sections which focus on the five protected sectors of
the environment; the regional Inspectorates operate within the same system.
       The responsibilities of the Inspection Body are narrower than those of the Ministry. They cover
only the  protection of air, water, and forest, nature conservation, and waste management. According
to ttie acts on the protection of particular sectors of the environment and  on the protection against
environmental risks, the Inspection Body:
       » Supervises compliance with legislation and with decisions of public administration
         authorities in environmental protection.
       » Monitors (acknowledges) non-compliance  and  environmental  damage  and  its
         causes.
       • Imposes measures to remove non-compliance and to restore compliance (e.g., In
         the case of  impending damage, it has the right to ban the production or other
          activities).
       » Ensures compliance with the imposed measures.
       • Imposes fines  for the  violation of legal duties upon both legal and physical
          persons,

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 THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          81
        Although in the past the inspection authorities themselves did not impose fines, in the new
 legislation this responsibility has appeared. Including this responsibility among those of the Inspection
 Body is controversial because the Inspection Body has both the responsibility of discovering and
 monitoring violators and the exclusive authority to judge and penalize them. Although other bodies
 exist which could take enforcement action against violators, they do not have the jurisdiction.
        Also  other responsibilities of the Inspection are not in accordance with its character of the
 supervising authority. Under the Clean Air Act, for example, the Inspection Body grants both permits
 regarding the location of air polluting sources and decides on fees for air pollution; according to the
 Waste Act, the Inspection imposes charges for waste depositing upon operators of landfills,  etc.
        From the point of view of enforcement development, there are some positive provisions which
 oblige the Inspection Body to collaborate not only with departments of the Ministry of the Environment
 but also with district  authorities  and local governments, and with the State Prosecutor. Detailed
 specification of this collaboration is laid down by the Acts concerning the protection of  particular
' environmental sectors.
        As the Inspection Body gathers information about insufficiencies and gaps in the legislation,
 it has a duty to initiate its changes. It also comments on proposed changes of acts submitted to it.
 In this way it may participate in formulation of environmental requirements.

 2.3    Previous activity

        The  Inspection Body has been in existence and active  for the third year in its new form.
 Including the current supervision activity, it also carries out systematic and comprehensive checkup
 of compliance with legislation. For the moment, it is focused on smaller areas and particular issues.
        In the year 1992, water and forest protection and waste management in the area of the largest
 drinking-water basin supplying the capital were checked.
        In the same year an inspection was made of the National Park Sumava, which is the largest
 National Park in Central  Europe (1.630 km2 including the  landscape protected  area).  This check
 monitored damage caused by military bases (cancelled in 1991). The check also monitored damage
 done to water sources and waste  management practices of municipalities, farms, industries, and
 leisure facilities.
        Systematic attention is paid to accidental water pollution.
         In 1993 the Inspection Body made a systematic check of waste imports. It particularly focused
 on the accordance of imported waste with the conditions imposed by the Ministry of the Environment.
 In this inspection process the management of imported waste and the waste of the domestic origin
 was checked. Compliance with other environmental regulations was also checked.
        The following table demonstrates decision-making activities of the  Inspection Body (in USD).


                                                      1992          1993 (first half-year)

         Imposed fines                                  2,25 mil.      0,96 mil.
         Imposed fees (Clean Air Act, Waste Act)             51,78 mil.     34,09 mil.
         Number of investigated accidents (water pollution)     500           120
 2.4    Necessary changes of legislation

        In order that the Inspection Body fulfills its functions in the enforcement framework, it will be
 necessary to make the following legislative changes of its responsibilities:
        •  To transfer imposing  fines to  public  administration authorities or to the local
           governments.

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82                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         To transfer other decision-making responsibilities of the Inspection Body, especially
         in the field of air pollution, to the Ministry of the Environment, to district authorities,
         and to local governments.
         To define  responsibilities and to  impose duties by promoting compliance (by
         providing consultations, organizing training, technical assistance, etc.).
       CONCLUSION: CHANGES IN ENVIRONMENTAL POLICY DEVELOPMENT

       The development  of the systematic environmental policy  in the period of the economic
transformation is  difficult.  Production programs  of enterprises, their organization,  and property
relationships are changing. Nevertheless, the existing legal and institutional framework enables the
gradual development of enforcement in sectors with prerequisites for it (typically energy, toxic waste
management, etc.). The Inspection aione cannot be a responsible body for enforcement programs.
The Ministry of the Environment and its territorial departments must coordinate such programs, It is
apparent that the necessary conditions for such environmental policy have been established.
       REFERENCES

1. Kruzikova, E., Some Factors Influencing Environmental Enforcement in the CSFR, International
   Conference on Environmental Enforcement, Sept. 22-25,1992, Budapest, Hungary, Vol. 2, pp. 37,
   38.
2rEnvironment of the Czech Republic ("Blue  Book"), Ministry of the Environment of  the Czech
   Republic, Prague, 1990. Parts Mil,

3. The Program of Restoring Environment of the Czech Republic ("The Rainbow Book"), Academia
   Praha, Ministry of the Environment of the Czech Republic, 1991.

4. National Environmental  Policy Plan (NEPP), Second Chamber of the States General, Session
   1988-1989, 21137, ms. 1-2, The Hague, The Netherlands.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         83
HUNGARIAN ENVIRONMENTAL PROTECTION LICENSING AND
ENFORCEMENT PROCEDURES

REINIGER, ROBEFIT

Head of the National Authority for the Environment, Fo Utca 44-50, Alkotmany u. 29, H-1011
Budapest, Hungary
       SUMMARY

       Besides being the owners, the state operated its properties as repositories of power at the
time the laws concerning environmental protection (II. Law of 1976) went into force.
       Economic policy was not environmentally friendly, although it was declared as such on paper.
Legal measures did not work as part of the market economy and did not even force the entrepreneurs
to think over the environmental consequences of their production.
       Fining was a dominant part of environmental protection regulations as the participants of the
economy had to be kept under the pressure of threatening sanctioning.  Until recently the state's
company stood against  the state's authority; therefore, sanctioning  often had to be or could  be
ignored,
       The situation has changed by now, and the state's authority stands against the transforming
companies and the new owners of transformed companies. The direct intervention in the authority's
work has stopped.
       Subsequent  to the social and economic changes, privatization is the basis of ownership
changes, and it is clear that the elimination of environmental damages can only be done and managed
at the time of ownership changes.
       Clear sight is made more difficult since the terminated, transforming, and newly established
companies and their activities concerning environmental protection can be hardly traced even with
the  greatest effort.  Therefore, the efficiency of controls Is deteriorating, with the possibility of
eliminating damage decreasing or falling on the state.  The low standard of morale in the economy
and individual interests coming to the front voluntarily make adherence to the law less significant.
       Freedom of enterprise brings up a new type of problem; namely, that the entrepreneur builds
on short-term conception and tries to render environmental aspects  secondary again.  Our valid legal
material, which can still be considered based on social principles, must be applied to the economy
of private ownership and to actions of entrepreneurs.
       A very strong environmental protection authority is necessary for the transformation,  to which
the governmental department has  made the necessary initial steps,  The environmental protection
section must get a more important role in the distribution of labour of governmental duties.
       In order that the organizations of  environmental  protection authority work according to
expectations, they must be:
       •  Predictable.
       •  Consistent.
       •  ApprqDriately strict.
       •  Unanimous in the judgement of the same behaviour of environmental exploitation
          and technology. This can be achieved  only by  providing  the  intellectual and
          financial resources in the ratio of tasks.

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84                           THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
1      INTRODUCTION

       This report  of the actions of the environmental protection authority intends to give a
comprehensive view of the activities that will sooner or later hopefully contribute to the improvement
of the environment's condition in Hungary.
       Here  we describe the  development of  the  operating system,  its legal, financial, and
technological implements, and the experiences of the operation.
       We present the condition we aim at and we consider desirable, and we sketch the possible
ways for its achievement.
       We are also trying to show our official activities with some factual data and characteristic
examples.  The discussion is supplemented with tables and figures attached in the Appendices.
       We try to throw  light on the struggle of the environmental authority for meeting the ever
increasing expectations of the society and on the other hand with the restricting regulations.
2      THE DEVELOPMENT AND AUTHORITY OF THE ORGANIZATION

       The establishment of the environmental protection authority can be separated into three
distinguished steps.
       »  The legal predecessor of the present environmental protection authority was on the
          one hand established within the water management organization that had century
          old traditions, and on the  other hand in  the National  Environment and  Nature
          Conservation Office that was established inthe1970's.
       «  The two organizations,  which differed completely both in their traditions and legal
          regulations, united in  1988 and  the KOVIZIG  (K6rnyezetv6delmi 6s  VfzOgyi
          Igazgatosagok;  Environmental  Protection  and  Water Management Authorities)
          organizations were founded.
       «  The separation of these on 1st  December in 1990  brought on  the  present
          organization system that carries out duties concerning  environmental protection,
          and the Environmental Protection Supervisory Board and 12 regional environmental
          protection boards were established.

       This way, even according to the foreign experts, one of Europe's most up-to-date special
administration department was created in Hungary.
       The Environmental Protection Supervisory Board is an administrative body of national authority.
It  is an independent  legal entity under the direction of the Minister of Environmental  Protection and
Regional Development.
       The Environmental Protection Supervisory Board exercises authority (special administration
authority) of  the second instance in the administration of environmental protection and  nature
conservation  (in two types of environmental protection issues it has the first instance authority). It
provides the Minister with data, which accumulated during the activities of the Board for the fulfilment
of governmental duties; analyses and evaluates the implementation of regulations; directs the official
activities of the  regional  organizations of environmental protection administration, the execution of
duties concerning the elimination of damage, and performs the role  of legal representation.
       Regional.duties  sire  performed by 12 regional environmental  protection boards  organized
according to catchment areas.
       These boards are independent legal entities—publicly financed administrative organizations
with independent wage management. They perform the administrative and official duties concerning
clean air protection, water quality and quantity protection, and the actions against dangerous effects
of waste materials, noise, and vibration in their region.
       Since the summer of 1993 environmental protection licenses are issued on the basis of impact
studies.   TTiey  also observe and analyze the region's environmental  condition and its protection;

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          85
forecast probable, considerable impacts on the environment; and provide concerning data.  They
operate the information and monitoring system, conduct the regional and technical coordination of
tasks requiring more than one office's coordinated participation, and conduct laboratory investigation
concerning the administrative duties and the prevention and elimination of damage caused to the
environment.   Moreover, they prepare the evaluation of environmental developments, investments,
and grant applications, and the reports on environmental protection auditing.
       The above described sphere of duties of this system does not include the entire scope of
environmental protection. The local governments, medical officer service, the plant and soil protection
service, and the office of transportation also perform duties of environmental protection in divided
authority.  Due to the divided authority there are overlaps, and  uncoordinated work is quite typical.
3      CONDITIONS FOR OPERATION

3.1    Legal framework for the operation

       Article 49 point (1) of the law concerning the protection of the human environment provides
that the  performance of sectional  and official duties of environmental  protection fails under the
jurisdiction of administrative organizations stipulated in separate regulations.
       According to the  provision of the aforementioned  law, the Government established the
Environmental Protection Supervisory Board in the 43/1990. (IX.15) decree.
       Under the authorization of  the Government, the Minister of Environmental Protection and
Regional Development provided the establishment of the environmental protection boards in the
1/1990. (XI. 13.) KTM decree.
       In the Appendix of the 1/1990. (XI.13.) KTM decree those prevailing laws that stipulate the
jurisdiction of the boards are listed. These and other laws that came into effect since form the  legal
framework of the operation. (See Appendix 1.)
       These laws are not the permitting types,  but  assume  the voluntary observance of and
adherence to the law.   Therefore these  are considered indirect implements,  and hardly meet the
modern preventive principles.

3.2    Personnel conditions of operation

       The staff number of the Environmental Protection Supervisory Board is 27 persons, and the
staff number of the 12 regional boards is 1,150 persons. Each regional board operates an official
department with lawyers, a professional  office with  experts in every field concerning environmental
protection, a laboratory, and administrative and service departments. More than half of the staff are
professionals with several  diplomas.

3.3    Technical conditions for operation

       The Hungarian Republic provides the major  part of financing to the boards (more than  90%,
the remaining part comes from the boards' own revenue).
       The full amount needed for carrying out the official duties is not at the disposal of the boards.
Regarding the budget deficit that exceeds 300 billion HUF (3 billion USD), a quick improvement of
the situation is  not probable.
       The most urgent task, besides equipment development,  is to accredit a laboratory to  each
environmental protection board. The first step to this was the regulation of sewage and sewage-sludge
investigation  procedures.

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86                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4      THE RESULTS AND EXPERIENCES OF OPERATION SO FAR

       The duties of the boards consist basically of two parts:
       » Official  activities, which  cover  licensing, supervision,  imposing sanctions, the
         operation and  evaluation of the monitoring  system, the  direction  of damage
         elimination.
       • Tasks  concerning the  entire  scope  of environmental  protection  (e.g., the
         observation  of the environment's condition, establishment and evaluation  of
         tendencies, forecasts of probable environmental impacts, provision of information
         concerning these, reporting on regulations).

4.1    The boards' duties in the special fields

4.1.1   Water protection

       Besides the investigation of sewage discharge into the surface and subsurface waters, the
environmental protection boards continuously observe the  original condition of surface and
subsurface waters in order to measure and determine the effects and extent of changes of intervention
during the official activities.                                        -
       Sampling of the discharge and  laboratory examination are always part of the official controls.
The results are not only suitable for the determination of pollutant load discharged in the environment,
but also for the judgement of the efficiency of sewage purification. Self-control measurements, made
by the companies for years, complement  the information for the official inspection.  Fines for those
discharging over the limit are determined  on these measurements.
       The decree stipulating the  sewage fine, on the other hand, is out of date, since the sum of
imposed fines has no deterring effect. The fines that were determined  according to the 3/1984. (II.7.)
OVH decree of 1982-1983 prices are quite low. The fines have doubled since 1st January 1994, but
their effect will appear only on fines imposed in 1995.

4,1.2  Soil protection

       The soil is the only one among the elements that should be protected which is covered by
no environmental protection regulation. Soil pollutants are not specified, and no discharge limits are
determined  for them. The Supervisory Board  initiated  the  amendment of the law when the law
concerning the land was modified.
       The need for regulations concerning soil protection and the permitted pollutant concentration
limit in the soil firmly appear in practice (e.g., in connection with the cleaning of the former Soviet
army barracks, and spills of other dangerous waste and materials). To overcome this problem, in the
case of the former Soviet army barracks,  the Supervisory Board issued temporary guidelines to the
boards based on the Dutch regulations.

4.1.3  Clean air protection

       The  sphere of duties concerning  clean air protection is divided  among three departments
(environmental protection, public welfare,  and transportation) and the local governments. Actions of
the environmental protection boards only  extend to the determination of emission limits, the checks
on self-declarations, and imposition of fines according to the ruling concerning clean air protection
(21/1986. FVI.2.] MT decree).
       It would be important if we could control everyone emitting pollutants with instrumental
investigation along with their self-declaration.  The conditions for this are not available at the moment;
thus, a large part of the decisions and fine-imposing resolutions are based on self-declarattons.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                           87
       The present unmanageable situation would be temporarily improved if uniform data bases
were established at the boards that were available for everyone.

4.1.4   Protection from noise and vibration

       Duties in connection with protection from noise and vibration were also distributed among
three departments (environmental protection, public welfare, and transportation) and  the  local
governments.
       Since the 12/1984. (V12.) MT decree was put into force, actions concerning noise protection
were conducted at the environmental protection boards on a good professional basis, which gradually
developed.
       The absence of good conditions  for efficient work, on the other hand, is  preventing  such
actions as the recording of all noise resources, preparation of a noise map, and the amendment of
regional and  community development plans with a noise protection section. A procedure at present
is typically started  after the filing of a complaint.

4.1.5  Protection against the harmful effects of waste

       This field causes the greatest tension at the boards and with the clients as well.  Meanwhile,
here is the society's greatest contradiction between expectations and patience.
       The 56/1981. (XI.18) MT decree which was modified on several occasions, the most recently
by the 27/1992.  (I.30.) governmental decree, is rather out-of-date legal material. The individual official
decisions, therefore, are quite varied. This is supported also  by the fact that most of our decisions
questioned before a court are concerned with dangerous waste material.
       The  environmental protection authorities  have licensing authority concerning dangerous
waste, although the society's expectations include other production waste and the waste materials
of the communities.
       The conditions for  transporting waste material within the country  and over the border are
unsettled. Due  to  the lack of regulation, we cannot stop the mass inflow of products and equipment
that can be applied for proper use for a short period of.time  but become waste soon.	
       Priority in our actions against the harmful effects of waste must be given to prevention. The
adoption  of waste-sparing technologies,  recycle of  produced waste material, the producers'
responsibility concerning the further course of the generated  waste material, its minimalization, and
the enforcement of a regional approach must be supported for the achievement of this  goal. The
present legal background is contradictory to the preventive approach.

4.2    Conducting environmental protection measurements

       The boards carry out three different types of measuring tasks:
       •  Measurements to substantiate official decisions.
       •  Measurements  and   evaluation  of data  that help  the  observation  of  the
           environment's condition in the boards' jurisdictions.
       •  Measurements to back up the classification and extent of extraordinary pollution
           and the  estimation of the necessary extent for the elimination of damage.
       The environmental protection measuring network examines usually 4,500 national, 5,000 local
surface,  and 1,700 subsurface water samples. In addition, 700 soil and waste samples,  2,000 to
3,000 extraordinary pollution samples, and 5,100 sewage samples are examined The  number of
sampling points for clean air protection is more than 600.
       We believe that  many more  examinations would be necessary for well-founded official
decisions and for the maintenance of the environment at a higher quality level. This capacity can be
achieved with either extensive or intensive development.

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 88                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 4,3     Extraordinary pollution and damage elimination

        About 3,000 occasions of extraordinary pollution are reported to the boards in a year in
 Hungary.  These reports calf for immediate actions regarding the possible damage to the environment.
        Water, air, and soil pollution are all found in these extraordinary events. The causes of pollution
 are various, too (industrial discharge, inappropriate storage of waste, accidents), but anomalies also
 occur due to weather conditions (a low water level makes the water quality deteriorate, and pollutants
 get washed  in),  Pollution is increasing in connection with road transportation (fuel transportation,
 etc.)  and pollution related to economic crimes has also occurred (household fuel turned into diesel
 oil, unlicensed waste import).
        These cases do not only mean extra and unexpected tasks for the boards, but they have
 considerable publicity because of society's sensitivity.   Therefore,  they  carry great importance in
 environmental  policy.  The entire work concerning environmental protection is concluded from our
 activities in connection with these events.
        The boards do not have authority over an independent damage elimination apparatus, nor is
 its establishment planned.  The necessary staff for damage elimination is  borrowed from the partner
 organizations (water management, fire department, civil defence, entrepreneurs) according to the
 given task.   The coordination  of the elimination  of damage and  its  environmental protection
 classification are the boards' responsibility.
        Every board office possesses a cellular telephone for the coordination of damage elimination
 and performance of duty. Managers and employees are on call for  24 hours a day. About 0.5 to 3
 hours are necessary for the operation of the system from the time of observation.
        Those  who cause damage are more often unable to eliminate or finance  the elimination of
 damage; therefore, the whole  cost of elimination is borne by the government  There are more and
 more discovered waste deposits and irresponsible  entrepreneurs without legal successors to fulfil
 their irresponsibilities.
        Considering all the above, the creation  of a  central fund,  in which payment would  be
 compulsory  according to production value and environmental risk is imperative. The fund could be
 used according to a previously established order of national priority and the reported pollution's
 impact on the environment,

 4.4    Administrative duties involving several special branches

        In addition to the evaluation of  the  environment's  condition,  development, investment,
 privatization, as well as the enforcement of environmental interest in bankruptcy procedures and
 liquidations are all the concerns of every branch.
        The  regulation of environmental impact studies, issued in June 1993, is a tool in the hands
 of legal executives with which they are able to ensure the implementation of environmental protection
 requirements in the various stages of investment and development.  Its application, however, would
. be even more efficient if the rule, allowed the start of actions professionally  and ensured the necessary
 sanctions.
        The  goal of environmental auditing prior to privatization or transformation is to establish the
 financial and personnel conditions for the handling of environmental damages.
        The  content requirements of the submitted documents during auditing and the methods of
 handling environmental damages are not specified by regulations.  Their lack could be temporarily
 and  partly addressed by a rescript of the Supervisory Board.  Almost 300  ministerial statements were
 made  this way.

 4,5    The  domestic and foreign relationships of the environmental protection authority

        The operative official  organization's most important  connection Is the  Ministry  for
 Environmental Protection and  Regional Development, which provides supervision over it.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          89
       The direction system has recently stabilized. It is very clear that the Ministry cannot exclude
the accumulated data and expert knowledge of the boards' for its task to perform the legislative and
evaluation duties of the environment's condition.  The appropriate forums have been established for
that.
       The international relationships of the Supervisory Board and the regional boards are restricted
to cooperation among the authorities (Basel Convention, Agreement on Border Waters).
       In addition to the legal obligations (with the VIZIG, ANTSZ, local governments) we have made
agreements with the fire  department and water managing organizations so that we can make our
work more effective.  There are partial agreements with the police and  civil defence forces. Their
extention to full-range agreements are under preparation.  We  also plan to settle the cooperation
relationship with the National Headquarters of Customs, which is now occasional and  not effective.

4.6    Results and some typical problems

       In Section  4 in which we summarized  our experiences so far,  we made some general
statements about the operation of the special fields. These will serve the preparation of a considerable
improvement of our work's quality and efficiency.  In this section we list some summarizing and
explanatory figures, and show some typical problems.
       Water protection:  The  boards gave the opinion of the special departments for issue of 3,800
different water licenses in connection with the protection of the quality and quantity of waters. The
sum of imposed sewage fines is 280 to  320 million HUF, which is based on almost 500 decisions.
Seven thousand cases of investigations and 20,000 measurements were completed for that. The
typical problem of water  protection is that the protection of the long-range water bases is unsolved
because of the confusion in ownership relations. Water quality regulation in the protection of surface
waters that is based on loading capacity and considers special  surface features is missing.
       Clean air protection: The number of fined companies was 600 to 700 in 1993,  compared to
1,000 to 1,200 fined companies in 1991 to 1992. The sum of imposed fines decreased at the same
ratio. This is only partly due to the decrease in production with its associated decrease in emission.
The other reason is the unsettled regulations.
       .TJie_unlOTQwj3jafiender.s.. who.burn .waste in.open.areas present.a great problem. Sanctions
against them can only be inflicted if the offender who burnt waste without a permit is known and his
intentions proved.   In four cases of fire  last year we could not take any measures. To prevent the
occurrence  of further such cases the Supervisory Board  initiated the modification of the relevant
regulations. According to the modification, the owner of the waste would be always held responsible
for the burning of the waste.
        Noise and vibration  protection: The number of complaints stand at about 300 to 500 per year.
The most frequent sources of complaints are the noises from  small businesses operating around
housing estates, road transportation, and lately the noise caused by the motors of hang-gliders and
helicopters. According to our measurements, the noise level is 10 to 15 dB  over the limit day and
night along major roads crossing towns.  Therefore, the boards appear firmly when  plans of new
tracks are judged.
        Dangerous waste: The boards bring an ever-increasing number of decisions (900 to 1,000).
Within this, the number of fines and the sum of imposed fines is constant (190 cases, 200 million
HUF). The number of checks is appropriate for the number of staff (though it does not reach the
desirable level). The most serious problems are the importation of waste, which increased beyond
the point of manageability; used car  tires and junk car wrecks; the  citizens' movements against
neutralizing capacities; and the discovered illegal waste deposits.

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90                           THifiD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
5      THE OUTSIDE OPINION OF OFFICIAL WORK

5.1    Administrative procedures

       One of the major reasons for establishing the Supervisory Board was that a well-prepared
official organization would bear responsibility over the consequences of its decisions before a court.
       The XXVI law of 1991 allows the contesting of administrative decisions before a court. So far,
86 decisions of the  Supervisory Board have been challenged in a court (55 of which dealt with
dangerous waste).
       Forty-two lawsuits were won, forty are pending, and four cases were lost. These figures qualify
our professional work.
       The sum of imposed fines in the contested decisions was  close to 425 million HUF (from
which 332 million HUF was charged for dangerous waste).
       The following lessons can be learned from the administrative procedures:
       »  Clients bring an action against the judgement of the appeals court, especially if it
          includes a fine, if it is not unlawful, because the procedure has a postooning effect.
       •  The charge for an administrative procedure is low (6,000 HUF), which encourages
          the client to bring a lawsuit instead of paying the fine.
       »  The administrative procedures are not fully developed yet.
       •  A major portion of the contested       concerned dangerous waste.

       Thus we find it important to establish a uniform legal system  concerning environmental
protection (of which the modification of regulations concerning dangerous waste is the most urgent);
.meanwhile, the possibility of the implementation of decisions independently from a court procedure
must be re-examined.

5.2   Prosecutor's investigations

       The official work of the Supervisory Board and regional boards is constantly under the
supervision of the Supreme  Prosecutor's Office in the framework of a comprehensive inspection
program.
       Tasks concerning the protection of water quality and quantity were analysed in the second
half of 1992.  In regards to the merits of the case, the Supreme Prosecutor did not make any statement
and the practice of law application was praised. On the basis of the prosecutor's investigation, the
Supreme Prosecutor initiated the modification of regulations.
       Our actions regarding dangerous waste were under inspection in the first half of 1993.  A
protest was submitted on only one occasion as the result of an inspection, not against the merits of
the case but concerning matters of form.  The Supreme Prosecutor stated that the  work of the
.Supervisory  Board and regional  boards is typically legal. On the basis of the investigation, the
Supreme  Prosecutor again advocated the urgent modification  of regulations with regards  to
dangerous waste,
       On the basis of She very tight control of the judges and  prosecutors, it can be stated that
aside from the typical mistakes of the existing legal cases, the boards make every possible effort to
resolve any issues, with the exclusion of cases that concern breaking the law.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          91

Appendix 1.
Original jurisdiction of the environmental protection boards:
 1. Compel the producer to submit an application concerning the classification of a newly defined
    waste,
 2. Grant exemption from under the obligation of making a material balance with regards to activities
    in connection with dangerous waste materials.
 3. Permit the construction of a simplifisd material balance.
 4, Grant exemption from the prohibition of mixing water with dangerous waste material, which was
    not generated in an aqueous medium.
 5, Permit the treatment of dangerous waste material in the existing equipment or establishment.
 6. Give authorization for the receipt of dangerous waste for its treatment,
 7, Give prior consent to  the establishment of a dump for  dangerous waste or the installation of
    equipment for the neutralization of dangerous waste materiais.
 8. Specify the method of storage of dangerous waste that is different from the  provisions of the law
    in the storage area of a plant.
 9. Permit the place, time,  method, and conditions for the treatment of dangerous waste,
 10. Compel the producer to make  proper use of his existing equipment and establishments.
 11. Compel the  producer to  use  appropriate treatment of the existing dangerous waste in his
    possession, its report, and keeping the record up to date.
 12. Order the restriction of activities creating dangerous waste and the suspension of the operation
    of premises,  factories, factory units or machines.
 13. Order the termination of activities on the spot in case of direct and severe risk of pollution of the
    environment due to dangerous waste.
 14. Overrule restrictions concerning dangerous waste before the complete elimination of malpractice.
 15. Stipulate the necessary actions for the prevention of environmental pollution in the case of an
    operation breakdown or other extraordinary event.
 16. Order the handover of dangerous waste to those who possess an appropriate storage place and
    the neutralizing equipment for  its treatment.
 17. Compel the  producer  to provide treatment or temporary  storage of soil polluted during his
    activities.
 18. Compel the producer to pay dangerous-waste fines.
 19. Issue previous licenses for the import of waste.
 20. Impose fines for unlicensed importing of waste material or for the importing or usage different
    from that specified in  the license.
 21. Order the reestablishment of the original situation, or the neutralization or usage of waste material
    in the case of unlicensed importing.
 22. Have • a professional  investigation conducted in the case of unlicensed importing  of waste
    materials.
 23. Specify a limit of noise output when  a new plant that's not providing service is established or
    when an old one is renovated,  expanded, modernized, or.in the case of major construction work.

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92                           THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
24, Stipulate the application of instruments that decrease noise and vibration in cases of new road,
    railway, or civil airport construction, or in case the traffic relations considerably and permanently
    change due to renovation and modernization,

25. Specify noise limits for existing establishments that are not servicing enterprises,

26, Establish new noise limits in cases of reported change in noise output after the specification of
    noise limits has been determined in establishments that are not servicing enterprises.

27, Suspend or restrict those activities of the establishment not servicing enterprises which produce
    dangerous levels of noise and vibration,

28, Compel the payment of noise and vibration fines in the case of companies not providing service
    activities.

29. Specify emission limits for new establishments that do not provide service and  which cause air
    pollution.

30. Specify an emission  limit in the case of change of technology of a localized establishment that
    does not provide service and which causes air pollution,
31. Specify an emission limit which is  lower  than the regional emission limit of a localized
    establishment that does not provide service and which causes air pollution (special limit).

32. Specify an emission limit of an operating, localized establishment that does not provide a service
    and which causes air pollution.                        	
33. Compel the operator of an operating, localized establishment that does not provide service and
    which causes air pollution to install an extractor air cleaner device,
34. Specify a limit that is lower than the regional limit for an operating,  localized establishment that
    does not provide service and which causes dangerous air pollution.
35, Compel the operator of an operating, localized establishment that does not provide service and
    which causes dangerous air pollution to modernize the technology or to take other measures,

36. Compel the legal person or organization not  possessing legal personalty or  the private
    entrepreneur operating a localized establishment that does not provide service and which causes
    dangerous air pollution to pay an air pollution fine.

37, Permit,  with the exception of waste of plant origin or derived from agricultural production, the
    burning of waste in the open air.

38. Permit,  with the exception of waste of plant origin or derived from agricultural production, the
    burning of waste in traditional power generating equipment.

39. Permit the provision  of data with contents different from that stipulated in the law for operating
    localized establishments that do not provide service and which cause air pollution.

40. Specify, by special state resolution, the storage possibilities and conditions of sewage for sewage
    dischargers, in the cases in which the sewage storage does not belong in another authority's
    jurisdiction.

41, Alter, suspend,  and  cancel  licenses stipulating the conditions of sewage placing  that do not
    belong under the jurisdiction of other authorities.

42. Compel the termination of the cause of damage when water is dangerously polluted.

43, Restrict or prohibit the activities that cause the discharge of dangerous materials which pose a
    risk to or can infect and severely pollute waters.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          93
44. The operation of the company is suspended until the water infection or severe pollution is stopped
    or the risk of its occurrence is stopped,
45, Specify, modify, and cancel special discharge limits on sewage in living water.
46. Compel the payment of sewage fines.
47. Stipulate the submission of a detailed environmental impact study on the basis of a preliminary
    impact study, and specify the issues and requirements needed for the preparation of the study.
48, Issue environmentar protection licenses on the basis of the preliminary impact study.
49. Reject  the application for an environmental protection license on the basis  of the preliminary
    impact study.
50. Issue environmental protection licenses on the basis of the detailed impact study.
51. Reject  applications for environmental protection licenses on the basis of the detailed  impact
    study.
52. Compel the payment of fines in the case of the application of materials that  destroy the ozone
    layer and are unlicensed according to the 13/1992. (V12.) KTM decree.
53. Compel the termination  of activities using materials that destroy  the ozone layer and are
    unlicensed according to the 13/1992. (V.12.) KTM decree.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         In thousands
             1991
    1992.       1. half of 1993  1993. (probable)
              Year
                 water
      waste
air
noise, vibration
 Appendix 2. The number of cases at the environmental protection boards.
         In thousands
            1991
    1992.       1. half of 1993 1993. (probable)
             Year
                 water
     waste
air
noise, vibration
 Appendix 3.  The number of Issued decisions at the environmental protection boards.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                  95
            Million HUF
               1991.
1992,       1, half of 1993 1993. (probable)
          Year
                  water
 waste
air
noise, vibration
Appendix 4.  Figures of imposed fines at the environmental protection boards.
 Appendix 5.  Summary of Litigious Matters at the Environmental Protection Boards
Number of
Rnal Cases

Sewage
Dangerous Waste
Air
Noise, Vibration
Nature, Conservation
Others
TOTAL
Number of
Cases
10
55
1
13
6
1
86
Sum (HUF) Won
73708648 8
331797000 25
6378000
10834548 8
640000 1

423358196 42
Number of
Lost Pending Cases
1 1
2 28
1
1 4
5
1
4 40

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          97


LEGISLATIVE CHANGES FOR IMPROVED COMPLIANCE AND ENFORCEMENT:
THE CASE OF BULGARIA

MASLARQVA, LILIANA

Legal Department, Bulgarian Ministry of Environment, 67 William Gladstone Street, 1000 Sofia, Bulgaria


       SUMMARY

       A general  review of Bulgarian environmental legislation from  the initial instruments to  the
present is given. An attempt is made to explain the low or non-existent enforcement. A brief evaluation
of adopted legislation is given with  the main reasons—of a political,  economic, and legal
nature—behind the low or non-existent compliance and enforcement
       With the political developments during the last four years, there has been a radical revision
of Bulgaria's environmental policy and the necessary legislative changes to achieve it. A short review
is provided of the basic new principles and requirements in the adopted legislation in conformity with
modern environmental protection. The two years of practica! implementation of the new legislation
have shown that,  despite the desire, little progress  has been achieved towards better compliance
and enforcement.  An attempt is made to explain the reasons behind this result and the difficulties in
overcoming them.
       Improved compliance and enforcement will continue to be a serious problem if the necessary
prerequisites of a  political,  economic, and legal nature continue to be lacking, thus making effective
enforcement an extremely difficult, painful, and slow process.


1      THE NATURE OF BULGARIAN ENVIRONMENTAL LEGISLATION IN THE PAST

       The existing body of environmental legislation in Bulgaria dates back to the sixties. Two basic
laws, the Law for the Protection of the Air, Water and Soil from Pollution (1963) and the  Law for  the
Protection of Nature (1967)rtogether with numerous regulations for their tmpiementationrformed  the
core around which environmental protection was carried out. The most characteristic feature of  the
whole body of environmental legislation  in the past  was its declaratory nature and the almost total
lack of effective enforcement tools  both  in the legislative provisions themselves and in special
enforcement programmes which did not exist. Both  ideological and purely legal reasons lay behind
this reality.
       Communist doctrine considered man the "master of nature"; being the most evolved and only
creature endowed with intellect he held a position of "supremacy" over all other creatures;  he could
tamper with natural processes if he thought necessary and change natural phenomena to his own
liking. Environmental  protection gained little from the Ideological postulate that polluters exist onty in
the framework of a capitalist economy while in socialist conditions all was done 'in the name of man
and for  his benefit" without any negative environmental impact whatsoever.  These  ideological
presumptions  led to the conviction that environmental protection was "self-executing" in  socialist
conditions; that the socialist economy did not pollute; that any environmental pollution of the different
media in fact was only of transboundary character due to capitalist industry Therefore,  all the adopted
legislation at the time aimed simply to stress these dogmas and obviously any effective enforcement
tools would have seemed superfluous.
       In no way was the situation improved by the fact that for almost half a century law did  not
execute its inherent regulative functions since the real regulation of social relations lay beyond law.
Nor did any real or well-defined division of powers exist between the legislature, the executive, and
the judiciary. Over all the existing powers in the State stood the Communist party, which determined
and controlled everything  in society, including the formulation of policy, the running of the economy,

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98                         ' THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
culture,  and education, and the personal everyday life of every citizen. Nor could any significant
enforcement be contemplated within the conditions of a centrally planned economy where there was
no private property and the State was both the owner of all industrial facilities as well as the regulating
and enforcing agency. In the rare cases when some enforcement of environmental requirements did
take place, since there was provision for both administrative, civil, and criminal liability, it was simply
a case of taking an insignificant sum from one State "pocket" and placing it in another. Civil suits
were practically non-existent both because of the lack of strict liability (ie, the precondition of intentional
or negligent conduct) as well as because  of the fact that any individual who contemplated a suit
against  the State or concrete state enterprises had little real chance of success.
       Very much the same reasons  lay behind the almost total lack of  criminal enforcement.
Managers of industrial facilities were in their majority "nomenclature" personnel. If any environmental
criminal offence  was committed  while running economic activities, the  liability was  seldom
criminal—the person who committed it simply was moved to another post. This to a very great extent
explains why despite the existence of environmental crimes in the penal code, hardly any case has
been filed and prosecuted.
       To make the picture of past environmental enforcement complete: There was a total lack of
accurate or credible public information on the state of the environment as well as of any  relevant
public participation in environmental decision-making and  control, although different tools ensuring
participation in "socialist democracy" did exist—at least in  legislation—but hardly anyone took them
seriously or expected such participation to  give any significant practical results.
 2     THE RECENT LEGISLATIVE CHANGES

       With the political changes of the past several years and the transition to democracy and a
 market economy, things are beginning to change  very slowly. For the first time in decades it was
 publically admitted that the environment is in a state of catastrophe. The revealed information on the
 state of the environment showed that all environmental media are heavily polluted, creating serious
 health hazards and natural degradation.                                    .         -      .  .
       A radically new environmental policy was formulated with three main tasks for the transitionary
 period reflected in the adopted Environmental Strategy: preservation of the part of the environment
 which has not been severely damaged; decrease of pollution of all media; clean-up and elimination
 of the caused environmental damages. For the practical achievement of the new policy, environmental
 legislation is to play a priority role.
 3      THE BASIC REQUIREMENTS IN THE NEW LEGISLATION

        In 1991 the new Constitution and the general Environmental Protection Law (EPL, amended
 1992) were promulgated. Two  provisions in the new  Constitution  are expressly  dedicated to
 environmental protection—the obligation of the State to ensure protection of the environment, natural
 diversity, and  reasonable  use  of natural resources and the right of each citizen to a healthy and
 favourable environment in accordance with established standards, as  well as a personal obligation
 to protect the environment.
        The EPL was one of the first basic laws to be adopted in the new political  situation. The
 legislators'  intention was to incorporate  in the new law all the recognized basic principles of
 contemporary environmental protection, which should  lead to better compliance arid enforcement.
 The new law is supposed to provide for  a balance of command-and-control and market incentive
 tools. It introduces stringent requirements for new facilities and the gradual achieving of compliance
 by existing  industries, thus combining the precautionary  and "polluter-pays" principle by means of
 environmental charges (still non-existent) and penalties, as well as increased responsibility and liability
 for environmental damages. The sums thus  collected are deposited in the newly created  National

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          99
and Municipal Environmental Funds, creating greater financial capacity for environmental protective
measures.
       The  law  provides for a balanced distribution of environmental  management and control
between central  and local government, counting on increased public participation in environmental
decision-making and wide public access to environmental information. Active participation in existing
environmental conventions,  treaties, and programmes of international organizations as well as
harmonization with the directives of the European Community in accordance with  the obligations
stemming from the Association Agreement and the Council of Europe membership are also expected
to play a significant role for better environmental protection.
4     THE PRESENT ENFORCEMENT DEFICIENCIES

       The two years of practical implementation of the new Law have shown that although it provides
for almost everything, its enforcement aspect once again is far from what is desired, due both to
flaws in the provisions of the Law itself, as well as for reasons outside the Law. Once again the law
does not provide for any  special enforcement programmes, nor have any been adopted in order to
achieve practical enforcement. But even without such programmes, if suitable tools were expressly
provided for,  and the necessary conditions existed, then compliance and enforcement  would be
effective.
       The intended balance  of command-and-control and market  incentive tools has not been
achieved  in practice. The enforcement of environmental protection requirements continues to rely
almost exclusively on command-and-control tools (such as ambient quality and emission standards),
charges for the use of natural resources (still not introduced), and for pollution within the permissible
limits (also still only on paper), and penalties—above these limits, instructions for the transportation,
storage, handling and disposal of hazardous substances, designation of protected areas and species,
prohibition of industries without treatment facilities, temporary or permanent closing-down of polluting
industries, and halting the execution of acts of the central government and municipal  bodies  in
contradiction with the requirements of the EPL.
       All the more, the control functions carried out both by the Ministry of the Environment as well
as by its  16  Regional Inspectorates are very much hindered by  severe understaffing  and financial
difficulties. Another issue is  the underestimation  and lack  of self-monitoring  and self-control
requirements regarding the industries themselves, rendering enforcement inconsistent and selective,
and transforming command-and-control instruments into "command-without(or with little)-control',
which brings down  the control mainly to monitoring only.
       Other possible powerful tools as the right to close down polluting industries, for example, are
hardly ever seriously contemplated due to the severe social consequences they would cause, making
the difficult present  economic situation unbearable. The very limited market incentives (exemption for
import tariffs, emission charges, and penalties as  a stimulus  for environmentally sound  industrial
behavior) have given little practical results since privatization is still only on paper. There is no real
market as yet, since it is predominantly monopolistic and deficit in character.  Thus any  market
incentives cannot give the desired results.
       The de facto double standards for new and existing facilities may be the only way to gradually
reach compliance  and  effective enforcement. At the same time, however, the very  stringent
requirements  for new  industries by means  of environmental  impact assessment (EIA),  emission
charges and penalties, and the prohibition of operation without  treatment facilities puts  them in a
more unfavourable  competitive position compared to existing ones, towards which enforcement is
often non-existent because of their present economic state and de facto bankruptcy and continuous
subsidizing on the part of the State. Thus new private industries have to bear a much heavier financial
burden, complying  with more  stringent requirements and not being able to rely on any  significant
market incentives in order to demonstrate their inherent advantages.

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100                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       The presumption that privatization itself automatically will lead to stricter compliance could
be seriously questioned, since highly polluting industries are such regardless of the type of ownership,
although private interests in principle are more considerate of environmental requirements as far as
they contribute to increased  competitiveness, lower production costs,  and company image. The
decrease in polluting emissions the last few years, which some tend to explain as a result of the
measures introduced with the new legislation, are misleading since they are mainly due to the severe
and continuing drop in production and not to better enforcement. Significant changes in this aspect
could be expected only when privatization is effectuated so that market  incentives can play a more
important role. Even more critical is the radical restructuring of the economy from the present heavy
industrial, highly polluting model to more environmentally friendly sectors.
       The precautionary principle in the EPL relies mainly on  the EIA procedure. A wide range  of
both public and private economic activities, as well as policy documents in all sectors, are subject
to mandatory ElAs with obligatory public participation and possibilities of administrative and judicial
appeal. In cases of a negative environmental impact statement, the proposed activity cannot be
carried out, while existing facilities can be closed down.
       The regulation of standards does not play to the full extent its precautionary functions. The
extremely stringent quality standards together with the lack of  permits with individualized emission
standards seriously undermine the whole regulative system, making all industries violators regardless
of their  efforts to reduce pollution. Thus existing standards  hardly play any precautionary  role,
rendering compliance and enforcement less credible and more difficult to practice.
       The polluter-pays principle embodied in the new Law relies mainly on  the aforementioned
charges and penalties. The fixed amounts (up to approximately $1  million U.S.  per month)  lack the
necessary flexibility. The very high amounts,  if collected, instead of preventing polluting activities,
could lead to the  ruining of the industries altogether, thus killing  the hen which lays the golden eggs.
The amounts  do not reflect  the  behaviour of the polluter, not providing for differentiation,  when
attempts are made to reduce pollution, or postponement of payment or  use for the installment of
treatment facilities.
        In many cases, even when penalties are imposed (and enforcement is very selective and
inconsistent in the first place), they cannot  be  collected because of  the financial state  of most
industries at present.  Thus the sums collected from  penalties still are small, playing a very limited
fund-raising function while their precautionary, conduct-motivating function is even less significant. In
addition, the lack of real market competition,  the controlled monopoly of certain industries, and the
lack of effective industrial legislation make possible  the inclusion of the collected penalties in the
price of the products, thus transforming the polluter-pays principle into the "consumer pays". In this
way, the consumer both suffers from the pollution and carries its financial burden, while the polluter
is under no pressure, nor is he liable for his actions.
        Thus environmental liability still very much depends on administrative tools,  while civil and
criminal liability continue to be almost non-existent for the reasons mentioned above, which have not
undergone  any  significant  change.  The  introduction of the possibility  of citizen  suits  by
nongovernmental organizations (NGOs) cannot play any role, since the necessary amendments in
the Civil Procedure Code have not been adopted and judicial standing exists only in cases of suffered
damages due to intent or negligent conduct,  thus eliminating  NGOs from environmental civil suits
and enforcement.
        There  is still much to be desired from the distribution of environmental management- and-
control functions among central government, the Regional Inspectorates, and municipal government
authorities. The democratization process, by its nature, presupposes significant transfer of power to
local authorities. Yet still too much  rnanagement-and-control power is concentrated in the Ministry
itself. At the same time, if some of it were to be transferred to the lower level, significant practical
difficulties would  arise. For decades local authorities had little real power or responsibilities—they
were mere executive bodies on orders from the Center. In many cases both the Regional Inspectorates
as well as the local authorities are very much understaffed and lack competent personnel who are
aware of the new environmental requirements and the way to achieve compliance and enforcement.

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A significant drawback Is the absence of lawyers on the staff of the Regional Inspectorates, The new
legislation introduces significant additional legal requirements and procedures and their enforcement
is also very much dependent on qualified legal personnel.
       The role of the regulated industries themselves in self-monitoring and control Is still very much
underestimated, thus leaving the burden of enforcement entirely on the government agencies.
Moreover,  the introduction  of public access to information and  participation in environmental
decision-making is still very limited, although the positive step to include the public in environmental
protection for the first time should not be underestimated.
       The EPL introduces provisions for free access to information. The information includes data
on the state of different media and the results of activities which cause or may cause environmental
damages as well as information on protective  and restoration  measures. Still, detailed regulation
concerning these  issues is  lacking and often the information provided to the  public is not
accompanied by adequate explanation of the scientific data. Thus, the information often becomes a
cause for undue social panic, rather than an advantage. Detailed regulation is lacking on the costs
which should be borne, as well as the concrete scope and form of the data in the three mentioned
categories.
       The only form of public participation in environmental decision-making at present is the EIA
procedure. There are certain flaws in the existing provisions,  however, creating possibilities to eliminate
public participation (e.g., the ending of the procedure for activities without a significant impact on the
preliminary report stage, where public participation is not provided for without introducing criteria for
such a decision.) A very  important drawback for public participation is the still very low level of
environmental awareness in the general public. This is related to a continuation of the past lack of
credibility of government authorities. No less important are the present economic, financial, and social
difficulties suffered by most citizens. Thus  environmental concerns, with limited exceptions, lack
priority as far as the ordinary individual is concerned. Environmental NGOs, although initially one of
the major driving forces for  political change, are losing social credibility, and often they  lack the
necessary °know-how° for efficient participation and co-operation with the regulating  and enforcing
agencies.
       The harmonization of Bulgarian environmental legislation  with existing international and
European requirements is also an extremely difficult task. In the first place, the existing European
legislation is not well known (although for the first time it is available); also, it is intended for a totally
different political,  legal, economic, and social reality. So harmonization in fact entails significant
adaptation in order to give even limited practical results.


5     CONCLUSION

       The past two years have shown that despite the efforts and the introduction of new legislation,
low compliance and enforcement continue to be  the most severe problem. The new Law still lacks
a lot  of the implementing regulations needed to be  effective; thus a lot of the good initial intentions
remain very  much  only on paper. Also, some contradictions exist between the Law itself and the
provisions in the adopted implementing regulations, as well  as  between the EPL and laws in other
sectors. The "instrumental" laws are slower in changing, thus diminishing the possibilities for effective
enforcement.
       Environmental concerns, despite the declarations,  are still not integrated into economic and
policy decisions and they are rapidly being pushed into the background by purely economic priorities.
Moreover, the general political situation is  deteriorating. The former lack of credibility in the law and
institutions remains unchanged; economic reform is de facto entirely blocked—there has  been no
significant privatization  or structural reform. All this underlies  the severe  difficulties in achieving
significant changes in environmental protection  and effective enforcement of the newly  adopted
environmental legislation.

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       The implementation of the new Law proves that achieving effective enforcement will be a very
slow and painful process, marked by serious contradictions and conflicts of interest. At the same
time, society has the unique chance to make a radical change in environmental protection, but such
protection will not make significant progress if it relies only on legislative provisions, which without
the necessary political and economic preconditions will continue to remain declarations of good intent
and the constitutional right to a favourable environment without effective guarantees.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        103


ENVIRONMENTAL COMPLIANCE ISSUES DURING THE PRIVATISATION
PROCESS IN POLAND

SYRYCZYNSKI, PIOTR

Coordinator, Permanent Interministerial Unit for Environmental Issues in Capital Privatisation, Ministry
of Privatisation & Chief Inspectorate for Environmental Protection, ul.Krucza 36/Wspolna 6,00522
Warszawa, Poland


       SUMMARY

       The article shows the way in which Poland tries to solve environmental problems during the
sale of shares in state-owned companies.  The foundations of the activities of the Permanent
Interministerial Unit for Environmental Issues in Capital Privatisation are described. The Unit, which
started Its work in February 1993, has taken part in preparing almost 40 sale deals and has checked
the environmental situation of approximately 120 companies. The various results of the Unit's activity
are shown, emphasising stimulating Polish managers' awareness of environmental problems. The
example of a published prospectus for the public sale of shares has been included to show how
environmental issues in such documents are treated.
 1      ENVIRONMENTAL ISSUES IN OWNERSHIP CHANGES IN POLAND

 1.1    Administrative framework

       Poland is a Central European country with 312,700 km2 and 38,460,000 people. From 1949
 to 1989 Poland was ruled by the so-called Communist Party, which developed mostly state-owned
 industries.  The huge steel, coal, and  heavy chemistry state-owned  industries still dominate the
 southern and southwestern areas of  Poland. The inflation rate is approximately 35% per year. The
 currency—the "zloty"—is fully exchangeable with hard currencies and the exchange rate is adjusted
 every day. At the beginning of 1993 the exchange rate was 15.500 zlotys to the U.S. dollar.  At the
 beginning of 1994 this rate was 21.300  zlotys to the U.S. dollar.
       Democratic and economic reforms started in the beginning of 1989. Until now almost 2000
 little and medium-size enterprises were privatised through leasing, worker or management  buy-out,
 the sale of assets after liquidation, and other paths. Almost 100 big enterprises were privatised through
 transformation  into  joint-stock  companies and the  sale of shares to foreign and Polish private
 investors. Since 1989 Poland has developed extensive trade links both with the European Economic
 Community (EEC) and former Soviet  Union republics. The Polish Stock Exchange is the biggest in
 the former  communist countries, with the capitalization over 2,000,000,000 USD (2 bin USD). Three
 of the 12 biggest Polish banks are private.
       The privatisation process, which started in spring 1990, was supported by financial and
 technical aid from World Bank, EEC  countries,  and other international and private institutions. This
 money was the major source of income for hundreds of foreign consultants, among them at least
 several environmental auditing firms. The Polish ecological firms developed, too. The biggest private
 one, active mostly in the area of water  management (waste water treatment plants projects), had a
 turnover 10 mln USD in 1993.
       By  the end of 1992 only a small part of  deals were preceded by the  full environmental audit
 of an enterprise. The contracts for the share sale signed in 1991 and 1992, rarely defined in detail a
 range of the responsibility being taken for past pollution. The situation resulted from' the lack of precise
 definitions  in this aspect in Polish law.  In such  circumstances, at the end of 1992 it was observed
 that:

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       • In some contracts, investors stated that true costs, which they would have to bear
         because of environmental protection, were much higher than they anticipated.
       • A certain group of enterprises did not find any buyers who, at the beginning, called
         in a large number but then started to give up due to the problem of environmental
         protection,
       * Investors started to require more detailed and clearer data about the ecological
         situation of the region in which they intended to invest. In order to achieve that they
         started making their decisions based on the results of environmental  audits. This
         coincided with the attempt made by the Central Statistic Office to conceal some
         information  about the emissions of the enterprises and their impact on the
         environment.
       • The  representatives  of the Seller (the State Treasury)  realized that without  an
         environmental valuation of the enterprises the privatisation process would drag on
         too long and the considerable initial costs born would not be returned because the
         sale deal would not be signed. This coincided with the defining in the Budgetary
         Act of some important revenues resulting from the privatisation process,  which
         were in danger of being not achieved unless the problems  of  environmental
         protection were solved.
       • Foreign ecological consulting firms were gradually replaced  by syndicates, each
         including a Polish and a foreign firm (or individual specialists). Such pairs of firms
        . are able to operate much better due to the fact that a Polish firm knows the local
         law and knows how to obtain and verify the scattered ecological information and is
         aware of the  local system which sometimes blocks reasonable solutions. The
  ........   foreign firms contribute world experience and knowledge of modern technologies.
         The system of Polish environmental law is complicated, and a firm located 1500 km
         away from Poland without a permanent representative or a cooperating  Polish
         company does not know many important regulations and therefore its results are
         often not very reliable,
       » The problems  of  environmental  protection have started  playing a  much more
         significant financial part in the deals, and some deals have been recently signed in
         which those problems have accounted for 40% of their total value.

 1.2    Sizing up the problem

       Polish privatisation process in 1993 gave the income for the State Treasury of approximately
 380 mln USD (7 bin zloty). The costs of this process were around 5% and the costs for environmental
 assessments ordered by the Seller (the State Treasury) were less than 0,3% (no more than 1 mln
 USD). The environmental audits were paid for by investors and by the companies themselves. So
 the real expenditures were around 2 mln—2,5 mln USD. The information collected during this process
 sometimes had a real impact on the decisions taken by the Seller and the Buyers (investors).
       In order to be more precise one should add that in fact every year  in Poland much more
 money is spent on preparing the documents connected with environmental protection.  Every year
 approximately  200 environmental impact assessments,  500 documents for  the purpose of air
 permiting,  and more than 1000 documents for the purpose of water permiting are drafted. The
 expenditures for this  area are on the level of 4 mln USD,
       Privatisation  goes with varying speed in different areas of industry.  Privatisation of the
 telecommunication industry took all six factories. Three cement plants out of twelve were sold, three
 pulp  and  paper factories out of eight, and almost 70% of furniture  factories were sold etc. No
 chemicals  factory was sold and only this year two medium-size pharmaceutical factories will be sent
 to the stock market.

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       In Poland several dozen institutions deal with the privatisation process. Apart from the Ministry
of Privatisation (MOP), there are the Ministry of Finance (privatisation of  banks), the Ministry of
Economic Cooperation with Foreign Countries  (privatisation of trade enterprises), and vojevodas
("governors") (privatisation of small industrial plants). However, the industrial enterprises that due to
their size and pattern of production  may  have the  greatest environmental impact are mainly
subordinate to the Department of Capital Privatisation in the Ministry of Privatisation. Environmental
enforcement is carried out by the State Inspectorate of Environmental  Protection and the activities
are coordinated by the Supervision Department of the Chief Inspectorate.
       In 1992 during the negotiations preceding the signing of several contracts, numerous working
and rather informal contacts between both the .institutions took place. The situation resulted from the
fact, among others, that  the ecological situation of some enterprises should have been examined.
Both institutions exchanged information and opinions on the subject of the environmental compliance
of the companies, paid (or unpaid!) fees and fines, existing bans etc. Both sides learned from their
mistakes, too.
       On the initiative of the State Inspectorate for Environmental Protection, after some months of
heavy negotiations,  in February 1993 an agreement was  signed.  It established the Permanent
Intermlnisterial Unit for Ecological Issues in  Capital  Privatisation. Establishing such a group was a
formal step which meant approving permanent practise of cooperation between the environmental
protection agencies  and privatisation agencies. The group, including  four persons (two from the
Ministry of Privatisation, one from the Ministry of Environmental Protection, and one from the Chief
Inspectorate), started working and soon its task appeared to be serious.

1.3    Principles of the Intel-ministerial Unit's activities

       The basic principles of the operation of the  Unit can be shown by presenting the most
important wording of the signed agreement which precisely defined  the range of duties imposed:
       •  Cooperation and coordination of assistance  from Polish, bilateral and multilateral
          organisations active in the area  of donor  assistance  necessary to secure the
          financial  assistance  for the  execution of  environmental audits, research and
          preparation of reports  addressing  the  resolution  of environmental problems
          encountered in the process of capital privatisation.
       •  Preparation and inspection of completed  environmental questionnaires that have
          been sent to state-owned enterprises in the process of privatisation,
       •  Definition of the scope and methodology of environmental audits of enterprises for
          the purpose of capital privatisation within existing financial limitations of the Ministry
       "   of Privatisation,
       •  Preparation of the tenders for the selection of firms to execute environmental audits
          if the legal and financial audits do not address environmental issues.
       •  Supervision of the selection of consulting firms executing environmental audits for
          the Department of Capital Privatisation.
       •  Review  of environmental  audit  reports  and other  materials received  from
          environmental  consultants, particularly with  respect to the comprehensiveness of
          the information prepared, inclusion of important  contingent liabilities and  other
          issues that can hinder the capital privatisation process.
       •  Cooperation with  the relevant environmental protection authorities necessary to
          facilitate the privatisation of enterprises selected for capital privatisation.
       •  Supervision, in close cooperation with project managers in the Department of
          Capital Privatisation, the execution of environmental audits and the incorporation of
          this Information into the provisions  of sale contracts for the shares of companies.

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       » Development of contractual  provisions for sale contracts which  incorporate
         environmental issues into the  transaction.
       • Participation, if needed, in negotiations with potential investors on the subject of
         investment obligations concerning the improvement of ttie environmental situation
         of the privatised companies,
       » Preparation of responses to  potential investors, other governmental  and non-
         governmental agencies concerning the  Unit's activities.
       • Assistance, upon request, to all departments and offices of the Ministry of Privatisation
         in resolving environmental issues which arise in the privatisation process.
       « Participation in ensuring the implementation of purchasers' environmental protection
         obligations as defined in sale contracts of shares to investors.
       * Participation, if needed, in conferences and other meetings connected within the
         scope of the Unit's activities.
       » Evaluation and initiation of legislation and regulations affecting both environmental
         protection and privatisation, particularly resolving some of the uncertainties which
         investors face in Poland.
       * Preparation of tri-monthly written report  on the Unit's activities.
       * Execution of other tasks commissioned by the persons supervising the Unit.

       It is worth emphasizing that no duty imposed on the Unit interferes  with the duties of other
 agencies responsible  for decisions concerning both  problems of environmental protection and
 privatisation. In truth, the  main task of the  Unit consists of permanent intermediation between the
 persons responsible for decisions in both ministries and local authorities. While solving each problem,
 the Unit identifies who on each side is a person entitled to make a decision acceptable by both sides.
 Sometimes the Unit is busier with the negotiations between the privatisation agencies and
 environmental protection agencies than the negotiations with the investors.
       One should notice, however, that the Unit in some part of its activity completes the work of
 the State inspectorate for Environmental Protection (SIEP).  S1EP does not confrol all the industrial
 plants. Sending questionnaires, their analysis,  requiring additional information, and/or ordering
 environmental audits stimulate ecological awareness of the hundreds people  in the  management
 boards of state-owned companies. In truth the Unit is like a little environmental enforcement agency
 inside the privatisation agency.
       The main activity of the Unit, as is evident from the above tasks, concentrates on the deals
 made by capital path. These are, as a rule, the largest deals, involving many consulting law and
 business firms.  The press, supervising organs,  the  opposition  parties, and the trade unions are
 especially interested in the deals. On both sides (on the side of the Seller, ie, the State Treasury, and
 on the side of the Buyer, ie, an investor)  are very experienced firms (and individual specialists).
 Moreover, they include Polish companies, sometimes with almost ten years of experience in ecology.
 Their managers are previous directors or deputy ministries from environmental protection agencies
 who know the ins and outs of Polish law very well. One of these firms has achieved great success
 by helping a big Polish enterprise in proceedings before the Highest Administrative Court against the
 decision of SIER
       While operating, the'Unit's activity is aimed at:
       *  Supplying the managers of privatisation projects with the most objective information
          about the ecological situation of the firms.
       * "Doing the rudimentary financial  estimation of possible "contingent  ecological
          liabilities" on the basis of the obtained data.
       »  Ensuring that the contracts signed clearly define the  range of responsibility for the
          environmental problems for new investors.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         10?
       • Ensuring that the investment obligations which are a part of many contracts include
         the most relevant investments  necessary to quickly improve the environmental
         situations of the firms being privatised. One should notice that, according to the
         rule imposed at the end  of 1992,  the  contracts include serious conventional
         penalties, to be paid by an investor who does not fulfil his investment obligations.
       • Ensuring that potential risk of the State Treasury in regard  to the guarantees and
         statements offered is the smallest.
       • Ensuring that in case of difficult contracts in which many environmental protection
         problems arise, equal terms for potential offerers are created in such a way that the
         obtained offers are comparable,

       Sticking to all the above mentioned principles is sometimes difficult; it requires involving not
only time but also capital expenditure. However, after one year of practise, a practical system has
been implemented. This system, acting as a vehicle assembly line, is described in the next section.

1.4    The technical principles of  introducing environmental  enforcement rules during capital
       privatisation

       After one year of the Unit's activity, the appropriate method of implementation of environmental
issues has been established.  Its scope depends on the real need and amount of money that can be
spent.
       « At  the  beginning (usually at the time of the selection of the lead advisor) a
         questionnaire is sent to the company selected for privatisation. This questionnaire
         is similar to the U.S. EPA one, but it is based mostly on Polish environmental law.
         The answers are sometimes far from the truth, but it is still the expected situation in
         Poland,
       » The terms of reference for the  lead  advisor state that the environmental audit is
         optional and eventually the MOP will inform the lead advisor about the method of
         selection of environmental consultants. Sometimes there is a separate tender for
         environmental auditors. The Unit prefers this path for the privatisation of companies
         with poteritiarehvirohmental problems.	
       • The environmental auditor or the members of the Unit (if the full audit is not
         needed) contact the regional environmental protection authorities.  The authorities
         are asked to give their opinion on the environmental situation of the company and
         the scope of the investment commitments that can be implemented in this case.
         The cooperation  of various authorities is different, but they try to be helpful in this
         matter. '
       » After receiving the first bulk of information (from  questionnaires, -environmental
         - audits, regional  authorities, and the Chief inspectorate) the Unit  prepares a
          "summary" which addresses:
            -  the violations of environmental  law;
            -  other environmentally related issues that will have an  impact on the
               privatisation process;
            - . the list of needed investment commitments; and
            -  other important legal issues (eg, future validity of existing decisions).
       • Sometimes an environmental audit (first stage) is not sufficient to explain in detail
          the existing ecological problems.  In such a situation the Unit makes a decision to
          carry out the second stage of'environmental audits (drilling and sail analysis), and
          sometimes call for an additional expert's report, eg, geological or mining. Recently
        .  there was a need to obtain an expert's report on the  situation at a mine located

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         under an enterprise being privatised. An assessment of the recultivation costs was
         done, too.
       • A very relevant and necessary element of the process,  in case of complicated
         pollution and an existing danger to the environment, is obtaining official approval of
         prepared hydrogeological documentation. Only the approved documentation can
         be the  basis of the  real estimation of the  danger and  the  basis of other final
         decisions.
       • Sometimes members of the Unit are obligated to participate personally during the
         negotiation of various contracts. But such a situation rarely occurs due to the fact
         that it is necessary only in such circumstances when on the previous stages some
         items have  not been analyzed, estimated,  or calculated. It is not  a permanent
         element of the Unit's job.

       After some initial problems, the Unit managed to obtain funds for making environmental audits.
At present they can be financed from four sources:
       • Backing funds PHARE.
       • Funds of the enterprises being privatised.
       • Budgetary funds.
       • Funds of the Polish ecological funds.
       • Eventually some  funds from escrow accounts (after  signing the contract), may
         become available.

       Nowadays the privatisation process in Poland generates so much interest that in some cases
over 20 offers are  received from all over the world. At the same time, the Unit tries not to unnecessarily
stop the decision-making process. With early finding, problems  often can be solved and estimated
much earlier. In this way the decisions can be taken with proper knowledge of the involved risks.

 1.5    Achievements in solving environmental compliance issues in the capital privatisation process

       Since February 1993, the Unit has  made  about 120 analyses of answers to questionnaires
sent to the companies. Now if the company wants to be privatised by the capital privatisation path,
 it must answer very detailed questions, which are checked by the Unit. At the same  time, in the case
of 80 enterprises  the competent local authorities have  been consulted.  In the case of 35 enterprises
 environmental audits have been ordered (first stage). In the case of 10 enterprises  it was necessary
to order additional  experts' reports. Some cases needed the long negotiations on the subject of
 unpaid or  suspended fines and penalties. Usually the financial problems  were much more  time
 consuming than others.
       The obtained results have been included in the contracts signed in the form of:
       • The disclosure letters which state the facts of breaking  the environmental protection
          law.
       • The proposed investments which ought to be implemented  in order  to  attain
          accordance with the rules.
       • Defining the division of responsibility for the various problems.
       • Principles according  to which  the  Seller may be responsible for some of the
          obligations  (ie, multistage conditional clauses limiting possible payments on the
         .Seller's part).
       • Defining what amount of funds originated from the contract is required to eliminate
          past liabilities and defining what other tests and analysis should be made.

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       One should add that there are some problems which are by-products of the Unit's activity
but which may have significant influence on the problems of environmental protection. Among others,
these are:
       • That the sale process for companies which are known  to have had ecological
         problems from the  beginning  should take that fact into  consideration.  Both
         informational memoranda and precontract drafts sent to potential investors should
         clearly refer to the problem. Otherwise some potential investors will not understand
         the suggested way of solving those problems. In some cases, offers are proposed
         which are inconsistent with existing Polish law (say they propose in their investment
         to import waste from EEC). Another case, for example, is where an enterprises may
         not have permission to dispose sewage due to the  fact that it has not built a
         sewage-treatment  facility  and  the potential  offerer  has forgotten  this in his
         investment plan.
       • Consulting  advisory  firms which  deal  in the  privatisation  process  have to
         understand the policy of the Seller. The pay for such firms is often dependent on
         the success of a deal and its value, which sometimes contradicts the benefits of
         solving the ecological problems.
       • As a rule,  during the initial part of the privatisation process the management of
         such firms are very nervous about the fact that the Unit has found and analyzed
         existing  environmental problems. Sometimes  some time must pass  by  (1-2
         months) before the  management understands that it is impossible to  end the
         process as long as these problems are unsolved.
       • Sometimes a very tense situation occurs when considerable profits on a deal have
         been anticipated and suddenly it  has turned out that the costs of environmental
         clean-up and pro-ecological investments decrease the Seller's  earnings.  The Unit
         has faced a situation where a company counterfeited documents submitted to the
         vojevoda (governor) for the purpose of not paying 700.000 USD a year of charges
         and penalties for breaking the permits.
       • Any settlement of the above mentioned problems sometimes has  to be  done
         ••quickly due to" the very tight schedule of other privatisation activities. This situation"	
         increases significantly a danger of making an error.
       The seriousness of handling such affairs  is expressed by the fact that the privatisation process
 is permanently supervised by both Parliament and the Supreme Chamber of Inspection.  In two cases,
 on the basis of the charges formulated by both  bodies, legal proceedings have been taken. Making
 a mistake—for example, doing the wrong evaluation of the possible responsibility, or making an error
 concerning a word or clause in the  contract—can produce a bad result. It is especially significant
 due to the  situation that according to the Budgetary Act the income from privatisation should amount
 to 500 mln USD in 1994.
       Despite a complicated situation during  the past year, the Unit has produced results with a
 real impact for the environment:
       • The sale contract of a very old cement plant which was in a  very bad technical
         situation has been finally concluded.  The Buyer has undertaken the obligation to
         invest over 20 million DM for the purpose of total modernization.
       • The sale contract of one pulp and paper factory was signed. This company was
         heavily mortgaged and on the verge of bankruptcy. The Buyer has undertaken the
         obligation to invest over 36 million USD for  the purpose of liquidation of the pulp
         unit and the total modernization of the factory.
       • Several other contracts were signed.  In one of them, about 5 million USD have
         been reserved for possible costs of soil clean-up and 120.000  USD for consulting
         fees.

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       • Many other small contracts have been minor successes for the environment. New
         investors will upgrade boilers, install equipment for air-protection, and build new
         wastewater treatment facilities.

       Recently the proposed new version of the privatisation act added detailed legal provisions
on the subject of environmental issues. By this act the proper full preprivatisation audit ought to
include:
       • Analyzing and  considering  all administrative decisions,  among  them  those
         connected with environmental obligations.
       * Summarizing  all the appropriate  investments needed for fulfilment  of  Polish
         environmental law.
       • Evaluating the value of the various deposits excavated or the existing resources of
         the company.
       » Considering  all  other  important  environmentally related  facts  (among  them
         potential "contingent liabilities").

       The important backing for the above achievements was the fact that the Commission for
Securities has sharpened the regulations concerning the information which must be disclosed in an
emission prospectus. It requires, under the penalty of five years in prison, the disclosure of a!) facts
which may have an impact on the  future financial situation of a company. The  prospectus must
include:	"
      '• Administrative  proceedings being taken  (those  connected  with  environmental
         protection must be shown, too).
       • Important facts known by  the company which can influence its financial standing
         (the existing land contamination which may require recultivation is included, too).
       Sharpening those regulations followed from the fact that one public company had concealed
in its prospectus that it could obtain a significant tax exemption.
       One should notice that in Poland legislation is still not complete  which would  help to define
the size of possible ecological liabilities. There are many complicated individual regulations which
sometimes must be properly taken into consideration in the contracts. In view of  this fact, the  Unit
has  proposed that the  ecological part of every contract be a separate part of  the contract, not
connected  with other parts. This method enables defining more clearly the environmental protection
problems than in a classic 'American" structure of a contract in which all the clauses  include all the
elements of the  activity of the firm being sold.
       One should notice that the goal of the Seller which is the State Treasury (in Poland the Ministry
of Privatisation acts on its behalf) is not the same as the goal of the Seller—a private  company. The
State Treasury (the Government) may have goals other than the simple acquisition of income.  So the
tools ought to be different if the goal is different.
       The .Unit, has  initiated a proposal to address the European  Bank for Reconstruction  and
Development  to finance the project of establishing guidelines on soil and underwater  contamination
of land intended to be used in activities connected with crude oil refining. A representative of the Unit
took part in the  work of two committees on modernization of Polish environmental protection law.  In
March 1994 a short seminar is scheduled on the subject of mine and mineral deposits evaluation.
One should stress the assistance granted by U.S. EPA and the International Bar Association which
in September 1993 helped to organize a training for the members of the Unit and other  clerks from
Polish agencies dealing with problems of privatisation and environmental protection,

1.6    Cost, economic, sand political factors  versus compliance issues in capital privatisation

       Adequate analysis of ecological problems decreases the potential risk both on the part of the
Seller (the  State Treasury) and the Buyer (the investor).  A detailed analysis often causes an investor

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to agree to take all the responsibility for the existing problems of environmental protection. It is,
relatively, the simplest situation but it occurs mostly with companies with known past activity and a
well-known, simple process of production. It can be used if, for example, the only problem concerns
a coal boller-roorn, a porcelain heating furnace, etc.
       The decisions made concerning the allocating of some funds  from contracts to solve the
probtems of environmental protection can cause:
       • Reduction of funds allocated to maintain and create new jobs for the employees of
         a plant. As a rule, when the ecological problems are solved, new jobs are created
         in other firms.
       » Slowing  down  the  whole  privatisation  process due  to the fact  that obtaining
         necessary  agreements is sometimes  required.  Local authorities may have other
         goals, and sometimes they demand additional money for  roads,  wastewater
         treatment facilities, etc.
       • Defining that 10,20, or 50% of income goes for environmental protection goals is in
         fact modifying the Budgetary Act.  The money might eventually have gone for the -
         poor, housing, unemployment, etc.
       « Assigning the funds to solve the exact "individual" problems automatically means a
         change  in the  order of solving  the environmental problems in  the scale of the
         country. The modernized and ecologically healthy enterprises  gradually (but rather
         quickly) force out of the market the other ones. In this way environmental protection
         becomes an additional factor which, significantly accelerates market development
         in post-communist countries.

       Having a wastewater treatment facility is often a key  element when  making investment
decisions; for example, foreign investors have changed the site of a plant by 50 km in order to build
it in a town which has such a treatment facility. The other town still  has  unemployment over 30%. In
another district, near the sea, where there is a lack of a proper landfill and wastewater facility, no
privatisation deal has been made.


2     ENVIRONMENTAL COMPLIANCE VERSUS THE PRIVATISATION PROCESS

2.1    Typical examples of the dependence of the privatisation process on the environmental
       performance of companies

       Polish environmental protection law is mainly based on the Administrative Code. This means
that a plant has to apply to the competent administrative bodies with a request to obtain permission
for using the environment. During the privatisation process, MOP forced many enterprises  to settle
their      situation in this respect. The investors during the talks with the companies also required
legal clarification of  their environmental situation. Therefore many deals are still not ended. They
include for example:
       • A deal which awaits a legally valid permit for air emission.
       • A deal which awaits explanation of the legal status of a so-called protective zone.
          This zone is inhabited by several families,
       « A deal which awaits evaluation of the costs of the clean-up that will be done during
          the next five years.

       The fact that such situations occur stimulates many other companies which want  to settle
their legal status—to the sincere surprise of local environmental authorities. Sometimes a plant, which
for many years refused to  deliver a complete set of documents,  delayed the administrative
proceedings and suddenly demands settlement as quick as possible.

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       During this process, accelerated education of many managers takes place.  During the
privatisation process they  start realizing that they must quickly change their attitude  toward the
environment or they will be fired.
       Apart from the positive elements one can mention an element which is still not possible for
the Unit to achieve. This is the problem of excessive (in my opinion) consumption of underground
water by companies. Their dependence is sometimes almost 100%. The resources of underground
water are  limited and it ought to be used only for the food-processing or pharmaceutical industry.
However, there is a chance that the privatised plants will reduce water consumption and will build
alternate sources of supply.

2.2    Example  of the environmental part of a prospectus published for the issuing of shares in the
       Polish stock market

       "The Company production does not involve environmentally damaging technologies, except
common ones, such as a waste water release and heating applications. In recent years the Company
has built a modern waste water purification station, which meets all standards.
       "Two different sources of heating are used in the Company. One  is from the city heating plant
and the other is  from the Company's own boiler house. The latter source  of heat has gone through
a modernization  process aimed at significant lowering of emissions.
       "One of the elements of the Company production process is covering all parts with special
paint for transportation and storage. According to the existing norms, no special paint-room is required
to  perform this operation.  Nevertheless  the Company is considering installing  a  special,
environmentally friendly paint vapour collection facility.
       "Expenses planned for environmental protection in 1994-2000:
       *  waste  water purification^station maintenance  app. 50.000 USD a year;
       •  installation for lowering emission of boiler house  + maintenance 1996 = 150.000
          USD, 1997 = 200.000 USD, next years app. 25.000 USD a year;
       •  paint vapour collection facility + modernization  of paint facility 1998 = 300.000
          USD, 1999 = 350.000 USD, 2000 = 350.000 USD.
       "Main air polluters are the following:
       »  company boiler house producing heat;
       •  production facilities;
       *  tool-house, polishing shop;
       *  grinding mill: chamber-type, through-type.

       "When modernization of main  polluting facilities are finished the Company will request to
change the regulations imposed on the Company by the authorities,
       "Since November 1992 all waste water is purified by a newly built purification station before
draining into the Odra river. The purification process is both mechanical and biological. Parameters
of purified water match the norm of decision.
       "Production waste, which may be produced as a  result of the Company activities, are  as
follows:
       «  used oils and greases (transferred to CPN);
       •  fermentation waste from  water  purification process  (currently placed in  own
          reservoir);
       *  slag (managed internally).     	"~
        "Modernization of waste management facilities and processes wilt decrease contributions to
the Environmental Protection Fund.
       "The Company paid 20.000 USD in the first half of the year as environmental fees and fines."

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3      CONCLUSIONS

       The constitution of the Permanent Interministerial Unit was a natural result of the development
of the privatisation process in Poland, The Unit was established as a result of long negotiations and
an understanding of the problems by both sides—the State Inspectorate for Environmental Protection
and the Ministry of Privatisation. When the Unit started to operate and the results were successful,
everyone wondered why it had  not been established earlier.
       One should also note that the privatisation process disclosed all the small failings of Polish
environmental law— discrepancies between some regulations and their  lack of precision.  Because
of that, members of the Unit have been assigned to the committees established on the turn of 1993
and 1994 for collecting and treating all mistakes  in Polish legislation and proposing changes which
will increase the efficiency of ecological law enforcement. The matter is also raised by investors who
do not want to compete with the plants against which environmental law is not effectively enforced.
In a way that may be paradoxical, the enforcement agencies have earned a strong ally. The serious
investors want to have clear rules and strong enforcement against those who break ecological law.
The Commission for Securities has become the second ally which has helped  in introducing the
environmental factors in capital privatisation. The risk factors connected with the shares must be
disclosed properly. This contributes to better environmental performance by many companies.

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SOME METHODOLOGICAL ASPECTS OF DESIGNING REGULATIONS AND
SETTING PRIORITIES IN ECONOMICS UNDER TRANSITION

BANDI, GYULA

Scientific Director, COPERNICUS Environmental Law Programme of the Danube region, University
"Eotvos Lorand" Faculty of Law, H-1053 Budapest, Egyetem ter 1 -3, Hungary
       SUMMARY

       Countries in economic transition must think over the state of environment and the state of
environmental regulation and environmental enforcement. In the  long run economic changes,
evolution of a market economy cannot exist without clear requirements, providing certainty for the
economy and also for the society. Environmenta! regulations and priorities in these countries on the
one hand may follow some general directions, and on the other hand may have certain features that
are characteristic for the  transition era.  In  the first part those common  options are examined
that appear  to some extent  in all environmental  regulatory schemes, like the comparison of
command-and-control   approach vs.  market-oriented  measures.  In  the second part  the
methodological problems cover those questions that are similar in countries under transition, for
example, the property constraints and the possible limitations  of property  freedoms. Finally, the
decision in regulatory methods and directions needs a clear-cut organisational background with the
eminent role of public administration together with the control of the public over tie administration.
 1      INTRODUCTION

       First: Transition, that is "passage from one state or condition to another" (1) or "a) passage
 from one state or stage to another, b) movement, development, or evolution from one form, stage or
 style to another" (2), has nowadays a distinguished meaning. It is applied to characterise the changes
 in political, economic and social life in the former socialist countries. If we"'carefully look''at the
 dictionaries' terminology, the last wording gives a development perspective to the word, thus transition
 means an "evolution." Therefore, in the following I use this  phrase in a broader sense than simply
 the transition in the former "Eastern block" countries. Instead, I understand all the qualitative changes
 in a positive perception under this term, that means transition may take place in a developed  country
 also, If, e.g., the environmental concept, regulation, and enforcement are changing fundamentally. Of
 course, I would rather use the examples of the Centra! and Eastern European countries than of other
 countries, but I regard the problems and possible answers to these problems as representative to a
 number of "transition" cases.
       Second: Transition as an evolution  does not necessarily equate with definite environmental
 improvement. The No. 99 WorldWatch Paper reads: "One of the distinguishing features of the East
 European revolutions of 1989 is their strong environmental component. In numerous instances, the
 environment in tine pre-revolution days served as a rallying  point from which broader demands for
 political change emerged." (3) This  stating point could easily give the impression to  the one who
 analyses these regional revolutions that this promising commencement may conclude in clear
 environmental  betterment. The past three to four years did  not prove  this impression In any of the
 GEE countries. The  significant drop in air pollution in  Hungary was due more to the series of
 bankruptcies than to  the aforethought environmental regulatory innovations. Transition is not  a quick
 process, but needs time. Also economic transition alone will not lead to transition without proper
 social  and environmental changes. For those who  did believe that economic transition was  a quick
 and autonomous process, e.g., the election results in Russia or the relative lack of environmental
 consciousness proved to be a "wake-up" call.

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116                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Third: Anyway, the transition process is much longer than simply an election period of the
 new democratic parliaments. Thus, we may still hope that environmental improvement and political
 or economic transition would go hand in hand, If we pretend that it is possible or even essential, than
 it is worth analysing some conceptual and methodological issues of environmental enforcement, first
 of all from the point of view of regulatory conditions for effective enforcement.
 2      BASIC METHODOLOGY OF REGULATION

        From among the number of different problems around environmental enforcement, probably
 the most relevant is to decide what kind of methods to take as basic conditions for regulation. The
 methodology here means the underlying concept or regulation. Although the historical development,
 the national characteristics of the states have a determining effect on the legislative concept, some
 of the main decisive problems remain the  same all over the world, and most probably tile final
 outcome of the competition between methods shall be similar. The primary reason for this potential
 similarity lies in the  regulatory subject, the  environment, that is impartial and  global.   I  make a
 distinction among  three methodological problems;
        • Media-specific regulation vs. integrated pollution control.
        • Command-and-control vs. market-based approach.
        • Quantitative standards vs. technology-based methods,

 2.1     Media-specific vs. integrated regulation

 	As  the history of  environmental  law  began  with  the dispersed,  case-by-case,
 element-by-element type of regulation due to the early problems of recognising the complexity of the
 environmental puzzle, no wonder why this era was characterised  by the media-specific regulation.
 This  is not  a major  obstacle in itself and also not a merit, but a fact following from the  trend of
 development. The media-specific regulation is rather a limit in the way of structural handling of the
 case. After a time  of developing the environmental sectors separately, the need  for harmonising the
 similar types of instruments comes to the forefront.
        Also later in time it became clear that the media-specific regulation is rather a restriction than
 an advantage,  as most of the environmental  pollution emissions may easily be transferred to another
 sector, another element of the environment. The integrated pollution control on the other hand (is less
 stock) to the given environmental media, but tries to control the impact on the overall environment.
 A good example for this kind of concept is the issuance of a complex environmental permit, instead
 of several individual permits for water use, land use, air pollution emissions, etc. (4) Also the Hungarian
 law introduced a kind of integrated environmental permit, given to those investments, that require an
 environmental  impact assessment.  The integrated  pollution control also has  an effect on the
 organisational  structure of the  protection, as most of the environmental tasks should be integrated
 into  one system.  Thus the  integrated pollution control method is not really a counterpart  of the
 media-specific regulation, but it is  rather representing the next and more  developed level of
 environmental  protection. The  distinction as we made here therefore is not a  real dichotomy, but
 rather a way of accepting the reality that in a  number of countries the legal environment is not capable
...at the moment to  follow the  concept of integration.
        As a next field of this question and also a way of shifting to pur next subject is the interpretation
 of integration into the legal system, especially into the economic regulation. Probably the most exciting
 challenges  are how  to integrate environmental implications  in  the process of developing market
 economy,  how to harmonise  the needs  for developing market economy  with environmental
 requirements, and what kind of development strategy to choose. This issue is by no means  one of
 the most important challenges for those countries  that have entered into the market development

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only recently, like the Central and Eastern European countries. There are two principal options in
connection with this understanding integration:
       • To integrate environmental requirements into market economy development with
         restructuring the economic management,
       » To take environmental requirements into consideration but to give priority to market
         development and together with this postpone the integration to a later stage, after
         strengthening the economy.

       The CEE countries and other countries in economic transition now have a big chance to follow
the first option, simply because they get rid of one economic management system in order to develop
a market-oriented  one. The support should focus on the  process of  this  kind of  integration. A
fundamental precondition of this is  to create in these countries a clear-cut environmental policy,
environmental strategy.

2.2    Command-and-control vs. market-based approach

       The traditional idea of environmental regulation is to set up priorities, to describe the required
environmental situation, and  to allocate the necessary instruments and organisation  in order to
execute the legal requirements. These requirements are controlled by the state in most of the cases,
who imposes sanctions on the polluters infringing the legal regulations. An emerging technique is to
influence the market or to  allow the market to regulate itself in order to achieve the designed objective,
a determined state of environment. Thus this second methodological question is connected with the
development strategy. The basic discussion point that is reflected in this dispute over the methods
is to find how to put a price on the environmental interests  as any other commodities, that is, how
to  internalise externalities.  This may be  translated as  the need for  integrating environmental
requirements into the socio-economic structures.

2.2.1   Combining command-and-control and market-based approaches

       The  main alternatives  range from  command-and-control mechanisms  to a  market-based
' approachf A third~bption islo develop the two together, as'therels'rio waylo^separate^tfie"strategies
from each other. In principle  it is possible to make a distinction  between the two methods, but in
reality there is no way to  separate them absolutely. No market economy can live without regulation,
and an absolute free market does not exist. The regulatory element is  even greater in the field of
environmental protection  than in other regulatory areas. Also the  market-based  approach itself is a
legislative and management product. It is obvious that the  use of strong market incentives cannot
live without an existing enforcement system and more probably without an existing market American
experts wrote in their analysis of comparing these methods: "It should be noted that market-based
policies themselves must involve  some regulatory constraints on pollution and they require
government supervision and enforcement to ensure that the goals are achieved." (5)
       The Agenda 21 (6) of the Earth Summit in Rio reads:

        "8.13. Laws and regulation suited to country-specific conditions are among the most
       important instruments for transforming environment and  development policies into
       action, not only through 'command and control' methods, but also  as  a normative
       framework for economic planning and market instruments."
       The EPA paper  for  the Second  International Environmental  Enforcement Conference
summarises its opinion on the role of marketing and even banking pollution rights as one option for
economic desires  in connection with the self-regulatory role of market in connection with the  Lead
Phasedown Program of the United States: 'Although the emission reductions from direct enforcement
were large, the sharp decline in new violations after 1986 suggests that enforcement had an even
larger impact through deterrence." (7)

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 118                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Therefore, the best alternative should be to strengthen cornmand-and-control mechanisms
while implementing a wide range of economic incentives, from tax incentives  to subsidies or
environmental labelling. These instruments  mean a transition into the direction of a reasonably
market-oriented approach. The OECD defines economic instruments in the following way:

       "Economic  instruments constitute one category amongst others  of  environmental
       policy instruments designed to achieve environmental goals. They can be used as a
       substitute or as a complement to other policy instruments such as regulations and
       co-operative agreements with industry,.,One basic objective of economic instruments
       is to ensure an appropriate pricing of environmental resources in  order to promote
       an efficient use and allocation of these resources."  (8)

       The best method of achieving compliance  among the market players should be to use
market-friendly measures that  orient the possible polluter in the direction of meeting environmental
requirements. In this respect there is a changing attitude towards harmonising economic development
purposes and environmental protection requirements. My intervention to the market may be used
as an incentive or disincentive.

2.2.2  Creating market incentives

       Although the creation of market  incentives  and instruments  is the primary chance and
" responsibility of the  state, we identify three  basic  types of economic means according  to the
cast—-who is performing the active role. The leading role could be undertaken by the state, by national
'and international financing institutions, or by the polluter itself. We have to clarify here that the
regulatory power ties in the state  in all of these cases,

2.2.2.1    The state
       The state is the main player in charges that mean payment for the impact on the environment,
 based on some quantitative aspects of this impact,  on the characteristics of pollution. Charges are
 also called fees. They have the following categories:
        •  Effluent or emission charges {fees paid on the basis of the quantity of emitted
           substances).
        •  User charges (fees for using natural resources, like water).
        «  Product charges (fees levied on certain product that certainly pollute the environment,
           thus ft has a direct connection with waste stream).
        •  Administrative charges (fees paid for administrative procedures).
        ••  Tax differentiation.

        The state is also the main player in subsidies given by the state, mostly based on the specific
 environmental budgets or funds to help the polluter  defray the cost of compliance, namely:
        »  Grants (that may be either reimbursable or free).
        »  Soft loans (offered by the state resources, like funds).
        •  Tax allowances.
        Together with subsidies,  the price systems and pricing certain natural resources or services
 should also be mentioned, where the state is formulating limits and controlling the prices.
        We separate here from taxes the use  of customs with the possible preferences and aversions.
        The full  picture requires  mention of enforcement incentives or penalties, and within this the
 role of non-compliance fees  or fines and performance bonds. The latter means payments to an
 escrow account set in the polluter's budget, where the bonds are to be set aside in order to be used
 for activities improving environmental quality.

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       Special, less incentive-like but market-oriented way of influencing environmental interests is
the regulation and possibilities—even financial—of using state property and state services,
       A more direct intervention by the state is the use of the different ways of giving direct financial
assistance to environmentally dictated solutions. Some  specific circumstance may give rise to this
kind of direct action.
       Ece-labelling should also be mentioned here as something developed on the basis of patent
law. Manufacturers  may receive  an eco-label, proving the environmental friendly attributes of their
product.
       A new experience in the field of state activities is the policy of "debt for environment swap"
of those states lending money to other states. This good example for a new and International market
incentive has been introduced in Poland in 1992 (9).

2.2.2.2    National and international financing institutions
       The national and international financing institutions are the main players in a number of ways.
The World Bank or the European Bank for Reconstruction and Development, for example, developed
strategies for their own role in the environmental protection. Of course, the domestic banks may use
the same methods, such as:
        •  Developing specific lending policies to private ventures.
        •  There is a chance of direct investing as taking an equity share,
        »  Useful market incentive can be if a bank refrains from giving guarantees.
        «  We also may add, first of all, in case of the international  financing institutions the
          role of advising and training.

        Of course, the intervention of financing  institutions may easily have  a much more negative
result, namely this can contribute  to disruption or pollution, through lending to comparatively less
advanced  technologies, businesses, or even  states, where democratisation could not reach  the
desirable  level,

2.2.2.3    The polluter
        The polluter is the main actor in using the following, partly state-regulated instruments:
        «  Deposit-refund systems, where the  state gives the framework, but  most of the
          action  is  laid on the  polluter. The given products appear in the market with a
          deposit, like the one on bottles, that is refunded when traded back or to someone
          who collects them.
        *  Market creation, and in particular the problem of marketing the pollution rights in
          combination with the bubble principle. Tradeable permits,  e.g., allow companies to
          trade  permitted  emission  rights with other companies,  and the  concept of
          'bubbles,' which means some geographic limit may be added.
        »  The offset approach is something close to market creation, with the difference that
          the agreement remains within the  same facility. Thus the facility may propose
          various approaches to meet the environmental objective. The result is that the
          facility may emit more from one substance trading in a less emission from another.
        «  Requiring compulsory insurance services  or, Instead, creating .pools for giving
          guarantees in case of possible liability.
        •  Finally, we should not forget the effect of self-regulation. Here I may mention issues
          like self-recordkeeping,  environmental auditing, development of environmental
          management systems, etc.

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 120                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 2.3    Quantitative standards vs. technology-based methods

       The last methodological question is how to define the permissible and acceptable level of
 pollution. One option  is to put somehow a quantitative ceiling on the emissions, so setting  a
 quantitative standard. Tine other method is to restrict the pollution in a way that the polluting activity
 receives some qualitative regulations, so to regulate the technology.
       Situated between legislation and the public administration regulation, quantitative standards
 present a challenge of translating environmental requirements into a numeric form in order to make
 enforcement programs easier. The efficiency of the standards always strictly relies upon the main
 purpose of quantitative standards and the monitoring capacity of enforcement administration. Here
 we mention standards only in the context of finding their  place in regulation in general. Standards
 can serve a role in  prevention or serve as the basis for liability or sanctions. We can distinguish first
 environmental quality objectives like emission or ambient standards that fix the limit using a kind of
 ecological bearing  capacity concept, and discharge or  emission standards that impose a fixed
 discharge  limit on the  emission of pollutants. The quality objectives or standards are goals at the
 same time and usually written in units of concentration. The discharge standards are connected with
 some specific periods  of emissions—mostly hours or days—and are attached to pollution sources.
 They limit  the  quantity of the discharge that a facility can  release into the environment. Also the
 discharge standards can be further categorised into two large groups: the group of product and the
 group of performance  standards. Product standards determine the substance or composition of a
- product, or the design and construction of a given product. Thus  when using product standards
 somehow the technology or the production itself is affected. The performance standards determine
 the levei of given pollutants that a plant may emit. Thus the  performance standards leave the question
 of technology open.
       - In environmental terminology they used to mention,standards of competence of operators or
 safety standards.  These regulations  represent an intermediate  level between  the traditional
 quantitative standards and the technology approach. These standards do not determine the quantity
 of substances, but  instead they set up  some kind of behavioural or proficiency levels.
        The technology-based methods try to regulate the  procedure, the course to the discharge of
 pollution in a way to limit or prevent the pollution as much as possible. These methods—some cali
 them also  standards, technology standards—require that  the  polluters use a particular type of
 technology to  control and/or monitor emissions. The most  well-known option is the best-available
 technology (BAT) option, which is used  also in the European Communities. The EC qualifies this BAT
 requirement as BATNEE-C: best-available technology not entailing excessive costs. Most of the time
 the relatively too-high esctra costs are used as a limit to unrealistic requirements. The American Clean
 Water Act in  its 1983 amendments used  the  BAT requirement  as "best available technology
 economically achievable".
        Another kind of technology requirement appears in the Clean Air Act 1990 amendments. That
 is the "good engineering practice." "Good engineering practice" means the high necessary to ensure
 that  emissions from the stack do not  result in "excessive  concentrations" of any pollutant in the
 "immediate vicinity" of the source," (10)  Also the American environmental regulations introduced such
 technology requirement as the BCT—best conventional pollutant control technology—from 1984 in
 the Clean Water Act rules. Under the .BCT policy the costs also  received a decisive role, "the
 reasonableness of  the relationship between the  costs of  attaining a reduction in effluents and the
 effluent  reduction benefits derived." (11)
        Of course, the technology requirements sometimes are too vague for regulating the emissions.
 Also these  requirements need in most  of the cases explanations and interpretation on  lower
 administrative  levels. If we add  that there are attempts in  developing countries or in Central anc
 Eastern Europe to  attach not only an "excessive" or "unreasonable" qualification to the technology
 but also some reference to the  present economic difficulties, which can serve as a good escape
 under the strict regulations,  there shall  be no doubt that the technology requirements alone are nol
 satisfactory and not always reliable. This also means that  sometimes quantitative standards may be

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
somewhat more documentable even in countries like Britain, where technology requirements have
always been more favoured: "We are entering a new era of legal formalism in relation to pollution
standards and objectives. The long-familiar preferred  approach of a legal framework concentrating
on  administrative structure and procedures, leaving  policy content to the realm of shadow
mechanisms such as circulars or technical notes no longer holds true." (12)
       Thus, our conclusion in the case of all the three methodological aspects is that the different
methods shall be used parallel and in their complexity. For countries in economic transition it is also
an  important lesson that there is no generally acceptable pattern of environmental regulation and
enforcement. If one takes the example of Britain, some years ago the technology requirements were
the winners, and nowadays  there is more and more  room for the quantitative standards. Also the
method of marketable pollution  permits  and rights require not only a dynamic  market but also
sophisticated enforcement agencies, who may take care  for the infringement of market behaviour.
       It is worth mentioning a recent American publication on exporting environmental protection:
"Conditions that have provided fertile ground for environmental protection in the United States include
cultural attitudes shaped  by affluence,  established free market institutions,  heavily developed
communication and other  infrastructures, private  industry sectors that seek profits from  managing
pollution and waste  disposal, and  industries that  have learned to incorporate environmental
considerations into their businesses. Such advantages are rare in Central and Eastern Europe and
are largely absent in the former Soviet Union." (13)
3     LIABILITY PROVISIONS, FOREIGN MONEY, AND PROPERTY ISSUES

       When determining what type of liability provisions should be employed in transition countries,
most of the possible answers are not exclusively situation-specific. Criminal liability may also exist,
administrative levies are  even more favoured than it is acceptable,  and economic  difficulties
sometimes limit the possible use of the tool of closing the polluting facilities. What is the most exciting
is to determine how to make a priority list between past damages and future anti-pollution strategies,
also how to allocate the  existing  limited resources.  If one speaks about the past environmental
damages, two major alternatives could be mentioned: polluter pays principle versus or together with
consumers pay principle.
       As an additional element for making a full picture in countries under economic transition, the
privatisation, first of all the involvement of foreign money, should also be covered. Liability provisions
shall have a different understanding if new owners are involved in a mass.
       Among the several possible options, mention should be made of the following:
       •  Who is liable after privatisation, concession licences.
       •  The liability for wastes, especially hazardous wastes—legal and illegal disposals.
       •  Who is liable for specific fields such as public transport, health-care, social services.
       •  How to create and use funds—government, local government, or business funds.
       Last but  not least,  the question of liability-guarantees should also be raised, like compulsory
insurance or joint pools of the polluters.

3.1    Polluter pays principle

       If  one takes first  the definition  of polluter  pays  principle, than the initial problem is to
understand the definition.  Under the  comprehensive concept of the principle,  polluter pays means:
"Anyone whose activities cause or are likely to cause damage to the environment shall bear the cost
of full preventive or restorative measures." (14)
       Polluter pays thus is interpreted in a complex way, as it covers all the responsibility to take
actions and to bear the costs and pay for the possible damages. The OECD explained this principle
in similar terms:

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122                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       "The Polluter Pays Principle ,„ implies that in general it is for the polluter to meet the
       costs of pollution control and prevention measures, irrespective of whether those costs
       are incurred as a result of the imposition of some charge or pollution emission, or are
       debited through some other suitable economic mechanisms, or are in response to
       some direct regulation leading to some enforced reduction in pollution." (15)

       From these definitions it  is obvious to come to the point  where the principle shall be
understood as a pool of all the  necessary legal measures,  in other words, complexity of legal
measures. If the costs are to be covered by the polluter, than the measures also belong to his sphere
of Interest. If the costs mean all the costs of possible preventive and pollution control measures, then
certainly the widest variety of legal responsibilities and liability shall be there.  Therefore, we do not
create a new principle of complexity of legal measures, but instead we interpret polluter pays wider,
corresponding with the present concepts.

3.2    Consumer pays

       Consumer pays as a principle means that the burden for past damages is not on the specific
polluter but on society. In the case of GEE countries or countries, where state  property exceeds the
average percentage, the polluter indirectly is the whole community, as state property has been taken
as the property of the community. In this respect, consumer pays has a different and  more specific
meaning as In the case of market economies.
       The basic puzzle here shall be how to provide funding for the restoration of the environment.
We have to learn in general what are the sources of the government environmental resources, knowing
that all the sources have the same origin, namely the state revenues grouped or allocated according
.to the interest of environmental protection. Sometimes the state revenues are  gathered in one sum
and reallocated according to tie different needs, in other cases these revenues are even collected
especially for satisfying environmental interests. The possible main bunches of environmental sources
can be:
        • State budget, also ttie division of tax income.
        » Different fees and prices for the use of environmental resources.
        « Financial sanctions for those activities, infringing environmental requirements.
        • Loans and credits.
        • Voluntary donations.

        The state budget is the simplest source of government resources, where the  income of the
budget is not altered particularly on the basis of environmental reasons. The  inside structure of the
budget  does  not  necessarily give enough  guarantee for using the  financial  resources  always for
environmental reasons.
        The special fees for the uses of different environmental resources are  serving  two functions,
they are economic incentives  and at the same time  they  provide  financial basis for  further
environmental programs. The revenues collected from sanctions are different from the fees, as they
also represent a  negative  classification of the given  activity, infringing the basic  environmental
requirements. The most exciting source here shall be the privatisation price or at least a part of it.
This problem  is addressed under 2.3. ......    .           —	
        The loans and credits are given—mostly from international banks, foreign governments, other
funds—to the government to fulfil environmental obligations. The credits of this kind always need to
be justified by later government actions. These loans "and credits can be managed separately or can
 be added to the funds. The debt for environment swap is a unique solution in this field.
        The voluntary donations are not given directly to  the government but may be given to the
funds, run by the  governments. The possibility of giving such donations is very small  today.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         125
       The next questions concerning the government resources are how to use these resources,
what are the conditions to use them, and how much they are connected to the specific environmental
purposes. More questions also cover the issue, whether it is possible and under what circumstances
to use the money designated to environmental assignments for other purposes. From that point of
view, the regulation of such resources giving or limiting the chance for reallocation or redistribution
is the most important. The environmental part of the state budget is the most vulnerable from that
respect, as this has the closest possibility to be used for other purposes than environmental. The
special environmental funds designated for specific purposes,  projects, or media  or the one
comprehensive fund—the method may be different—is more visible, and the regulations governing
the funds usually do not allow the use of resources for other reasons than environmental protection.
The other determining factor can be the method of control over the use of funds, where public
participation may have a decisive role. The more publicity is given to the reports on utilisation of the
funds, the less is the chance to misuse ihem.

3.3    Privatisation and the involvement of foreign money

       These questions are the specialities of countries  in economic transition, as both  are  the
problems representing a mass development. Privatisation  here has its own puzzle, as possibly not
every new owner is willing to undertake the liability for past environmental damages. Theme No. 5 of
the Second International Enforcement Conference has touched upon the problem. Here it has been
mentioned, among others, that "investors need a level of certainty. As the liability or past environmental
damages is particularly  important, among the solutions one possible way is to create funds from
purchase prices." (16)
       The issue of involving foreign money covers at least the problems of foreign direct investment,
privatisation, and concession licences. There are several options to handle environmental protection
needs of this kind, such as:
       •  To impose comparatively less strict environmental requirements in order to attract
          foreign money.
       •  To use requirement  similar to existing and new facilities, which  represents a
          generally lower level of standards.
       •  To use higher level (e.g., in CEE countries EEC)  standards for new facilities and a
          graduated compliance schedule for existing ones.
       •  To use high standards immediately, which embodies the hazard  of numerous
          bankruptcies in the case of existing own facilities.
       In the author's view the third alternative should be supported also by banking policy. Anyhow,
clear decision-making in this question is necessary  to give firm basis  for business planning.
       More from an ethical liability point of view, the involvement of  foreign money may also have
the threat of exporting pollution, exporting wastes, exporting polluting industries. This ethical problem
may also lead to a legal liability if either  the importing or the exporting  countries are regulating the
arrival of foreign money, foreign businesses. The best way would be to require from the newcomers
to use the same standards as in their home countries. The other major liability problem in this field
is the illegal  export of  pollution, mainly hazardous  wastes.  Under the  heading of 'secondary
raw-material" or "recycling," possibly a great and uncontrolled mass of waste is crossing the borders,
from the direction of developed countries to CEE or developing countries.
       The experiences of the CEE countries could prove that the export of  pollution is a real danger
in cases of smaller of even medium-size foreign industries, while in the case of big companies or
multinational enterprises the situation is totally different. The smaller businesses have fewer assets
to invest in environmental improvement and rather think in shorter terms  of profit-making. On the
other hand the big companies have their own environmental management policies  and their own
international environmental standards, and moreover they think in medium or long term investments.
Sometimes it is very difficult to understand the reality of this notification, as it appears in the following:

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 124                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 "However,  the  'greens' believe that U.S.  companies are 'exporting1 pollution.  This perception is
 extremely difficult to overcome, since these people have never seen how a well-controlled industrial
 operation can function... In summary, the basic and overriding objective in international operations
 is that  no operation, activity,  or product, when  properly conducted or handled, should cause a
 significant or permanent adverse effect on health or the environment." (17)
        The abovementioned business planning point of view requires proper regulation of exporting
 industries, techniques, and products. This regulation leads to predictability and stability in economic
 development, both being essential conditions of future enforcement of liability provisions.

 3.4     Property situations

        The countries in economic transition all try to build a market economy. No market economy
 can live in a situation, where the state property is overwhelming. This  means the  necessity of
 rearranging the proprietary conditions. The most important tool is the privatisation or reprivatisation.
 Here I  do not  want to come back to the privatisation  problem,  but only to  the question of new
 proprietary environment. A great number of new owners show up, first of all in land  ownership.  I
 examine here two related questions: the limitation of property rights and the compensation for this
 limitation.
        The limitation of property rights, first of all, of freedom of using property,  is a delicate question
 in countries where these freedoms were more or less neglected. The rule of law state and the market
 economy for most of the people also mean the freedom of enterprise and the freedom of property.
 From that perspective, the totalitarian state may be more effective from an environmental point of
"view, with neglecting freedoms, even personal integrity.  Thus the  problem has an inherent political
 interpretation as well.  Anyhow, in modern societies it is impossible to predict the total freedom of
 property,  likewise it is meaningless to speak about total sovereignty in international relations.
        Environmental consideration, such as social security or public health, cannot work without direct
 or indirect interference into property rights and freedoms. In  modern societies these environmental
 considerations are even getting broader and  broader in connection with  the growth, of ecological
 degradation. A recent manual on environmental law sums up the historical development as follows:

        "In most states, private property may be expropriated  by the state for the creation of
        nature  reserves or public trusts, or servitudes may be established, such as height
        restrictions on buildings,  which restrict property use  for the benefit of  others. The
        concept of neighbourliness, linked to the tort of nuisance, serves to limit potentially
        harmful uses of property. European states vary in their approaches to these issues
        and the degree to which the rights to private property owners  are subordinated to
        environmental  concerns." (18)

        These  restrictions  are easier to put into use in the case of  transition economies if the
 environmental concerns are present from the very beginning. Later it should be more difficult to restric
 the  newly provided freedoms.
        One has to investigate the compensation for the restrictions of property conditions togethe
 with the limitations themselves. The freedom of property, the freedom of the owner to use his property
 should not be  absolutely free. If we accept these limits,  then the next step should be to accept tha
 the  compensation is not always a substantive element of these  limitations. Environmental values
 such as the restriction of the use of chemicals in agriculture due to nature conservation considerations
 are implicit components of rights and obligations. Above this conceptual explanation there is  als<
 the  practical argument against the total compensation,  that is, the problem of high costs, which ii
 even more vital in case of countries in economic transition than in developed countries.
        Those  restrictions that seriously affect the  use of property need to be compensated. If w<
 take the example  of nature conservation interests, then the sudden change in  priorities that leads t<
 new and costly changes in agriculture may result in compensation.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         125
       Both the issues of property restriction and the necessity of compensation are vital parts of
the new property conditions and need a clear-cut regulatory approach. Like liability problems, property
conditions require predictability and stability. It is not enough from an enforcement point of view to
leave the question open, as it happens even today in most of the  CEE countries.
4      PUBLIC ADMINISTRATION ORGANS AND PUBLIC PARTICIPATION

4.1    Organisation at regional or local levels

       When one examines the structure of different national state organisation, there are federal
states with to some extent independent regions or states and unilateral states with one state centre
only.  In the case of a federal state, the abovementioned national  organisational level  may be
duplicated, as there can be a federal and a state level structure and organisation. We do not go into
the details of this organisational issue, but it has to be mentioned that federal states have more
difficulties with coordination than unilateral states, but on the other hand the states may have a great
positive effect on each other's  legal development in the field of environmental protection.

4-1-1   Balancing centralisation/decentralisation interests

       The general question of state organisation is to decide in the problem of balancing
centralisation interests with decentralisation interests.  In a democracy all levels of government have
to be involved. Some even say that if possible a governmental task has to be Implemented on the
lowest level of administration possible. Of course this view simplifies the problem. True, however, is
that a too centralised approach of the division of powers in a state will not work well.
       Decentralisation exists in two ways; general and functional. Most decentralised authorities are
general authorities for whom the implementation of environmental policies is only one of their tasks.
They have a general governmental  task insofar as  their task is not limited by the task of higher
authorities or by the task of a special authority. These limitations  may appear in a Constitution or an
Act. These general  decentralised institutions  both have a "regional" and/or "local" government and
a council that is elected. Functional decentralisation is concentrated to one special task. For example,
the task of water management is often given to independent water authorities.
       As a. consequence any kind of legislation must regulate the rights and obligations of regional
or local governments because, according to  the act on local governments, only the Parliament may
refer  any responsibilities to them. Local governments are functioning  in federal or unilateral states
either. Their role  is  to represent the interests of the given community, to undertake public  services
(like water supply services), and to solve local administrative issues through their regulatory and
public administration functions. Local governments are organised both at regional and local levels,
where their functions and authorities should be different. The best would be to allocate services,
authorities, other functions all in a way to meet the significance and  magnitude of the given
responsibility. Of course, a number of political interests influence this organisation.
       Of course, there are a number of problems that argue against decentralisation. One of them
is that other local interests next to the interest in  a good environment play an important role in the
decision-making of  this kind of general democratic decentralised government on a local level. Short-
term  economic interests such as the possibility to get a new factory and therefore new employment
are thought to be  more important. Here is a serious problem. On  the one hand  a democratic
government is needed to take  environmental policy seriously for people will not accept ft otherwise.
On the other hand other interests can be thought to be more important in a democracy, so the
environmental policy will  not be a priority,
       The combination of various arguments results in choosing the regional government for some
environmental tasks. On  the one hand there stands the need to  know the local situation and on the
other hand to avoid the conflict with other local interests. On the one hand  there is the need of

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126                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
democracy and the involvement not only of an elected council but of other people too and on the
other hand the need to place the environmental policy in a wider context then only locally. There is
the need to work effectively and to have a civil service large enough to have the various necessary
scientific disciplines, All this results in most countries in a division of the various legal instruments of
environmental law over three layers of democratic authority..
       Most  literature takes the following principles as guiding rules for finding the proper balance
of centralisation-decentralisation:
       • Small  sources  of nuisance/pollution can be dealt with on a local level  by either
         permits or by control and enforcement of the implementation of nationally made
         general rules for special categories of installations.
       « Permits for big installations are given on a regional level, which preferably would
         mean a regional government.
       • Ranning and programming of environmental policy and enforcement on every level
         of administration according to the tasks given.
       « General legislation on a national level.

       The general rule is: The lowest possible level of administration is chosen for a specific task.
Decentralisation  is given priority over deconcentration (19).
       We take  as a last important issue the necessary coordination of local government actions, it
is an important conclusion that the system of regional-level local governments or at least regional-level
Institutionalised local government.cooperation is vital. White generally it is less viable  to decentralise
the environmental authorities and decision-making capacity to smaller villages  or towns, it would be
essential to provide the basis for decentralised and democratic division of power, This level of local
government could be capable of solving environmental problems  representing also  the regional or
local interests. The necessary steps for this end should be, if we take all the abovementioned problems
into consideration:
       • To  find the ways of making local  governments more interested  in environmental
         protection.
       » To  oblige the deooncentrated environmental authorities to help to promote the
         cooperation between local government and also between these regional  organs
         and local governments.
       • To  promote the cooperation of local governments  in environmental  interests also
         with the help of proper legislation.
       * To  establish or reinstate the special status of the regional level local  governments.
         This would mean exclusive regulatory and decision-making, so authority rights and
         duties.
       • Together  with the  abovementioned requirements, to regulate also the division of
         power between local and regional governments and also between the decentralised
         and deconcentrated organs.

4.1.2  Division of environmental responsibilities

      _. The national environmental protection authorities  together with their regional or even
administrative organisation—such as the environmental inspectorates—have been and are organised
for the different environmental tasks. In the creation  of this organisational structure, the size  and
geographical situation and general  state of balancing state  power of the country are decisive.
Therefore,  the ways of organising the environmental administration may be different, but one organ
is  missing:  the environmental emergency  service. This organisational  system means the
deconcentration of state  power, that is  to leave the authorities in the hand of the central organs but
to authorise the regional or local levels of the same state  organisation for exercising  different
enforcement jobs so as to allocate the authorities.

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       The  regional  or  focal organs of the. central state administration  have two  groups  of
responsibilities: those tasks that are rather connected to the  making  and  management  of
environmental policy, and those tasks that are more practical, so the public administration authorities.
       The  execution of the tasks that belong to the first group makes it possible for public
administration to solve environmental problems on the basis of comprehensive longer-term concepts.
For this reason the regional organ (inspectorate) in  its territorial jurisdiction among others:
       •  Monitors  the condition of  the environment,  evaluates  the related  data,  and
          forecasts the changes.
       •  Organises  and operates the regional information  system  on the environment
          (monitoring), cooperates with other information system, and provides data itself.
       •  Realises professional environmental coordination for the whole of its jurisdiction.
       •  Provides the laboratories requisite for the work of public administration.
       •  Carries out operative tasks related to the elimination of environmental damages.
       *  Cooperates with local governments in matters related  to environmental protection
          and  helps  local  governments perform  the   environmental tasks within their
          jurisdiction.
       The other large group of tasks of the environmental inspectorates contains the administrative
authority,  official tasks, i.e., the tasks  to be performed by public authorities. The area of individual
administrative tasks usually is very large. Because it is impossible to enumerate them all  here, we
shall limit ourselves to surveying the most important ones, knowing  that there  are a number of
country-specific differences:
       •  Right of granting permits (e.g., the neutralisation of hazardous waste).
       •  Right of imposing obligations.
       •  Right of granting exemptions from obligations  imposed by the authorities or trie
          statutory regulations.
       •  Right of prescribing the closing down of a plant.
       •  The determination of regional or individual emission values,
       •  The imposition of environmental penalties.
       •  The limitation of activities causing pollution.

4.2    Public participation

        Public participation in regulation, decision-making, and enforcement is a general principle of
the protection. The right of public participation shall create an obligation towards state power, state
organs. As we do not examine this problem under other environmental law problems, in the following
we summarise the major characteristics of the whole issue. Public participation can be justified among
others by the following basic concepts:
        •  Self-determination, which means that nations or groups or individuals  have the
          right to determine their own future and have the right to decide  upon their own
          property.                        :
        •  Right to environment as explained above.
        •  Democracy, which means making decisions by the opinions of the majority while
          also safeguarding the rights of the minority.
        •  Public property, because some elements or  parts of  the  environment can be
          characterised  as being public property. But even in those areas  that are private
          property, a kind of public utilisation is also possible, giving room again for public
          involvement. The example of water rights is important.

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128                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       » Public health, as health problems can be  either physical or mental. The  link
         between the environmental pollution causes  and human health consequences is
         sometimes perfectly clear but in a number of other cases less so.

       When discussing  public participation,  mention should  be made  of the use of public
participation, whcih covers issues like:
       1.  Just decision-making, as just decisions require a careful balance of interests and
          a careful evaluation of  a given situation,  but it is always difficult to find a final
          decision that shall be satisfactory to all the  possible parties, A real just decision
          never exists, only a more or less just decision. Our aim could only be to push this
          chance towards "more" from "less,"
       2.  To receive support from the public, among others also involved in decision-making.
          This support may mean:
            -  An initiative for the future direction of state activity.
            -  The easy acceptance of state decisions.
            -  The above mentioned two shall support the creation of credibility.
            -  A better possibility of compliance.
       3.  To receive information from the public. Factual information is the most important
          in local issues, where the local people shall have more knowledge on the particular
          situation than for example the regional environmental inspectorate.
       4.  Assistance in control and enforcement in addition to using it as a temporary and
          occasional source of information.
       5.  To live  in peace with the public, to create a better image.
       Finally it is also important to highlight the  conditions of public participation,  giving only a short
summary of those legal preconditions for public participation, that are essential for concrete public
participation:
       •  First, access to information has to be regulated together with all those aspects
          mentioned in the relevant points above, like determining  the terms of business
          secret and providing legal remedies,
       *  The general and detailed rules of the obligation to involve the  public in legal
          regulation and decision-making are missing today. This is the classic equivalent of
          public participation.
       »  There is no obligation to answer public suggestions or questions, although it is
          essential to prove somehow the understanding on behalf of the state organs,
       •  Basic regulations can and should be interpreted in a way to give general standing
          for the  interested public in administrative  procedures,  but due  to possible wilful
          misinterpretation, it  is essential  to determine clearly or to make concrete the
          standing in administrative law.
        ENDNOTES AND REFERENCES

  1, The Meriam-Webster Thesaurus, Springfield, Massachusetts, USA, 1989, p. 584,

  2. The Penguin English Dictionary, 1985-86, Penguin Books, 1985, p. 887.
  3. French, H.F, Green Revolutions: Environmental Reconstruction in Easter Europe and the Soviet
    Union, WorldWatch Paper 99, November 1990, p, 6.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         129
 4, The Environmental Protection Act 1990 in Britain provides a good example for this concept:
    "...Part I of the Bill introduces the concept of integrated pollution control, and for a specified and
    limited number of industrial processes will provide a common set of legal controls over physical
    emissions of whatever type, be they to land, air, or water." Macrory, R., Environmental Law -
    Shifting Discretions and the New Formalism. In:  Frontiers of Environmental Law, Warwick Law,
    London, 1991, p. 11.

 5. Dudek, D,, Stewart, R.B., and Weiner, J.B., Environmental Policy for Eastern Europe: Technology-
    Based Versus Market-Based Approaches, December 1991, p. 13.

 6. Section I. Social and Economic Dimensions B.  Providing an Effective Legal  and Regulatory
    Framework, see footnote 1.

 7. U.S. Environmental  Protection Agency,  Office of Enforcement, Principles of Environmental
    Enforcement,  February 19, 1992, pp. 11-37.

 8. Environmental Policy: How to Apply Economic Instruments, OECD,  Paris, 1991, pp. 10-11.
 9. "The idea was  born in spring 1991. At this time Poland achieved a 50 %  reduction of  Its
    outstanding foreign debt. The Paris Club agreed that the additional  10 % of Poland's debt could
    be swapped in  a series of bilateral voluntary agreements between Poland and each of the  17
    creditor countries of the Club. The Polish government used this opportunity to launch a large-scale
    "debt-for-environment"  programme that would target investment projects identified as having
    international priority in four areas..." Paper of Maciej Novicki, director of ECOFUND, p. 2, delivered
    at the General Assembly meeting of the Regional Environmental Centre for Central and Eastern
    Europe, December 2, 1993,
 10. Findley, R.W. and Farber, D.A.,  Environmental Law, Nutshell Series West  Publishing Co., 1992, p.
    115.
 11. See above, p. 139.
 12. See Macrory,  pp. 16-17,

 13. Bell, R.G., "Exporting Environmental Protection,"  Environmental Law Reporter, December 1993,
    p. 10,701.
 14. Article 10 of  the Council of Europe Draft Model Act. The Council of Europe - Directorate  on
    Environmental and Local Authorities began to draft a model act especially for the use of GEE
    countries in 1992. The present paper uses the September 1993 version.
 15, Note on the Implementation of Polluter Pays Principle (OECD, Paris, 1974). McLoughlin, J. and
    Bellinger, E.G., Environmental Pollution Control, International Environmental  Law and Policy
    Series, Graham and Trotman/Martinus Nijhoff, 1993, p. 146.
 16. Summary of Theme No. 5., Economic Development and Ownership Changes, Proceeding of the
    International Conference on Environmental Enforcement, Volume IS, September 22-25, Budapest,
    Hungary, p. 224.

 17. Friedman, F.B., Practical Guide to Environmental Management,  Environmental Law Institute
    Monograph, Washington, 1991, p. 66.
 18. Kiss,  A.  and  Shelton,  D., Manual of European  Environmental Law, Grotius Publications  Ltd.,
    Cambridge, 1993, p.13,
 19. Lambers, C., Comments on "State of the Environmental Law in Hungary," Report of the Hungarian
    Environmental Management and Law Association, Groningen, March 1993.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT '                       131


INTEGRATED POLLUTION CONTROL IN ENGLAND AND WALES

BRYCE, DOUGLAS

Her Majesty's Inspectorate of Pollution, Romney House, 43 Marsham Street, London, United
Kingdom


       SUMMARY

       This paper describes the principles of Integrated Pollution Control (IPC).  Also mentioned are
new procedures  introduced  by Her Majesty's  Inspectorate of Pollution (HMIP) to carry out
environmental assessments in  determining IPC applications. The paper illustrates how IPC and the
concepts of BATNEEC and BPEO can be applied in regulating complex industrial processes.


1      HMIP's ROLE

       HMIP protects the environment by enforcing regulations to prevent pollution.
       In carrying out this role HMIP will:
       • authorise, enforce, inspect and monitor under the relevant legislation;
       • consult openly and widely and report on its performance;
       • provide expert advice to Government;
       • initiate R&D and disseminate its results; and
       • work cost effectively to the highest professional standards.


2     INTEGRATED POLLUTION CONTROL

       The~sfafut6fy basis lor Ihtegrafecl "Pollution  Control (IPC)  is" provided in "Part 1 "of the
Environmental Protection Act 1990.  IPC requires that no prescribed process can be operated without
a prior authorisation from HMIP.  The prescribed processes to  be controlled under IPC and the
timetable for their introduction into  the new systems (see Annex 1), as well as the  prescribed
substances (see Annex 2), are set out in detail in the Environmental Protection (Prescribed Processes
and Substances) Regulations  1991.
       The Environmental Protection (Applications, Appeals and Registers) Regulations 1991 outline
the procedures for applying to HMIP for authorisation, the information required by HMIP, the bodies
which HMIP must consult and requirements for advertising the application and for placing relevant
information on a public register.
       HMIP Is required either to  grant an authorisation, subject to any conditions which the Act
requires or empowers it to impose, or to refuse it.  HMIP must refuse it unless we consider that the
applicant will be able to carry  on the process in compliance with the conditions in the authorisation.
       In setting the conditions, Section 7 of the Act places HMIP under a duty to ensure that certain
objectives  are met.  The conditions should ensure that:
       •  The best available  techniques {both technology and operating practices)  not
          entailing  excessive cost  (BATNEEC)  are  used to  prevent  or,  If that is  not
          practicable, to minimise the release of prescribed substances into the medium for
          which they are  prescribed;  and to   render  harmless  both any prescribed
          substances which are released and any other substances which might cause
          harm.

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132                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       • Releases do not cause, or contribute to, the breach of any direction given by the
         Secretary of State to implement European Community or international obligations
         relating  to  environmental protection,  or  any statutory environmental  quality
         standards or objectives, or other statutory limits or requirements.
       • When a process is likely to involve releases into more  than one environmental
         medium (which will probably be the case in many processes prescribed for IPC),
         the best practicable environmental option (BPEO) is achieved, ie ttie releases from
         the process are controlled through the use of BATNEEC to give the least overall
         affect on the environment as a whole.

       The concept of BATNEEC contains an inbuilt dynamic towards higher standards because as
available techniques improve so will environmental protection standards be raised.


3      iPC APPLICATIONS

       In applying for an IPC authorisation an operator should:
       » provide full information on the selection of primary process, particularly for a new
         plant;
       • provide evidence that the requirement to use BATNEEC will be met;
       • select a combination of primary process.pollution abatement techniques and waste
         treatment and disposal which constitutes the BPEO; and
       • provide a justification for the BPEO selected and for all likely releases.
4     CHIEF INSPECTORS' GUIDANCE NOTES

       Process operators, and indeed the public, will require an assurance that BATNEEC is applied
in a rational and consistent way.  BATNEEC standards for each class of IPC process are set out in
published guidance notes issued to Inspectors.  In preparing the notes HMIP reviews available
techniques internationally as well as tapping industry's own expertise and experience.
       The aim of the Guidance Notes is to provide Inspectors (and Industry) with the main emission
standards for prescribed substances arising from each process.  They also outline the  minimum
standards that are expected to be attained by existing plant, and what constitutes BATNEEC for new
plant and processes.
       The  Guidance Notes take into consideration the results of BAT research reviews that have
been commissioned by the Inspectorate. A wide range of reviews of BAT have so far been carried
out Among other things, the notes give guidance on;
       •  the general provisions of IPC;
       •  the timescale for updating existing plants to new plant standards;
       •  definition of substantial change;
       •  BATNEEC/BPEO process/abatement techniques;
       .•  release levels corresponding to those techniques; and    .  •. -----  ..
       »  compliance monitoring.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                       133
                         Application submitted
                         Application received
                         Commercial
                         confidentiality
                         determined by HMIP
                         within 14 days
                     Appeal to SOS
                     suspends application
          Applicant advertises
          application in local
          paper not less than
          14 days and not more
          than 42 days from
          date application Is
          made
HMIP places
application on public
register
HMIP sends application
to statutory consultees
within 14 days
                                                                  Statutory consultees
                                                                  have 28 days to respond
                HMIP secure further
                Information from applicant
                if necessary
                                  HMIP consider all responses
                           HMIP determine application/Issue authorisation
 Figure 1.  Applications main steps and timetable.

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134                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
5      ENVIRONMENTAL ASSESSMENTS FOR IPC

       HMIP  is developing  a framework for the assessment of environmental harm arising from
release from  prescribed processes designed to yield the environmental information required  to
establish the site specific: BATNEEC.  It consists of a number of elements, for example:
       •  the identification and quantification of releases;
       •  determining whether releases comply with statutory emission limits;
       •  a scoping exercise to identify environmentally significant releases;
       •  determining  whether  the  releases comply with  statutory  environmental  quality
         objectives;
       •  determining the environmental acceptability of the releases;
       •  identifying the BPEO  from a  number of environmentally acceptable process/
         abatement options; and
       •  identifying the process and environmental monitoring requirements.
6      PRINCIPLES OF THE IPC ENVIRONMENTAL ASSESSMENT PROCEDURE

       A prescribed process should meet the standards set out in Chief Inspectors Guidance Notes,
either those actually described in the relevant note, or one which achieves an equivalent or better
standard.   The operator should indicate the range of  process/abatement  options considered in
deciding on the eventual choice. If an option is proposed that clearly falls below the best practicable
environmental option then the operator should justify the choice in terms of cost effectiveness, i.e.
by comparing the cost and environmental implications of the preferred and any discounted options.
It will be for the site inspector to assess whether or not sufficient justification has been provided,
perhaps by carrying out a separate assessment.

6.1     Assessment of harm under integrated pollution control

       When Integrated Pollution Control was first introduced in April 1991 only general guidance on
how environmental assessments for IPC should be conducted was available. Several fundamental
questions were posed by the legislation and accompanying regulations i.e., how should an operator
demonstrate that the choice of process represented the Best Practicable Environmental Option in
accordance with section 7 (7) of the Environmental Protection Act 1990?  Also, what kind of
environmental information should an operator provide to demonstrate  that no harmful effects on the
environment occur?  And  how should  inspectors use this information  in determining an  IPC
application.
       The answers to these  and  related questions are  by no  means straightfoward as recent
experience shows.  According to a recent study of the applications  for which authorisations were
issued by  1 April 1993, only 37% modelled the dispersion releases,  and only 23% contained  any
background environmental data such as ambient pollution levels.  Just 12.5% of applicants offered
any meaningful assessment of the  impact on the local environment and eco-systems.  Very few
considered the risks of groundwater or site contamination. The ENDS reports goes on to say  that
most applicants have failed to demonstrate that  releases will be  rendered harmless and that only
24% of applicants gave even a brief consideration of the best practicable environmental option.
       The challenges facing operators and the Inspectorate  was how to provide the kind of
environmental information demanded by the legislation?  It is clear from the objectives given in s.7
of the Environmental Protection Act (1990) that a means for assessing harm is required by HMIP for
use in making regulatory judgements.  Within the context of the Act 'harm' means:

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                               135
       'harm to the health of living organisms or other interference with the ecological systems
       of which they form a part and, in the case of man, includes offence caused to any of
       his senses or harm to his property; and 'harmless' has a corresponding meaning'.
       However, the Act does not define the nature of the effects which may be considered harmful
or the level in the environment at which they may occur. Therefore, to overcome these difficulties a
practical approach to the assessment of harm has been devised and  is described  in the following
section.
       The  proposed method for  assessing  the level  of harm caused by individual releases is
illustrated in Figure 2.
           Intolerable
           Tolerable
           Negligible
Predicted Environmental
Concentration of release
(Including background)
                                                     EQS (or EAL set by HMIP)
                                                     Threshold value
           Figure 2.  Basis for decisions on the acceptability of releases.
       The intolerable level is defined by either a statutory limit such as an Environmental Quality
 Standard for releases to air or an Environmental Quality Objective for those to water. In the absence
 of a statutory limit for a substance, an interim, Regulatory Assessment Level (RAL), will  be set
 by HMIR The RAL would provide guidance to operators and inspectors on the maximum tolerable
 environmental concentration of a pollutant. The exact basis for setting an RAL needs to be agreed,
 but it might be  envisaged that they would be set with the eventual EQS in mind.
       The threshold value used to determine whether or not a release is significant is set at a
 level where we  are confident that the effect on the environment is negligible.  An example might be
 a factor of 100  less than the EQS (or  RAL). Again the threshold value would be developed by HMIP
 as a guide to operators and site inspectors.

 6.2    Best Practicable Environmental Option (BPEO)

       Where a process involves the  release of substances to more than one environmental medium
 the Inspector will need  to determine  whether  the proposed operation represents the  BPEO  for the
 pollutants concerned. The BPEO can be considered as:

       "the option  which for a given set of objectives, provides the most benefit or least
       damage to the environmental  as a whole, at acceptable cost, in the long term as well
       as  the short term, as a result  of releases of substances from a prescribed process".

       The modification, highlighted by italics, has been added to bring  the definition explicitly within
 the context of Section 7(7) of the Environmental Protection Act which limits the scope of the BPEO
 to consideration of substances released  by the process.
       The approach outlined above to assess the tolerability of releases can be used to assess the
 Best Practicable Environmental Option. Where tolerable significant releases occur (see Figure 2)
 to more  than one environmental medium we can compare process/abatement options in an overall
 environmental  (I3PEO)  context. Each significant release can be normalised  by expressing the
 predicted environmental concentration as a percentage (or  proportion) of the EQS (or Regulatory
 Assessment  Level).  The proportion  of the EQS/RAL utilised by each  significant  release can be

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136                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


summed to create a tolerability quotient (TO) for each medium, which is then used to derive a BPEO
index for a specific process/abatement option.  This index would be used to establish the best option
from an environmental protection viewpoint.

6.3    Tolerability quotients and the BPEO

       i)   For a tolerable single release
                    PEC
          TQ = ot .....  .f     (PEC - Predicted Env. Concentration)
                StatutoryLimit     v                               '•

       ii)  TQ for all tolerable significant releases to an environmental medium

          TQW = TQa + TQb... + TQi     (for  a + b ...i releases)

       iii) BPEO Index

                               TQW'ATB' + TQ(WND)

       iv) Best environmental option (BEO) from a range of environmentally tolerable options.

           BEO = Lowest BPEO index


 6.4    Site specific BATNEEC

       The BPEO index would be used for comparative purposes when examining the economic or
 NEEC aspects to determine the site specific BATNEEC option.


 7     ENVIRONMENTAL ASSESSMENT PROCEDURE

       Having established the main  principles, it is necessary to  develop a robust regulatory
 procedure. This should minimise the effort required by operators in preparing an application and by
 inspectors in assessing and confirming BATNEEC. It should also provide an audit trail documenting
 how the key decisions are" reached.  The stages in the procedure are  as follows:

       STAGE 1: SELECT PRACTICABLE PROCESS/ABATEMENT OPTIONS

       The operator should select a range of techniques to be examined. These should be consistent
 with standards outlined in the appropriate Chief Inspectors Guidance Notes.  Each option would be
 examined under Stage ID.

       STAGE II: ENVIRONMENTAL (BPEO) ASSESSMENT


       Step 1:  Identify pollutants released
       For a specific  process/abatement  option identify the unavoidable releases of
       prescribed (and other potentially harmful) substances.  Establish the release rates
       under start up, normal and abnormal operation.

       Step  2:  Compute predicted environmental concentrations (PEC) to  establish
       significant releases.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          137


       Use basic dispersion models to predict the maximum environmental concentration of each
release. Add to this the actual or estimated background concentration of the pollutant at that point,
       Compare the predicted environmental concentration for each release with any statutory  limit
(EQS), or regulatory ceiling (EM.) and the threshold level. (Those options resulting in a breach of the
statutory limit would be automatically discounted). Those releases above the threshold level are the
significant releases, as indicated in Figure 3.  Where a release results in a particularly high PEC
compared with the environmental standard, the Inspectorate might wish to examine this In more detail
to reduce any uncertainties and to examine alternative process/abatement options.

                        Intolerable  Xi                             X1 = unauthorisable
                                                 , Statutory limit
                        Tolerable   Xa                            Xa = significant (tolerable)
                                                                     release
Predicted Environmental
Concentration for
each release
                                                . Threshold
                        Negligible  Xs                            X3 = insignificant (negligible)
                                                                     release
 Figure 3,  Tolerablllty of releases from prescribed processes.
       Step 3:  For significant releases establish the  normalised tolerabilily quotient and
       calculate the BPEO index.
       The PECs for significant release should be confirmed using more comprehensive predictive
 models.   Releases  normalised  as a percentage of the statutory  limit  (or interim Environmental
 Assessment Level, EAL) to give the Tolerability.Quotient (TQ). TQs for significant releases to all media
 summed to give the BPEO index.

       STAGE III:  DETERMINE SITE SPECIFIC BATNEEC OPTION

       From the range of environmentally tolerable options select the site specific BATNEEC Option.
 If the choice has the lowest BPEO index (greatest environmental protection) then no comparative
 economic analysis is needed,  if not, then the reason for rejecting the more environmentally beneficial
 options should be justified in terms of cost effectiveness.
       No formal rule for selecting the BPEO option can be prescribed, expert judgement will almost
 always be necessary. However the application of cost-effectiveness analysis assists the operator by
 identifying a 'break-point' where the costs of further reductions  in pollution potential  start to rise
 significantly. To do this it  is important to  have a quantitative measure of the environmental
 consequences of the releases involved.  This can be done by utilizing the information on the relative
 harm of different releases to derive an integrated environmental index.  Figure 4 shows the costs and
 environmental effects (indices) for a range  of different process  options/techniques, 0 to 4, for a
 hypothetical product.
       A BPEO or environmental index derived  from  emission  levels is shown for  each option,
 including the current operation which is the base case. The operator might consider Option 3 as
 representing the site-specific BPEO even though Option 4 has a better BPEO index value, on the
 basis of the higher incremental  cost entailed at that site in attaining the environmental benefit of
 Option 4.
       Table 1 Is an example of how the incremental costs of pollution control can be demonstrated.
 Other things being equal, in this case it might be be concluded that the site-specific BATNEEC is
 option 3, because of the doubling of incremental cost to achieve any greater improvement.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                Annuallsed
                Cost
                                                       Best
                                                       Environmental
                                                       Option   4 H
                              Base
                              Case
                                0 I
                                         Environmental Index
Figure 4.  Principles for establishing the site-spectfte BATNEEC option.
Table 1. Illustration
Option
Base case
(uncontrolled)
Option 1
Option 2
Option 3
Option 4
of the Incremental
Equivalent
Annual Cost
£0
£20,000
£50,000
E1 00,000
£200,000
Cost of Pollution Control
Incremental
Improvement
in BPEO Index
—
1
1
1
1

Incremental
Cost
—
£20,000
£30,000
£50,000
£100,000

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        139
       CONCLUSION

       HMIP is developing its portfolio of information about the technology available for pollution
abatement of  industrial processes with a view to providing its inspectors with guidelines on
internationally recognised standards of good practice. HMIP is also planning a research programme
to establish methods of characterising and quantifying the impact of pollutants on air, land, or water
to allow comparative evaluation of cross-media process options. This is in addition to an extensive
programme of  research to assess the impact of alternative radioactive waste disposal systems.
       REFERENCES         .            :

 1, The Environmental Protection Act 1990, HMSO.

 2. The Environmental Protection prescribed Processes and Substances) Regulations 1991 SI No
   472, as amended  by the  Environmental Protection (Prescribed Processes and Substances)
   (Amendment) Flegulations 1992, SI No 614, HMSO.

 3. Integrated Pollution Control - A Practical Guide, Department of the Environment, Marsham Street,
   London.

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140
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
ANNEX 1
TIMETABLE FOR IMPLEMENTING INTEGRATED
EPA
Sched. 1
Ref
1.3
1.1
1.2
1.3
1.4
5.1
5.2
5.3
3.1
3.2
3.3
3.5
3.6
4.1
4.2
4.7
4.8
4.3
4.4
4.6
4.9
4.5
Process
Fuel & Power Industry
Combustion (>50MWth)
Boilers and Furnaces
Gasification
Carbonisation
Combustion (remainder)
Petroleum
Waste Disposal Industry
Incineration
ChemicaS Recovery
Waste Derived Fuel
Mineral Industry
Cement
Asbestos
Rbre
Glass
Ceramic
Chemical Industry
Petrochemical
Organic "
Chemical Pesticide
Pharmaceutical
Acid Manufacturing
Halogen 	
Chemical Fertiliser
Bulk Chemical Storage
Inorganic Chemical
Comes
within
IPC
1.4.91
1.4.92
1.4.92
1.4.92
1.4.92
1.8.92
1.8.92
1.8.92
1.12.92
1.12.92
1.12.92
1.12.92
1.12.92
1.5.93
1.5.93
1.5.93
1.5.93
1.11.93
1.11.93
1.11.93
1.11.93
1.5.94
POLLUTION CONTROL
Apply Between
1.4.91 & 30.4.91
1. 4.92 & 30.6.92
1. 4.92 & 30.6.92
1.4.92 & 30.6.92
1. 4.92 & 30.6.92
1. 8.92 & 31 .10.92
1. 8.92 & 31 .10.92
1. 8.92 & 31 .10.92
1. 12.92 & 28.2.93
1. 12.92 & 28.2.93
1. 12.92 & 28.2.93
1. 12.92 & 28.2.93
1. 12.92 & 28.2.93
1. 5.93 & 31. 10.93
1. 5.93 & 31 .10.93
1. 5.93 & 31. 10.93
1. 5.93 & 31. 10.93
1.11.93&31.1.94
1. 1 1.93 & 31 .1.94
1.11.93&31.1.94
1.11.93&31.1.94
1. 5.94 & 31 .7.94

Chief
Inspector's
Guidance
Note Issued*
1.4.91
1.2.92
1.2.92
1.2.92
1.2.92
1.4.92
1.4.92
1.4.92
1.6.92
1.6.92
1.6.92
1.6.92
1.6.92
1.11.92
1.11.92
1.11.92
1.11.92
1.5.93
1.5.93
1.5.93
1.5.93
1.11.93

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
141
ANNEX 1 (continued)
EPA
Sohed. 1
Ref
2.1
2,3
2.2
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.9
Process
Metal Industry
Iron and Steel
Smelting
Non-ferrous
Other Industry
Paper Manufacturing
Di-isocynate
Tar and Bitumen
Uranium
Coating
Coating Manufacturing
Timber
Animal and Plant
Treatment
Comes
within
IPC
1.1.95
1.1.95
1.5.95
1.11.95
1.11.95
1.11.95
1.11.95
1.11.95
1.11,95
1.11.95
1.11.95
Apply Between
1.1.95&31.3.95
1.1.95 & 31 ,3.95
1.5,95 & 31 .7.95
1.11.95 & 31.1.96
1.11.95 & 31.1.96
1. 11.95 & 31. 1.96
1, 11.95 & 31.1.96
1. 11,95 & 31.1.96
1.11.95 & 31.1 .96
1.11.95 & 31.1.96
1. 11.95 & 31.1.96
Chief
Inspector's
Guidance
Note Issued*
1.7.94
1.7.94
1.11.94
1.5.95
1.5.95
1.5.95
1.5.95
1.5.95
1.5.95
1.5.95
1.5.95
  * Target date

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142                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       ANNEX 2

       PRESCRIBED SUBSTANCES

       Release to air: Prescribed substances

       Oxides of sulphur and other sulphur compounds
       Oxides of nitrogen and other nitrogen compounds
       Oxides of carbon
       Organic compounds and partial oxidation products
       Metals, metalloids and their compounds
       Asbestos (suspended particulate matter and fibres), glass fibres and mineral fibres
       Halogens and their compounds
       Phosphorus and its compounds
       Particulate matter

       Release to water: Prescribed substances

       Mercury and its compounds
       cadmium and its compounds
       All isomers of hexachlorocyclohexane
       All isomers of DDT
       Pentachlorophenol and its compounds
       Hexachlorobenzene
       Hexachlorobutadiene
       Aldrin
       Dieldrin
       Endrin
       Polychlorinated Biphenyls
       Dichlorvos
       1,2-Dichloroethane
       All isomers of Trichlorobenzene
       Atrazine
       Simazine
       Tributyltin compounds
       Triphenyltin compounds
       Trifiuralin
       Fenitrothion
       Azinphos-methyl
       Malathion
       Endosulfan

       Release to land: Prescribed substances

       Organic solvents
       Azides
       Halogens and their covalent compounds
       Metal carbonyls
       Organo-metallic compounds
       Oxidising agents
       Polychlorinated dibenzofuran and any congener thereof
       Polychlorinated dibenzop-dioxin and any other congener thereof

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         143
       Polyhatogenated biphenyls, terphenyls and naphthalenes
       Phosphorus

       Pesticides, that  is to  say, any chemical  substance or preparation prepared  or  used for
destroying any pest, including those used for protecting plants or wood or other plant products from
harmful organisms; regulating the growth of plants; giving protection against  harmful or unwanted
effects on water systems, buildings or other structures, or on manufactured products; or protecting
animals against ectoparasites.
       Alkali metals and their oxides and alkaline earth metals and their oxides.

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144                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL, ENFORCEMENT

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         145


RESPONSE TO REGULATIONS FOR DISPOSAL OF OFFENSIVE MATTER IN
BARBADOS, WEST INDIES

ARCHER, ARTHUR B.

Project Manager, Sewerage and Solid Waste Project Unit, Ministry of Health, Barbados


       SUMMARY

       The small developing Island of Barbados in the Eastern Caribbean is experiencing high level
environmental and public health standards which are largely responsible for its vibrant tourism
industry, which is a major contributor to the country's economy through the pristine quality of coastal
marine waters and generally good sanitary conditions island-wide. See Map of Barbados at Figure 1.
       The  Statutes  and personnel spearheading the improvement of  Public  Health  and
environmental conditions during the  post-fifth decade of this  century were  the Health Services
(Disposal  of Offensive Matter)  Regulations,  1969,  enforced by the country's first Environmental
Engineer, and the Environmental Engineering Division  of the Ministry of  Health (Established 1972)
assisted by the Public Health Inspectorate and the Town and Country Planning Department. Significant
assistance in the enforcement of the Regulations was through the "Ground Water Protection Policy"
primarily directed by the Barbados Water Authority as a protective measure for the country's ground
water supply and concomitantly general sanitation.
       However, with a positive response to the regulations, coupled post-1960 heavy increase in
coastal development, the Government of Barbados is currently undertaking the construction of coastal
sewerage system to arrest biological damage to fringing coral reefs and nearshore fisheries.


1      BARBADOS—PHYSICAL AND DEVELOPMENTAL FEATURES

       Barbados is the most easterly of the chain of Lesser Antilles Caribbean Islands with its eastern,
south-eastern and north-eastern coasts on the Atlantic Ocean. The area of the Island is 166 sq. miles
(430km2), comparatively flat, the highest point, Mt. Hillaby, 1104 ft (336.5m) above sea-level, with a
sub-surface geological structure of 85% coral limestone, with the  remaining 15% on the eastern part
of the island being a conglomerate, mainly of clays, shales and  some coral limestone.
       The coastal areas are virtually totally of coral sand and stone with numerous coral reefs, both
nearshore fringing reefs and offshore bank reefs.  Former areas  of mangroves  forests have virtually
become extinct.

1.1    Population

       The current population of  Barbados (1990 Census) is approximately 260,000, with virtually
50% residing in the southern and western parishes of St. Philip, Christ Church, St. Michael, St. James
and St. peter. The coastal areas of southern, western and Bridgetown City are the major areas of
Tourism and Commercial Development. It is in these areas where most wastes, liquid and solid, are
generated, and which  receive the major attention  for the protection of coastal and marine areas as
well as urban development control.


2     PRE-1970 WASTE MANAGEMENT AND DISPOSAL PRACTICES

       During the early years of the country the standard of living in Barbados was quite low. The
vast majority of the population was of the labouring class, with crude methods of disposal of wastes.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                            L  A  N   T   I   C
                                                          OCEAN
     Sara
    Rock Bay

   Fnahwater
       Bay


 Figure 1.  Barbados.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         147


The main methods of excreta storage was by the pit privy and the pail (bucket) closet. Disposal of
excreta was either by burial on the residential site, and in many cases the waste was transported in
barrels, and pails from pail closets, to beaches, the littoral zone of the coast, provided transportation
was done after 9,00 p.m.
       Other offensive matter such as dead animals,  putrescible solid waste and raw sewage were
clandestinely disposed in drains, watercourses! and fields. Running water was mostly installed by the
minority middle to upper class, but disposal of water-borne waste e.g. crude sewage and grey water
was somewhat uncontrolled, the beach and nearshore marine area, and public drains being common
vehicles of the wastes. There were however, in the majority receptacles of water-borne waste,  the
sewage wells; most inland ones dug to fissures in limestone which provides often a long-term (years)
of disposal.

2.1    The 1950 to 1970 decades

       The post-war (1939-45) period saw a greater awareness of the population, at all levels, of the
need for improved standards of living with a greater awareness of the importance of personal hygiene
and sanitation, there was a steady increase  in the installation of running water, with water-borne
disposal systems.
       The 1960s saw a continuing increase in commercial development  mainly in the City of
Bridgetown, with also a greater awareness of the national economic benefits of tourism. The industrial
sector began to take root and an Industrial Estate was established in the Bridgetown sea-port area.
       With a greater awareness  of the public health and environmental problems in the  country,
particularly in the densely developing coastal and urban areas, the Barbados Government in 1965
sought the assistance of a firm of Engineering Consultants, who in 1921 and 1945 had recommended
and planned (in 1945) a sewerage system for the City of Bridgetown and its suburbs. At this latter
stage (1985), The Consulting Firm recommended the installation  of septic tanks at the large heavily
occupied commercial properties, with effluent disposal into dug wells.
       The Bridgetown City area, with  a mixture of  commercial property and low-income homes
gradually became a City with somewhat odourous conditions, because the high water-table in  the
City area, and septic tanks  did not adequately absorb effluents,  with the resultant overflow of wells
entering o"pen public "storm" draihsr Inrsome~cases~package~ sewage treatment plants were Installed
with the effluents: discharged directly into the  open drains,  with the effluent flowing on the beaches
and into the sea. There were also several commercial buildings  where crude untreated wastewater
was disposed into the urban estuary, the Careenage.


3      ENACTMENT OF THE HEALTH SERVICES (DISPOSAL OF OFFENSIVE MATTER)
        REGULATIONS 1969

        With the increasing environmental problems  due to failure  of property owners to  improve
waste disposal problems, and  the slow process of enforcing existing by-laws enacted  by Local
Government Agencies to  cope with the rising problems of  the 1960s, the Central Government also
for other administrative reasons, abolished the Local Government agencies and placed public health
and environmental improvement as the responsibility  of the Ministry of Health.
        In the year 1969 the Health Services (Disposal of Offensive Matter)  Regulations were enacted
with the strict instruction to execute its enforcement. During the year, marine water quality monitoring
in the areas off Bridgetown City was undertaken, with the objective of assessing the bacteriological
quality of Carlisle Bay and the adjacent littoral areas  and beaches. Several storm drains were point
sources which impacted on beaches and the bay, often with faecal or decomposing organic matter.
But discharges of crude sewage and septic tank effluent being discharged into the sea, along with
some excreta disposed on  beaches included:

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       » Holiday Inn: Untreated comminuted  sewage  pumped approximately 700 feet
         offshore,
       • St.  Michael  District Hospital and  Government Headquarters:  Crude  sewage
         discharged in the surf off the Esplanade.
       • Fish Market, Bay Street; Septic tank effluent discharged to sea via Brownes Beach.
       « Ministries of Health and Education Compound: Septic tank effluent piped 300 feet
         offshore into Bay.
       • Queen Elizabeth Hospital:  Untreated comminuted sewage pumped 1000 feet
         offshore in Carlisle Bay - approximately 1000,000 gallons per day (gpd).
       • Lewis Alley, Bay Street: Contents of Privy Pit dumped in surf or on the beach.
       » Government Abattoir: Septic tank effluent and slaughter house waste discharged
         60 ft. offshore by pipeline.

       See coastal point sources locations at Figure 2.
                        BRIDGETOWN
       Q.E.  Hospital Compound
    H & E Ministries Compound

    Fish Market Brownes Beach
  District Hospital &
  Government Headquarters
                                  HblidaT Inn
 Figure 2.  Coastal point sources of waste water discharges in Carlisle Bay.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                 149
       The results of water quality sampling off the beaches adjacent to Carlisle Bay show the very
high level of bacteriological pollution on December 10, 1969. See Table 1.


3.1    Enforcement of (Disposal of Offensive Matter) regulations, 1969

       With the high levels of bacteriological pollution analysed in samples from the Carlisle Bay as
well as  other adjacent  marine areas, restrictive  and prohibitive  action was taken  to  meet the
requirements of the  Disposal of Offensive Matter  Regulations.  Conditions imposed included:
Table 1.  Coliform Counts from Bacteriological Analysis of Marine Samples
         Taken off the Beaches of Carlisle Bay: December 10, 1969
Source
Near Queen Elizabeth Hospital Jetty
Between Lewis Alley and Queen
Elizabeth Hospital Jetty

Midway between Esplanade and change
rooms, Gravesend
Between change rooms and Holiday Inn
Reece's Beach

Off Harbour Police Station

Time
10.00 a.m.
10.05 a.m.
14th August
6.45 a.m.
1.35 p.m.
6.05 am.
2nd August
6.15 am.
10.13 a.m.
3.15 p.m.
Coliforms/1 OOcc
(Total)
10,000
6,000
1968
NIL
1,370
NIL
1968
2,170
2,600
390
Remarks
Very high
Very high

High tide
Low tide - possible
pollution from bathers

110 faecal coliforms
indicative of excreta -
disposal
Die off towards
afternoon
                                         7.15 p.m.



                                         9.05 p.m.
                   5,900



                  11,200
             Evening disposal (W.C.'s)
             Late evening peak
             disposal
                         Earlier Analysis in Same Areas - 10th December 1969

                                         25th July 1968
 Sea Pool area of Eye Hospital
6.15 a.m.

10.08 a.m.

12.55 a.m.

3.10 p.m.

6.10 p.m.
1,580

 660

 150

  NIL

 860
  Pattern of early morning peak, afternoon die away and late evening build-up of coliforms appear to have been
  common to the areas along lower Bay Street and Browne's Beach.

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150                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       »  Stoppage of disposal of sewage, sewage effluent and other offensive  matter on
          beaches and into  the  sea, unless permitted by the Ministry of Health under
          conditions required  by the Ministry;
       •  Properties may dispose of sewage by flow into a well at depths instructed by the
          Ministry of Health and Environmental Engineering Division personnel;
       »  At commercial properties and large residential buildings, the use of septic tanks
          with effluent disposal in soakaways/sewage wells were required;
       »  At hotels, apartment buildings, and public institutions where sewage flows exceed
          3000 gpd and where limited land area prevented the use of additional septic tanks
          and disposal wells; Property and facility owners/agents were required to install
          package  sewage treatment plants, the effluents from which are monitored for
          effluent quality.

 3.2    Response to regulatory requirements    '

       The response to the Statutory requirements of tie Regulations was, in general, quite positive.
 No prosecutions were made and in many cases additional time was given to install the required plant
 and equipment. In the process of  enforcement of the Regulations, Owners/Agents were reminded of
 the penalty of a fine not exceeding BDS$5000 or imprisonment for a term not exceeding 12 months
 or both; $200 for each day or part thereof during the  period when the offence continues  after a
 conviction is first obtained, was also enacted,

 3.3     Inland responses

 	- -With the increasing coastal and urban development to meet the rapid development of tourism
 and its demand  for coastal plant and other facilities, there was considerable attention paid to the
 enforcement of the regulations on coastal properties.
        But in urban,  suburban and rural areas, the requirements of the Ground Water  Protection
 Policy (see Appendix 2) were and are still  being enforced, Significant requirements to protect the
 country's sole source  of potable  water, ground water, were imposed,  based on the Development
 Zoning system, established in 1964. Enforced sectors of the Ground Water Protection Policy include:
        • The prohibition of new physical development in the Zone 1 Area. Restriction of the
          installation of water-borne waste  systems at  properties on-site before 1964 was
          mitigated by the requirement of the  installation of an Activated Carbon-gravel  Filter
	   Bed to filter effluent from a septic tank. The filter bed was designed by A.B, Archer
          1973.
        There are five zones covering  the  island's terrestrial area.  Zone 1 is within the "cone of
 influence" of the  water supply well. Zone 2 is an area adjacent to the Zone 1 area where the use of
- a septic tank with effluent disposal into a well not exceeding 20 feet (6.1 m). In Zone 3, no septic tank
 is required, but separate wells must be provided for sewage and grey water. Zones 4 and 5, nearer
 the coast has no restrictions, except for petrol and other industrial wastes.
        Figure 3  illustrates the five (5) Ground Water Protection Zones. The Ground Water Protection
 Policy requirements are at Appendix 2.
 4      INSTALLATION OF SEWERAGE SYSTEMS

        With the installation of septic tanks and package  sewage treatment plants there was the
 removal of crude sewage and excreta from the nearshore marine and coastal areas with the resultant
 significant improvement in the clarity and quality of coastal waters. However with results of marine

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
151
 Figure 3.  Barbados ground water protection zones.
 biological studies done, mainly by the Bellairs Research Institute of McGill University, based on the
 Western Coast of Barbados, it was indicated that there was increasing levels of nutrients in the
 nearshore marine  environment,  consistent with increasing coastal and near-coastal physical
 development.
        With  the septic tank effluent disposal problems in  Bridgetown, and  the evidence of the
 elevated nutrient levels and the resultant proliferation of algal growth causing damage, and in some
 coastal areas disintegration of coral reefs with the resultant erosion of some beaches; in the  year
 1970, a prefesibility report  on  wastewater was prepared with the recommendation for a sewerage
 system for the City  of Bridgetown.
        The Government of Barbados approached the Inter-American Development Bank (IDB) for
 Technical assistance towards the installation of a sewerage system, and  in the period 1973-74, the
 IDB assisted the Government with the funding of consultancy services to execute feasibility studies
 and final design for a Bridgetown sewerage system.

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152                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In 1976 the IDB provided a loan to the Barbados Government for the construction of a
sewerage system in Bridgetown, and a Technical  Cooperation Grant to establish a "Water and
Sewerage Authority" to administer the operations of the sewerage system.
       After the required project preparatory measures, including the engagement of a consulting
firm for sewerage construction supervision, and contractors to execute three (3) contracts - sewage
collection (sewer) system, sewage treafrnent plant, and a marine outfall - the system was constructed
during the period March 1979 to June 1982.

4.1     Enforcement action

       In the year 1980, after eleven (11) studies, including investigations into local administrative,
financial and public reaction matters, the  Barbados Legislature established the  "Barbados Water
Authority" to administer the country's water and sewerage services. With the establishment of the
Authority Sewerage Regulations were enacted.
       Of major importance in the sewerage regulations was the requirement for property owners to
have  their water-borne  waste connected to the sewer system. There was an early response by
commercial  properties to the requirement to connect to the  system. However, as time passed  it
became necessary for the Authority to execute the enforcement of the requirement to connect to the
system. Under the Regulations, property owners  are given 90  days  to make  provision for the
connections, which were monitored by the Authority's technical personnel. On failute to connect, the
Authority had the power to enter premises, make connections and recover cost through the law court.
      ;. The response to the requirement for connections was  slow. But it was  also recognized that
the major residential areas in the area sewered were low-income, hence tolerance  was exercised by
the Authority and Central Government.  Additionally in the contract between the IDB and the Barbados
Government  there was provision of a  fund for the installation  of "In-house Facilities"  to allow
low-income homes to connect to the system, which  included a water-closet,  shower and lavatory
basin.
       The  sewerage  system in  Bridgetown, completely connected with the imposition of
enforcement, and assistance to low-income areas,  has developed one of the cleanest cities in the
Caribbean, with the facility for increased commercial and industrial development, and has made
Carlisle Bay and its adjacent marine areas one of the greatest pristine marine bathing areas in the
world, with the return of corals and some fisheries.  The environmental and development benefits of
the coastal sewerage systems in dealing with offensive matter can comparatively be seen by thick
algal growth and defoliated  sea-grass  at some other beaches, compared  with  the almost
non-existence of such wastes indicators on beaches bordering Carlisle  Bay. Table 2 demonstrates
the improvement of the bacteriological quality of Carlisle Bay Coastal waters after the construction
of the sewerage system with the removal of offensive sewage  and effluents from direct point source
disposal, and infiltration into the marine environment from coastal sewerage disposal wells and
soakaways.
       Indeed, with the enforcement  of  connections to the system, as early as 1984-85 an
International firm of Consultants reporting on the marine quality of the Carlisle Bay area stated, quote:

       "The fringe reefs have been long dead in Carlisle Bay  and  are matted with sand and
       rubble. However, encouraging new settlement of coral was observed in southern
      -Carlisle Bay during diving programmes. This new coral settlement appears to have
       followed improvement of sewage treatment and/or  removal of outfalls from the
       Northern Needham's^Point area." unquote.

       The  enforcement of Disposal of  Offensive Matter Regulations,  1969, and  the Barbados
Sewerage Regulations  have been indicative of the need to stress to the public the importance ol
environmental and public  health protective action. Today, because of the high standard of public
health and  environmental conditions  in  Barbados, Tourism is one  of the major elements oi
sustainability of the economy of the country.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                        153
Table 2.  Ministry of Health: Environmental Health Division Marine Water Quality Monitoring Programme
         Bacteriological Analysis Report
Date
             Sample Site
Total Coliforms
per 100 ml
Faecal Coliforms
per 100 ml
1987
27-07-87



25-04-87



16-05-87



Off Needhams Point
Off Grand Barbados
*Queen Elizabeth Hospital Jetty
Bridgetown Sewerage Marine Outfall
Off Ice Fectory - Bay Street
Browne's Beach
Off Esplanade (Former District Hospital outfall
location)
Beach at Needhams (Off Hilton Hotel)
Pebbles Beach
Off Esplanade
Brownes Beach
36
20
28
40
<10
<10
<10

64
56
75
15
Nil
Nil
Nil
Nil
Nil
Nil
Nil

Nil
Nil
Nil
Nil
1988
13-06-88


29-06-88



05-08-88



14-10-88



18-11-88


05-12-88




19-12-88



Date
Off Hilton Hotel Outfall
Off Grand Barbados Hotel
Off City Sewerage Outfall
Off Hilton Hotel (Needhams Point)
Pebbles Beach
Bay Street Esplanade
Browne's Beach (Off Rsh Market)
Off Hilton Outfall (Needhams Point)
Grand Barbados
Queen Elizabeth Hospital Outfall Jetty
City Sewerage System Outfall
Off Hilton Hotel (Needhams Point)
Pebbles Beach
Esplanade Beach
Browne's Beach
Browne's Beach (Nr. Hospital Jetty)
Brownes Beach (Off Rsh Market)
Browne's Beach (Nr. Esplanade)
Off Hilton Hotel (Needham's Point)
Pebbles Beach (Nr. Mobil Office)
Pebbles Beach (Nr. Grand Barbados Hotel)
Browne's Beach (Nr. Esplanade)
Browne's Beach (Off Rsheries Div. Office)
Hilton Hotel Beach
Browne's Beach (Nr. Esplanade)
Browne's Beach (Off Rsheries Div. Office)

Sample Site
600
1,200
288
136
72
124
488
20
<10
30
<10
340
Confluent Growth
1,000
220
80
40
Nil
Nil
Nil
100
4
9
Nil
Nil
Nil
Total Coliforms
per 100 ml
Nil
Nil
Nil
Nil
20
Nil
Nil
Nil
Nil
Nil
Nil
40
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Faecal Coliforms
per 100 ml

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154
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                            1989
08-04-89

24-05-89
27-06-89

04-07-89


28-08-89




26-09-89



02-11-89



Browne's Beach North
Browne's Beach South
Browne's Beach (Nr. Fish Market)
Off Hilton Hotel (Needham's Point)
Pebbles Beach (Nr. Mobil Drain)1
Esplanade
Browne's Beach South
Brownes Beach North (Nr. Hospital Jetty)
Pebbles Beach (Nr. Grand Barbados)
Esplanade (Nr. Rsheries Div. Office)
Browne's Beach (Nr. Carlisle Centre)
Browne's Beach (Nr. Hospital Jetty)
Inshore of City Sewerage outfall
Off Hilton Beach
Pebbles Beach
Esplanade [Jeach
Browne's Beach South
Off Hilton Beach
: Pebbles Beach (Midway) :
Esplanade
Browne's Beach
100
320
24
Nil
2,280
310
126
172
10,000
40
600
40
30
<100
<100
<100
<100
<100
<100
<100
<100
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
N/A
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
Nil
1 Drain adjacent to Mobil Refinery/Office conveys water from over one(1) mile inshore
        The Government of Barbados is however aware of the need to increase the number of statutes
 to protect the environment and will shortly be enacting the required legislation, with the provision of
 personnel and monitoring facilities for enforcement. Such statues include:
        • A Litter Act
        • Air pollution Regulations, to control vehicle and other emissions
        • Hazardous waste Disposal Regulations. Note is made of the existing incinerator at
          the Caribbean's largest formulator of pesticides to dispose of containers and other
          items  used in the formulation of pesticides/insecticides, which was  installed in
          response to Health Regulations during the 1980s.
        • Provisions for strengthening the "Pesticides Control Board" with authority to refuse
          the importation of  pesticides  barred  in some  countries  where  they  are
          manufactured.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         155
       APPENDIX I

Health Services
J1 (Disposal of Offensive Matter) Regs., 1969 regs. 1.5
Health Services cap.44.
HEALTH SERVICES (DISPOSAL OF OFFENSIVE MATTER) REGULATIONS, 1969

Made by the Minister under section 10 of the Health Services Act.

  1. These Regulations may be cited  as the Health Services (Disposal of Offensive Matter)
    Regulations, 1969.

  2. For the purposes of these regulations—"filth"  includes any decomposing animal or vegetable
    matter; "night soil" means human excreta.

  3. No person shall throw, deposit, let out or place  any filth, night soil, dead animal or other offensive
    matter or thing of any kind on or about—

       (a) the premises of another person;
       (b) any water-course or beach;
       (c) any public street, road, lane, alley, passage or thoroughfare;
       (d) any other premises or place where such  filth, night soil, dead animal or other
          offensive matter may create a nuisance  or be detrimental to the public health.

  4. No person  shall, except with the approval of  a Medical  Officer of Health, carry any night soil
    through any public street, road, lane, alley passage or thoroughfare in any cart,  vehicle or
    receptacle of any kind before the hour of ten o'clock in  the evening and after the hour of six
    o'clock in the morning.
  5. No person  shalLuse any_cart, vehicle or receptacle of any kind for the conveyance of any filth,
    night soil or other offensive matter of any kind unless such cart, vehicle or receptacle is staunch,
    tight and closely covered so as  to prevent smell or leakage in or upon any street, road, lane,
    alley, passage thoroughfare or place on or through which such cart, vehicle or receptacle may
    pass.
  6. Any person causing or permitting any filth, night soil or other offensive matter to fall or drop from
    any cart, vehicle or receptacle on to any street, road, lane, alley,  passage, thoroughfare or place
    shall forthwith.
        (a) remove or cause to be removed such filth, night soil or offensive matter, and
        (b) clean or cause  to be cleaned such street, road, lane, alley, passage, thoroughfare
          or place to the  satisfaction of the Medical Officer of Health.

  7. (1) No person shall convey filth, night soil or other offensive matter of any kind in any cart, vehicle
    or receptacle unless—

        (a) such cart, vehicle or receptacle is first  approved by  a Medical  Officer of Health,
          and
        (b) the person conveying such filth, night soil  or other offensive matter first receives
          a licence so to  do from a Medical Officer of Health.

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156                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
    (2) Any approval or licence  issued  by a Medical Officer of Health in accordance with the
    provisions of paragraph (1) shall be valid for a period which shall expire on the 31st day  of
    December next after issue, but may be renewed for a like period.

    (3) Notwithstanding the provisions of paragraph (2), a Medical Officer of Health may at any time
    cancel or revoke any licence or approval issued in accordance with paragraph (1) should he
    consider it in the interest of the  public health so to do,

 8, (1) No person shall let out, throw or deposit any filth, night soil or other offensive matter into the
    sea except at such     and  in such manner as the Minister  may approve.

    (2) Every site approved by the Minister shall be clearly indicated by a signpost or signposts, and
    such signpost or signposts shall state the hours during which filth, night soil or other offensive
    matter may be  let out, thrown or deposited.

 9. No person shall bur/ any night soil  in any place except at such sites and in such manner as the
    Minister may approve, and unless such night soil is covered by earth to a depth of not less than
    eighteen inches below the level of the surrounding ground.

10. (1) The owner of any premises  which are or are likely to be used	

       (a) as a place of—
           (i)  human habitation; or
           (ii) habitual employment; or
       (b) by any members of the public as a place of—
           (i)  entertainment; or
           (ii) refreshment; or
          " (Hi) instruction; or                        .   .    :
           (iv) worship
    shall to the satisfaction of a Medical Officer of  Health—\
       (a) provide any such premises with sufficient and suitable sanitary conveniences for
          the disposal of human excreta, and
       (b) provide any such premises to which the public are or are likely to be admitted or
          where persons of both sexes are or  are likely to be employed or in attendance,
          with  sufficient and suitable separate sanitary conveniences for  persons of each
          sex.

     (2) For the purposes of this regulation, a suitable sanitary convenience shall be—

       (a) a properly constructed water closer; or
       (b) a properly constructed pit latrine, or
       (c) a properly constructed earth closet, or
       (d) a properly constructed chemical closet,  or
       (e) a properly constructed pail latrine
    as may be approved by a Medical Officer of Health

    (3) No person shall dispose of sewage from a water closet except by on of the following systems
    or into one of the following places for which the prior approval of a Medical Officer of Health K
    required—

       (a) into a properly constructed public or private sewerage system, or
       (b) into a properly constructed suck well or cess pit, or
       (c) into a properly constructed septic tank,  or
       (d) into the  sea.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         157


11. No person shall cause or permit the effluent from any public sewerage system to flow into the
    sea or on or into any other place except at such sites and in such manner as the Minister may
    approve,
12. No person shall  cause or permit the effluent from any private sewerage system or from any
    specific tank to flow into the sea or on or into any other place except at such sites and in such
    manner as a Medical Officer of Health may approve.

13. No person shall cause or permit any well, pit, or hole of any description to be used  in  connection
    with the disposal of any human or animal excreta or of any filth or of any other offensive matter
    unless such well, pit or hole shall comply with the provisions of any Act, by-laws, regulations,
    orders or directions, governing the protection of the underground water supply of Barbados.

14. The owner or occupier of any premises where an animal dies or is found dead, or the owner of
    any animal found dead in any public place, shall cause the body of such animal to be promptly
    removed and disposed of to the satisfaction of a Medical Officer of Health.

15. If the body of any dead animal sent out to sea is brought by the sea to any place where such
    body may cause a nuisance  or  is likely to be detrimental to the  public health, the persons
    responsible for sending the said  body to sea shall forthwith cause such body to be removed
    and  disposed of to the satisfaction of the Medical Officer of Health, and such person shall be
    deemed to have  committed a fresh offence every day during which such body  has not been
    removed and disposed of.

16. If the person responsible for the proper disposal of the body of any dead animal cannot readily
    be found, or fails satisfactorily to dispose of such dead body within a reasonable time, a Medical
    Officer of Health shall cause such body to be properly disposed of, but he shall be entitled to
    recover from the person responsible all expenses reasonably incurred in the hospital thereof.

17. Any person who brings or causes to be brought on to any beach, whether above  or below high
    water mark, the shells or entrails of sea-eggs shall as soon as is practicable thereafter, dispose
    of the said shells or  entrails by burial to  a depth of not less than three feet or in such manner
    as may be approved by a Medical Officer of Health to avoid injury to any person using the beach
    and  to prevent the breeding of flies or the~ occurrence of a nuisance.'"
18. Any  person contravening any of the provisions of these regulations shall be guilty of an offence
    and on summary conviction thereof shall be liable to a fine not exceeding $5 000 or imprisonment
    for a term not exceeding 12 months, or both, and, in the case of a continuing offence, to a further
    fine not exceeding $200 for each day or part thereof during which the offence continues after a
    conviction is first obtained.

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158                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

       APPENDIX II


REVISED POLICY OF PRIVATE SEWAGE AND WASTE WATER DISPOSAL SYSTEM


Zone I  - Areas of prohibited building development around existing and future wells.
       (a) Subject to the provision of Part IV hereunder there shall be no new buildings and
          no new water connections in this zone.
       (b) Existing  buildings shall continue to use existing  sewage disposal systems
          meanwhile and no changes shall be made to such systems except for the purposes
          of routine maintenance.  The Water Board may take such steps to secure changes
          and improvement in the existing systems as shall be considered to be necessary.
       (c) Subject to the requirements of (b) above, consideration will be given to the grant
          of permission for minor additions or alterations to existing buildings.
Zone II
       (a) No soakaway pit in this zone shall exceed 20 feet in  depth.
       (b) Separate soakaway pits shall be provided for —
          (i)  Sewage; £ind
          (ii) Domestic waste water (including bath, kitchen wastes,  etc.)  However, such
             water  may be run on to the  surface where conditions satisfy the Sanitary
             Authorities.
             In case of waterborne sewage a septic  tank of approved design must be
             installed and the effluent from the tank discharged into a soakaway pit.
       (c) Sewage disposal by dry pit shall be permitted.
       (d) No rain or surface waters shall be discharged into a sewage pit.
       (e) All systems to  be installed below the 200 feet contour  line shall be subject to
          approval  by the Waterworks Department.
       (f) No new petrol or fuel oil installations shall be permitted.
       (g) All sewage disposal works and pits for a  new premises or alterations  to old
          premises requiring such works must be certified as a satisfactory construction by
          the Health Department before the water supply to such premises is connected.

Zone III
       (a) No soakaway pits shall exceed 40 feet in depth.
       (b) In the case of pits without fissure or satisfactory absorption capacity, sewage shall
          be disposed of  by septic  tanks or  approved design with effluent discharge to
          soakaway pits.  A separate pit must be provided for  sewage.
       (c) All domestic waste shall be disposed of to a soakaway pit or septic tank or surface
          disposal  as in Zone II as the case may be.
       (d) Sewage disposal by dry pit shall be permitted.
       (e) No rain or surface waters shall be discharged into a sewage pit.
       (f) Petrol and fuel tanks shall be  enclosed  in approved leak-proof reservoirs to the
          satisfaction of the Water Board.
       (g) All sewage disposal works and pits for new premises or alterations to old premises
          requiring such works must be certified as to satisfactory construction by the Health
          Department before the water supply to such  premises is  connected.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         159


Zone IV
       (a) There shall be no special restrictions on the system of waste water and sewage
          disposal employed.
       (b) Petrol and fuel tanks shall be enclosed  in approved leak-proof reservoirs to the
          satisfaction of the Water Board.

Zone V
       (a) There shall be no special restrictions on the system of waste water and sewage
          disposal employed.
       (b) No new petrol and fuel tanks shall be constructed in this Zone without the prior
          approval of the Water Board.


III.     INDUSTRIAL WASTES

       Zone I - No new industrial waste-deposits or disposal shall be permitted.  The Water Board
may take such steps to secure changes  and improvements in existing industrial waste disposal
practices as shall be considered to be necessary.
       Zone II - V
        (a) All industrial wastes shall be treated in  accordance with specifications approved by the
           Water Board.
        (b)  Subject to compliance with (a) above, wells or pits to be used for disposal of industrial
           wastes in zones II and III shall not exceed the depths specified in Part I above  in respect
           of soakaway pits in the respective zones.
        (c)  All  industrial waste treatments  plans  shall  be designed, operated and  at all times
           maintained to the satisfaction of the Water Board.

IV.     SPECIAL. EXEMPTIONS

       Special  exemption may be authorised by the Water Board.

V.     GENERAL

        (i)   Subject to the approval of the Water Board sewage and industrial waste may be conveyed
            by an approved sewerage system from one zone to another to be treated  or disposed
            of in accordance with  the appropriate requirements of the zone in which it is to be
            disposed; or disposed of to the  sea.
        (ii)  All  sewage, waste water and  industrial waste disposal  systems to  be installed  in
            accordance with  the above requirements in  respect of any zone shall be  designed,
            operated and at all times maintained to the satisfaction of the Local Health Authority.

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160                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       161
                                  THEME 4:

   EXPERIENCES IN COMPLIANCE AND ENFORCEMENT
 1,  Successful Compliance and Enforcement Approaches, ft van Hewelen,
    P. Rosenberg	,	163

 2,  The Interest of Cooperation between Police Public Prosecutors and Governmental
    Authorities in the Field of Environmental Enforcement, J. van Dljk	,	175

 3,  The Great Lakes Enforcement Strategy: Using Enforcement Resources to Maximize
    Risk Reduction and Environmental Restoration in the Great Lakes Basin,
    L Peterson 	181

 4,  Enforcement of Compliance Requirements at OMAI Gold Mines Limited - Guyana,
    KAfcoff	,	,	,	,.,	197

 5.  The Enforcement Experience in Guyana on Exploitation of Natural Resources,
    J. G. Singh	205

 6.  Collaboration in Environmental Enforcement: Experiences with the Build-Up of a
    Coordinated Enforcement Structure, J.J.M. Tindemans	213

 7,  Enforcing Environmental Regulations Related to Industrial and Other Economic
    Activities in Russian Federation, Y Maksimenko 	217

 8. Enforcement of Rules and Regulations Concerning the Production and
    Application of Animal Manure In the Netherlands, R. M. Bergkamp	.,	223

 9, Monitoring Industrial Emissions: A Successful instrument for Environmental
    Enforcement, M Putz	231

 10. Enforcement of the "Pollution of Surface Water Act" in the Netherlands,
    1970 to 1994, F.  Plate	239

 11. Experiences in Environmental Enforcement in the United Kingdom, S. Carfyle 	243

 12, Environmental Agony: My Experience as an Argentinian Judge,
    D.H. Uermanos	;	247

 13. Deforestation in  Protected Areas: Case Study of Haitises National Park, G.R. Marizan	253

 14. Popular Actions  and the Defense of the Environment in Columbia, G. Sarmienta 	261

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162              •     .      THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
15. The Enforcement of the Pollution of Surface Waters Act in The Netherlands,
    G.RM vanDijk,,..	265

16. The Relationship between Central Government and Provincial/Municipal Authorities
    with Regard to Enforcement, J,A, Peters	............,..,.....;. 269

17. Control of Licence-Holders for the Disposal of Chemical Waste by the
    Inspectorate for the Environment in the Netherlands, H. Staats	277
See related papers from other International Workshop and Conference Proceedings on experiences
in other countries including; United States,  The Netherlands, Sweden,  Norway,  Hungary,  Poland,
Switzerland, Romania, France, United Kingdom,  Germany, Bulgaria, Russia, Indonesia, former
Czechoslovakia and Czech and Slovak Federated Republics, Canada, EC, and UNER

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                  .      163


SUCCESSFUL COMPLIANCE AND ENFORCEMENT APPROACHES

HEUVELEN, ROBERT VAN1 and ROSENBERG, PETER *

1 Director, Office of CMI Enforcement, U.S. Environmental Protection Agency, 401 M Street, SW,
Washington DC 20460 USA

2 Program Analyst, Office of Compliance Analysis and Program Operations, U.S. Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460 USA


       SUMMARY

       This paper reviews successful outcomes of enforcement actions. The US EPA seeks to secure
compliance, deterrence, improved management and environmental benefits, including the transfer of
innovative technologies across different industrial sectors  and the "leveraging" of individual
enforcement actions. The approaches highlighted include the use of lists for a universe of violators,
targeted initiatives,  "big"  cases  indicative of new and innovative directions in  the enforcement
program, and the "leveraging0 of individual settlements to secure more comprehensive environmental
benefits. (1)


1     INTRODUCTION

       The primary goal of environmental enforcement is to ensure compliance in order to protect
the environment and public health. At the most basic level, therefore, enforcement "success" can be
measured by the extent to which the regulated community is, In fact, in compliance with all applicable
environmental laws and regulations.
       However, despite the central importance of compliance rates and  the aggregate level  of
enforcement activity, they are not, by themselves, the only indicators  of  a healthy enforcement
program. Other measures may indicate whether or not the overall environmental benefits  of laws and
regulations are being achieved. White a lot has been analyzed and written about the US environmental
protection effort, we are  still learning about the  efficacy of our programs and our  concept  of
environmental "success"  continues to be both dynamic and evolving. As EPA's environmental
enforcement program has matured, the concept of  "success" itself has also become more complex
and multi-faceted. It encompasses not only the concept of high rates of compliance and aggregate
 numbers of enforcement actions, but also the important, albeit more difficult to measure, concept of
environmental results and deterrence.
       A historical review of EPA's enforcement program shows that there is no single enforcement
 "model" or  strategy which guarantees  success.  .Rather, the enforcement process  inevitably is
 influenced by'and  reflects a number of factors such as the Agency's method of organization,
 relationship with States and the regulated community, its resource level and legal authorities, and the
 types of pollution problems facing the country,  as  well as the state of available technological and
 scientific knowledge, at a  particular point in time.
       Therefore, EPA's approaches to enforcement have changed and, hopefully, become more
 sophisticated and successful over time. We still have not learned all the  lessons,  developed all the
 answers, nor solved all the problems. However, we have gradually and unmistakably moved from  an
 emphasis solely on assessing penalties, to a "compliance plus" strategy which tries to "leverage"
 the impact of each individual  enforcement action to secure additional deterrence and environmental
 results. The central features  of this new approach are a commitment to risk reduction, pollution
 prevention and the diffusion and transfer of innovative technology within and across  different industrial
 sectors.

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164                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      EARLY ENFORCEMENT STRATEGY: THE "LIST" APPROACH

2.1     Major source enforcement effort

       EPA's early enforcement strategies of the late 1970's and early 1980's involved identifying the
total universe of specific sources that needed to be addressed. For example, the Major Source
Enforcement Effort (MSEE) focused on a list of specific industries that were major violators of the
Clean Air and Clean Water Acts. These industries then became the universe for both Federal and
State enforcement action.
       The MSEE, which took place from 1977-81, forced major facilities, primarily involving steel
mills, power plants, refineries and chemical plants to install air and water pollution control equipment
required for initial compliance. (2)  Working methodically down the complete list of sources under
the MSEE, EPA and the States took 609 enforcement actions involving CWA violations and initiated
approximately 400 judicial referrals for CAA violations. When the MSEE was concluded, the "initial
compliance" problems for these industries, focused on the installation of wastewater treatment for
water sources and scrubbers for air sources, were generally under control. Obviously, this was only
accomplished after a significant investment of time  resources. (3)

2,2    Significant noncompliance

       The "list" approach, with major refinements and  adjustments, continued  to serve as the
Agency's primary enforcement  strategy throughout most of the 1980's. The primary theoretical
"retooling" took place in 1984 with the formal adaption of the Significant Noncomplier (SNC) concept
by all of EPA's compliance programs. SNC lists do not generally single out specific industries. Rattier,
they are derived from the application of clearly defined national criteria and represent the most serious
categories  of high priority violations whose  progress towards compliance  is closely tracked by
Agency-wide management systems. The Agency then analyzes the progress made by the Regions,
programs, and  States in undertaking "timely and appropriate" enforcement responses to the most
significant violations, i.e., resolving the violations quickly and with an appropriate civil penalty.
       In contrast to  the MSEE approach, which, when concluded, signaled an overall drop in EPA
enforcement, SNCs represent a dynamic enforcement management tool. (4)  As with other list
approaches, knowing that they are on the SNC list and that formal enforcement action will be taken
against them, sources have gradually become more likely to resolve disputes more quickly.

2.3   ' The National Municipal Policy

       A major application of the refined list approach was the National Municipal Policy (NMP) of
the  late 1980's. The NMP was designed to secure compliance with specific National  Pollution
Discharge Elimination System (NPDES) effluent limitations for municipal wastewater treatment plants.
Previously, POTWs had been hesitant to install  secondary treatment standards without federal funding
support. EPA had compounded the problem  by continuing to extend the timelines for compliance
without taking formal  enforcement actions.
       Under the NMP, the noncomplying facilities became the  object of both State and federal
enforcement efforts.  By 1987,  almost 80% of all  NMPs  were  under an administrative or judicial
enforcement action. The results of the NMP were high successful. As the table below indicates, about
70% of the 1,478 subject facilities came into compliance by the July 1988 deadline for achieving
required treatment. As of that date, as a result of the initiative,  NMP facilities were removing an
estimated 2.32  million more pounds/day of conventional pollutants and 15,000 more pounds/day of
toxic pollutants. The NMP was ultimately successful because the Agency established a fixed universe
of facilities to target and track them on a case-by-case basis until compliance was achieved. (5)

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         165
          Compliance Status of NMP Facilities (as of July 1988)

                                                    Number          Percentage
Total Major POTWs
Not in compliance by 1984
In compliance by 1988
On enforceable schedule by 1 988
Judicial
Administrative
Not on enforceable schedule by 1988
Judicial - filed
Judicial - referral, not filed
3,731
1,478
1,055
235
195
40
188
60
38

100%
71%
16%


13%


3      THE NEW APPROACH: MAXIMIZING ENVIRONMENTAL IMPACT

       The SNC concept continues to be a major management tool for addressing violations on a
single media or programmatic basis. In addition, since 1991, the Agency has used both single and
multi-media inspection targeting and case screening procedures designed to identify violations which
involve the most significant environmental and health risks, to choose the most appropriate response
among administrative, civil judicial and criminal authorities, to assess the opportunity for incorporating
innovative auditing end technological approaches as part of the case settlement process, and to
publicize these enforcement actions for maximum deterrent impact across the regulated community.
(6) These targeting, screening, and case development and management procedures are yielding an
expanding universe  of enforcement actions for which the Agency attempts  to  include pollution
prevention/waste minimization conditions as part of the final case resolution.

3.1    National enforcement initiatives

       As part of its multi-media,  risk-based strategy, EPA  began  conducting annual  national
"targeted" enforcement initiatives in the late 1980's. As distinguished from the "list" approach
discussed above, initiatives usually target a specific subset of a regulatory class or environmental
problem which the Agency wants to emphasize both for its  environmental and deterrence impact.
The broader coverage  provided by the multi-media  enforcement strategy is more effective  in
addressing noncompliance and deterring future violations. The object of these initiatives have included
specific pollutants, industries and sensitive geographic zones which present national risks to human
health and the environment. (7)
       For example, in 1992, the Agency filed nine benzene  cases, prosecuted 24 lead cases, and
filed 64 cases against the primary metals, pulp and paper and industrial'organic chemical industries.
EPA chose these three industries from among  more than twenty industries both because of their
history of significant noncompliance across several environmental laws and high ranking in  terms of
total and average pounds of toxic material released per facility have been major emitters of toxic
pollutants. (8)
       EPA also has implemented  program-specific national  initiatives, whose focus  often is
maintaining the integrity of its regulatory structure. In one example, the Agency successfully launched
an "illegal operators" initiative which targeted hazardous waste handlers who, by virtue of their failure
to identify themselves under the Resource Conservation and Recovery Act (RCRA), did not lawfully
handle, store, or dispose of hazardous wastes. (9)  Similarly, the Agency has conducted Data
Integrity/Data Quality initiatives focused principally on non-reporters and false reports of data that  are
required under national and delegated programs. The goal of these  initiatives is to send a positive,

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166                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
consistent message to the regulated community to the importance to EPA and the states of obtaining
accurate and complete data to determine compliance and to assess environmental progress.

3,2    THE TSCA Compliance Audit Program

       A notable example of a successful program-specific data quality/data integrity initiative is the
Toxic Substances Control Act (TSCA) Section 8(e) Compliance Audit Program (CAP). (10) That Act
gives EPA the .responsibility of performing chemical risk assessments, for which the Agency needs
accurate, comprehensive, and up-to-date hazard and exposure data to  meet that task. In the past,
however, the Agency believed that many companies had been slow to report  chemical data
concerning potentially serious health effects. This was undermining the "early warning" system which
TSCA section 8(e) was meant to create.
       To address this concern,  EPA launched a TSCA section 8(e) Outreach and  Enforcement
Initiative in  late 1989. The EPA began by  issuing  over 700 letters to  corporations stressing  the
importance of data reporting, followed quickly by the filing of several administrative complaints and
notices of noncompliance against individual companies. After  getting the  industry's "attention,"
Agency representatives met with industry leaders to discuss TSCA section 8(e) issues and potential
releases from liability. The CAP program developed  from these meetings.
       The CAP consisted of a one-time voluntary audit program which gave industry a "window" to
comply with the data requirements of TSCA section 8(e), A two-phased  reporting schedule was
established; most health effects and aquatic toxicity information was received by the end of FY1992
and information on  the release  of chemical  substances to  and detection of chemicals in  the
environment will likely begin to be submitted to the Agency later in 1994. The Agency identified  "up
front" its enforcement response and allowed companies to assess their liability prior to electing to
participate. Stipulated penalties are assessed for each study submitted under the CAP with an overall
penalty ceiling of one million dollars per company.  Non-participants were warned that EPA would
actively peruse violations through  enforcement efforts.
       While the CAP program is not complete, the Agency views it preliminarily as an enforcement
and compliance success. More than 120 companies with more than 1,000 facilities have participated
in the CAP  to date. They range from large and small chemical companies to petroleum, aerospace
and electronics firms. Industry's awareness of section 8(e) reporting requirements  has been
heightened, and overall compliance improved. Over 10,000 health effects and/or  aquatic toxicity
studies have been submitted under the CAP, and total stipulated penalty could range from $10-20
Million.
       The CAP program is a good example of how the government can use corporate auditing to
leverage its compliance  efforts across several industries at once. The information gained under the
CAP also is currently being used for EPA risk assessment and  priority setting activities. Given its
success, it may provide a good model for other EPA programs interested in  innovative compliance
promotion and enforcement strategies to enhance their own data quality requirements.

3.3     Innovative injunctive relief

        Occasionally, a single enforcement action provides an important opportunity to suggest  new
directions.  In the  1970's, EPA's  actions against the  Reserve Mining  Company offered such an
opportunity to demonstrate the Agency's enforcement resolve. (11) It involved complex environmental
contamination of Lake Superior over a number of years. Millions of dollars were at stake and Agency
staff were pitted against highly skilled private counsel. The Agency saw this as a landmark case il
could  not afford to lose. It focused a substantial portion of its limited  resources to show that the
government meant business and  would see it through  to resolution.
        More recently,  we have  been able to use several "big cases" to promote innovative
technologies and management practices  to maximize environmental benefits.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          167


3.3.1   Louisiana Pacific: Innovative pollution prevention

       The Agency looks for opportunities to secure pollution prevention as injunctive relief, especially
when this approach could best eliminate recurring patterns of violations which are unlikely to be
corrected by additional "add on" controls  or  improved operations  and maintenance,  and where
elimination or substitution offers the best prospects for the permanent return to compliance.
       In another case settled  as  part of the  pulp and  paper initiative,  Louisiana Pacific, a
manufacturer of bleached kraft pulp,  settled violations of Clean Water Act NPDES effluent limits by
totally eliminating the use of chlorine in pulp bleaching [U.S. v. Louisiana Pacific Corporation, 78-0567
MHP (N.D. CA)j. The mill will eliminate the use of both elemental chlorine and chlorine dioxide through
a  new process which bleaches  pulp with  hydrogen peroxide and oxygen.  (12) As  part  of the
conversion process, bleach plant wastewater also will be recycled with the organic materials (BOD)
in the bleach  plant effluent recovered from the wastewater stream  and burned  for energy in the
recovery boiler. Under the terms of the consent decree, the project must be completed by September
1995. This settlement stands  as a major example of true innovation, i.e., the first time  we will see
"100%" commercial use of a new technology within a specific industry.

3.3.2  Louisiana Pacific: Transferring innovative technology across industries

       Occasionally, an enforcement action can result in the transfer of "state of the art" technology
from one industry to another. EPA secured  this type of innovative relief in a second case involving
the Louisiana  Pacific company [U.S. v. Louisiana Pacific Corporation, NO 93-0869 (W.D. La)].
       H_eje,  U^ governrjieiit_unj^^                                                     for
required Clean Air Act permits and provided incomplete or low estimates on air emissions at 11 of
its oriented strand board (ORB) and medium density fiberboard (MD) facilities located in nine states.
As a result of the company's failure to  report all its air emissions of VOC, PM and CO comprehensively,
neither the Federal nor state governments  would or  could accurately know the level of air  quality
deterioration in  the vicinity of the plants. In addition,  Louisiana Pacific avoided installing pollution
control equipment that would  have been required to prevent the significant deterioration of air quality
in an attainment area.  (13)
       In settling the case, Louisiana Pacific paid an $11 million penalty, the largest Clean Air penalty
in the Agency's history. In addition, the  Company is  implementing an extensive Clean Air Act
compliance program,  including obtaining all necessary air permits and complying with all necessary
requirements and regulations. In a major, innovative aspect of the settlement, EPA and the Department
of Justice (DOJ) convinced Louisiana Pacific to install a pollution control system based on regenerative
thermal oxidation (RTO) technology to control VOC and particulate matter from oil heaters and boilers,
dryers and presses. While RTO technology has been used in other manufacturing sectors—principally
in the printing and graphics industries to control emissions from solvent-based inks—it had not been
applied to the wood products industry. The Federal government believed that this technology was
applicable to this sector. As part of the case resolution, we insisted that the company agree to install
RTO at the appropriate facilities.
        Under the terms of the consent decree, the RTO technology must achieve a removal efficiency
of 90% of VOCs and  95% for particulate matter.  The estimated cost of installing this technology at
the  11 subject facilities is $70 million. The RTO  technology has been tried out on a pilot basis at
several facilities and has exceeded expectations, reducing VOC emissions by 98% instead of the
90% required  in the settlement. This results in additional benefits for the company, since reducing
the  extra amount  of pollution enables a facility to increase production.  In addition,  some facilities
might be able to operate in the future as  "minor" sources which  involve less  state and  federal
regulation. Other American wood product manufacturers have taken note of the success of the RTO
technology  and are beginning to adapt  it for use in their own OSB and MDF facilities, thereby
accelerating its diffusion throughout the industry.

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168                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In addition to technology transfer, the Louisiana Pacific settlement also served the purpose of
alerting tie wood products Industry about the obligation to completely and accurate report emissions
data to EPA and the States. Once companies realized that the Federal government took these reporting
violations seriously, they began to conduct their own internal audits and correct violations that they
discovered. The deterrence impact of the case was substantial throughout the industry.
       Overall, the settlement was a"win-win" success for both  EPA and Louisiana Pacific—the
government was able to transfer innovative technology into a new industrial sector and leveraged the
deterrent impact throughout the wood products Industry.  Louisiana Pacific will be able to operate its
facilities more efficiently and productively, while implementing a new technology which increases its
prospects for remaining in compliance in the future.

3.3.3   United Technologies: Leveraging the  impact of a Settlement through multi-facility
       environmental audits

       EPA's general case settlement strategy involves looking for  opportunities to maximize the
"leverage" or impact of individual cases, either by securing "extra" reductions in overall emissions at
a violating facility or to extend the provisions of the settlement to more than the single facility—or
facilities—in violation.
       One major  tool used  by EPA to secure  additional  environmental improvements  is the
multi-media, multi-facility  environmental audit. This approach was successfully applied in the civil
action against United Technologies Corporation (UTC). [U.S. v. United Technologies Corporation, No.
H-90-715  (JAC)].
       UTC, through Its  subsidiaries and  divisions is  a major government contractor of high
technology products, including jet engines and environmental controls, and helicopters. EPA filed a
civil suit charging the Company with over 150 RCRA violations, including: improper hazardous waste
container management,  storage of hazardous  waste without a  permit;  inadequate groundwater
monitoring and waste analysis plans). In addition, the State of Connecticut charged the Company
with Clean Water Act (multiple discharges from  its facilities into three different rivers in violation ol
NPDES effluent permit limits, as well as spills).
       The  large number of violations across several media indicated that the  Company lacked the
senior management controls necessary to ensure that environmental  requirements were begin giver
priority attention. Therefore, in addition to a total federal civil penalty of $4.25 million and another $1.05
million State penalty, (14) the consent decree  also requires UTC to implement an extensive multi-medis
environmental audit at all  26 of its facilities located in the Northeast portion of the United States. This
is among the most extensive environmental audits ever agreed to in an EPA enforcement action.
       The settlement requires both a management audit and a compliance audit. The first feature
is an audit of UTC's environmental management systems and programs. UTC must hire a consultart
to audit all of its business units in order to  assess the company's ability to comply with all federa
environmental laws. The consultant will then develop a set of recommendations  concerning how UTC
can improve its management systems in order to ensure environmental compliance and outline, foi
any existing systems for which no changes are recommended, how the current systems are adequate
to ensure compliance. Based upon the consultant's recommendations, UTC  must then submit £
Management System Improvement Plan (MSIP)  to EPA. The  MSIP will describe all the actions the
Company has taken or plans to take to address the recommendations made by the consultant. (15]
UTC  must  implement the MSIP, and the  consultant will visit  each facility to determine if the
recommendations are, indeed, being  carried out.
       The settlement also requires UTC to hire an audit firm to conduct multi-media environmental audits
at tie subject facilities, after tie management audit is finished and the MSIP has been implemented. First
the audit firm will inspect  each facility  (which includes observing actual operations and sampling anc
testing waste or process streams as necessary) and review all facility records related to environments
compliance. Next, the audit firm will  issue a compliance audit report for each facility, setting fort
each potential violation of any environmental laws that may have occurred since the submission o

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         169


the MSIP. After the submission of the compliance audit reports, EPA and UTC will negotiate a penalty
for the violations cited. If the parties are unable to reach an agreement on the penalties, the matter
will be submitted to the Court. In addition, UTC will be required to correct all violations with a 60-day
period (or longer, if both parties agree to an extended compliance schedule for particular violations).
The audit firm will ensure that all violations are corrected.
       UTC also will be required to conduct additional audits on an annual basis for three years.
After each annual audit, UTC will submit to EPA a report addressing the specific violations discovered
and explaining how the violations will be avoided in the future.  While not explicitly covered in the
consent decree, by implementing the requirements  of the Court order, the Company will probably
reduce the likelihood of future enforcement and assessment of subsequent penalties. Supplemental
Environmental Projects (SEPs) incorporated in the judgement, in turn provide an additional opportunity
for the government to improve environmental outcomes through  the original action. (16)

3.3.4   Dexter Corporation:  Combining civil and criminal liabilities

       Occasionally, there may be an opportunity for  bringing  several enforcement  tools and
authorities to bear to achieve a comprehensive injunctive relief. One of the most significant settlements
under the pulp and paper initiative involved the Dexter Corporation, a major specialty paper producer
[U.S.  and State of Connecticut v. Dexter Corporation, H-89-393 (AHN)]. A "global settlement" which
encompassed both civil and criminal enforcement actions, Dexter  agreed to pay more than $13 million
in criminal fines and civil penalties for  violations  of both  the Clean Water Act and the Resource
Conservation and  Recovery Act. In addition, the  consent decree  requires the company to install
equipment to teat both toxic and non-toxic pollutants, prepare a spill prevention-plan, and to perform
extra  monitoring. The company also had  to cleanup hazardous waste areas at the facility and perform
a multi-facility environmental compliance audit.
4     SECURING "EXTRA" ENVIRONMENTAL RELIEF THROUGH SUPPLEMENTAL
       ENVIRONMENTAL PROJECTS (SEPs) IN ENFORCEMENT SETTLEMENTS

       So far, this paper has tended to emphasize the success that can be developed through single,
complex, resource intensive cases which involve significant injunctive relief or innovative technology.
However, the aggregate environmental benefits that can be secured through the "leveraging" of many
smaller cases also can be significant.
       When settling a case, EPA policy requires the imposition of an appropriate civil penalty. EPA's
penalty policies circumscribe the government's overall discretion, but provide some flexibility to reduce
the amount of a civil penalty in  exchange for the defendant's promise to clean  up the environment
beyond what the government could have forced it to do as injunctive relief. (17} EPA generally secures
these "extra" environmental benefits as "Supplemental Environmental Projects" (SEPs).  SEPs do not
correct the violation itself (i.e., they are not injunctive relief) but are included in the consent order or
decree because of the extra environmental benefits they provide beyond the  return to compliance.
When  carefully crafted  and implemented, SEPs  improve  the injured  environment or reduce the total
risk burden posed to the public health or environment and  can also push the development of new
pollution control technology applicable to other sources and  source categories. (18)

4.1    Categories of SEPs

4.1.1   Pollution prevention

       A pollution prevention  project substantially reduces or prevents the generation or creation of
pollutants through use reduction (i.e., by changing industrial processes, or by substituting different
fuels or materials;) or through application of closed-loop  processes.

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170                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4.1.2   Pollution reduction

       A pollution reduction  project is  defined  as a project which  goes substantially  beyond
compliance with discharge limitations to further reduce the amount of pollution that would otherwise
be discharged into the environment, e.g.,  one that reduces the discharge of pollutants through more
effective end-of-pipe or stack removal technologies.

4.1.3   Environmental restoration

       An environmenta! restoration project is defined as a project that not only repairs the damage
done  to the environment  because of the violation, but which goes beyond repair to enhance the
environment in the vicinity of the violating facility.

4.1.4   Environmental auditing

       Environmental  Auditing  projects  identify  and correct existing management and/or
environmental practices whose deficiencies appear to be  contributing to recurring or potential
violations. These other potential violations  may exist not only at the violating facility,  but  at other
facilities owned and operated by the defendant/respondent.

4.1.5   Public awareness projects

       Public Awareness Projects are publications, broadcasts or seminars which underscore for the
regulated community the importance of complying with environmental laws or disseminate technical
information about the means of complying with environmental laws.

4.1.6   Aid to local emergency planning organizations

       Defendants can give computers, hazardous material response equipment and other types of
support to Local Emergsncy Planning Organizations, which  are established under the Emergency
Planning and Community Right to Know Act (EPCRA).
       The table  printed  below provides summary information  on SEPs negotiated  by the Agency
for FY 1992.  Together, 80%  of all  SEPs  negotiated involved Pollution Reduction and Pollution
Prevention. The remaining 20% were  distributed among Environmental Auditing, support for Local
Emergency Planning Committees, and Environmental Restoration, and Public Awareness projects.
Taken Together, Pollution Prevention and  Pollution  Reduction SEPs had  an estimated dollar value of
almost $15.7M (31%) and Pollution Reduction SEPs had an  estimated dollar  value of over $29.7M
(59%).

       Supplemental Environmental Projects  by Type and Value
Type Sep
Pollution reduction
Pollution prevention
Environmental audit
Public awareness
Aid to LEPCs/SERCs
Environmental restoration
Total seps in FY 1992
No.
115
62
19
12
10
4
222
(%)
(52%)
(28%)
(09%)
(05%)
(04%)
(02%)

$ Value
$29.7M
$ 15.7M
$ 3.0M
$ ,5M
$ .1M
$ 1.1M

<%)
(59%)
(31%)
(06%)
(01%)
(<1%)
(02%)

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          171
4.2    Pollution prevention: Most preferred type of SEP

       The Executive Branch is limited in its authority to impose unilaterally in an enforcement action
specific pollution prevention technologies  or methodologies in the absence of an enforceable
requirement which mandates such an approach. In many instances, the regulated facility Is charged
with choosing tho method of compliance with environmental requirements, i.e., either an innovative
source reduction methodology or a more traditional "end of pipe" approach. Meeting the performance
standard articulated in the order, however, is non-negotiable. The burden clearly falls on the violator
to meet the articulated goal, even if new unproven technology is  chosen,
       SEPs that contain pollution prevention conditions are the type most preferred by the Agency,
because of the permanent environmental benefits  of source  reduction. We encourage  federal
government negotiators to incorporate pollution prevention conditions in both single and multi-media
settlements when feasible. General examples of pollution prevention activities included in SEPs
include: product  change  (e.g., manufacturing water-based  inks instead of solvent-based ones);
process change (e.g., using non-hazardous input chemicals, changing to mechanical stripping or
cleaning devices to avoid solvent use); and improved operating practices (e.g.,  segregating waste
streams to avoid cross-contaminating hazardous and non-hazardous materials).
       The specific types of source reduction activities contained in the  Pollution Prevention SEPs
negotiated by EPA in FY1992 were: Input Chemical Substitution (34%), Closed-Loop Recycling (22%),
New Equipment (18%), and Process Change (25%), along with partial estimates of the environmental
impact of the SEPs (e.g., the amount of high toxic solvents replaced with lower toxic solvents, the
reduction pollutant loadings (either emissions or discharges, etc.). The following table provides some
information on the known reductions secured through pollution prevention SEPs.


                            Chemicals in Pollution Prevention Seps:
                            Approximate Amount Reduced/Eliminated
                            1,1,1 TCE                    186,400 Ibs/yr
                            Toulene                       87,300 Ibs/yr
	-	MEK   	30,OOQ!bs/yr	
                            Xylene                        32,855 fbs/yr
                            Sulfuric acid                    8,850 Ibs/yr
                            Freon                         8,730 gal/yr
                            Acetone                     250,000 Ibs/yr
                            VOCs                         8,500 Ibs/yr
                            Ammonia*                   1,500,000 Ibs/yr


 4.3     Diffusion of pollution prevention technology through SEPs: The meta! finishing industry

        SEPs can provide important environmental benefits within particular industries. For example,
 many of the processes used by metal products manufacturers can yield environmentally problematical
 residual by-products, (e.g., metal plating, painting and degreasing). As a result, they have been the
 object of significant regulation and enforcement by EPA. The industry profile is that of a large number
 of smaller facilities, rather than concentration within a few large firms. Therefore, the environmental
 benefits secured by pollution prevention efforts in this area often  result less from  technological
 innovation in a few "big" cases, than from the diffusion of technology—primaYily the substitution of
 solvent-based cleaning systems  by aqueous or mechanical cleaning systems—throughout many
 smaller cases.

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172                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In one recent case,  the  EPA and a company which  manufactures engineered  pump
components from metal and ceramic materials using machining and lapping equipment, failed to file
required data on phosphoric acid, 1,1,1, trichloroethane (TCE), xylene, and methyl ethyl ketone under
EPCRA Section 313 (42 U.S. Code 11023). The company traditionally used TCE solvent immersion
cleaning units for the  majority of both in-process and final cleaning operations. As part of the case
resolution, the company performed a SEP which consisted of changes to the company's parts
cleaning system to retrofit a TCE degreaser used on non-metal lapped parts to reduce solvent use
and emissions. This approach was designed to reduce the amount of TCE used by 130,000 Ibs/year
for that facility aione.  The company also  purchased, installed and tested equipment to switch from
solvent to semi-aqueous-based cleaning of ferrous and non-ferrous metal parts. The company spent
approximately $201K  on the SER
       In another SER a company manufacturing solid cast brass nuts and bolts and chrome plated
tubular plumbing supplies violated several RCRA requirements, including failure to close hazardous
waste storage containers of oil and alkaline solutions and chromic acid, and failure to label hazardous
waste containers of lead  contaminated polishing dust, mixed oil and alkaline solutions, and chromic
acid. The company proposed a multi-part SEP to modify the automatic plating line  and to  collect
polishing dust more effectively. To reduce the polishing dust waste, the company replaced the existing
nickel tank with a longer  tank. The tank, along with a longer part  cycle time, is designed to improve
the surface finish of the part so that a larger percentage of parts do not need polishing to achieve
satisfactory chrome plating. The reduction in polishing is designed to reduce the generation of dust
by 65-85%. To reduce the generation of metal hydroxide sludge, the  company proposed to convert
the chrome bath from hsxavalent chromium to less toxic trivalent  chromium. It projected this change
to reduce the proportion of solids in the  waste  stream by 33% and reduce metal hydroxide sludge
generation by 5,500 gallons/year. The switch to trivalent chromium also eliminated approximately 330
gallons of chromic acid annually during the cleanup and disposal of the chrome plating tank. The
estimated cost of the SEP is $170K.
5     CONCLUSION

       As the Agency's regulatory responsibilities grow, vigilant enforcement is essential to its
success In protecting human health and the environment. The strategies, techniques, and approaches
which we will use to achieve and evaluate success also will continue to change. (19) The Agency's
increasing emphasis on risk based, multi-media targeting and the use of the enforcement process
to promote innovative technologies will continue to present both a challenge and an opportunity. The
challenge will be to maintain this  high level of success in enforcement while enhancing the use ol
these technologies by the regulated community. The opportunity recognizes  that these approaches
are an integral component of the  innovative, environmental results-based and multi-media orientec
enforcement approach which the Agency will continue to use in the future.
       REFERENCES/ENDNOTES

  1. The authors would like to thank Amelia Katzen of EPA's Region I Office of Regional Council, anc
    Julie Domike and Andrew Cherry of EPA Headquarters Office of Enforcement and Compliance
    Assurance for their contributions to this paper.
  2. "Improving the Efficiency and Effectiveness of Compliance Monitoring and Enforcement o'
    Environmental Policies,"  Cheryl Wasserman.  Prepared for the Organization for  Economic
    Cooperation and Development, 1987.
  3, See Wasserman, VI-14

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 4. Wasserman, VI-16

 5. See case study of the National Municipal Policy in the Principles of Environmental Enforcement,
    EPA/300-F-93-001

 6. The Agency's enforcement targeting and case screening procedures are fully described in EPA's
    Enforcement Four-Year Strategic Plan, issued July, 1992, and Regional Enforcement Management:
    Enhanced Regional Case Screening, December 3,1990.

 7, Lynn Peterson's paper will describe in detail the geographic initiative targeting the Great Lakes.
    Bob Van Heuvelen's paper will discuss the mechanics of developing and implementing national
    enforcement initiatives.

 8. EPA collects annual data on toxic chemical releases under section 313 of the Emergency Planning
    and Community-Right-to Know Act (EPCRA).

 9. One of the goals of the "illegal operators"  initiative was to create a public enforcement presence
    for deterrence. This goal appears to  have been met. Subsequent reporting  by the regulated
    community has been higher as a result of the initiative. And although there is no statistical data
    to indicate that these compliance rates rose specifically as a result of the initiative, the general
    perception  on the part of the regulated community was  that the Agency's publicizing of this
    initiative had ;an obvious deterrent impact.
 10. TSCA section 8(e) (15 U.S.  Code 2601) requirements apply to any person who manufactures,
    imports, processes  or  distributes a  chemical substance or mixture and who obtains "new"
    information that supports a  conclusion that such substances or  mixtures present a substantial
    risk of injury to health or the environment. This information must  be submitted promptly to EPA
    for further review.
 11. EPA sued the Reserve Mining Company for dumping taconite Iron ore tailings in Lake Superior,
    producing an asbestos fibers health hazard in the land and water.

 12, This approach is known as totally chlorine free (TCF).
 13. Under the Clean Air Act, companies  located in attainment areas are limited  in the amount of
    additional pollution they can emit.
 14. $3.7 Million of the total penally is for federal RCRA violations, the  largest RCRA cMI penalty ever
    assessed by EPA.
 15. The MISP must address each specific recommendation and provide a rationale and justification
    for the actions UTC will take to address any problems identified.

 16. See section 4 for a more detailed discussion of SEPs.

 17, See "General Framework for the Assessment of Civil Penalties," August 24,1984. Penalties consist
    of 2components: A "gravity-based" factor, which represents the seriousness of the violation, and
    the "economic benefit" factor, which  represents the amount of  money the violatorsaved as a
    result of his noncompliance. The size of the final penalty must, at a minimum, reflect the economic
    benefit of the violation.

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18.  "Policy on the Use of Supplemental Environmental Projects in Enforcement Settlements," February
    12, 1991. Currently.ttie Agency negotiates six categories of SEPs: pollution prevention, pollution
    reduction,  environmental restoration, environmental auditing, public awareness projects.and
    support to Local Emergency  Planning  Committees  under the Emergency  Planning  and
    Community Right to Know Act (EPCRA).  Pollution prevention SEPs are  the Agency's most
    preferredcategory of SEPs.

    The SEP Policy requires that the settlement include a cash penalty which captures the economic
    benefit  of non-compliance plus a portion of the gravity component. SEPsmay be negotiated in
    exchange for a  reduction in  the size of the assessed penalty, although  the amount of  that
    reduction will generally  not fall  below the economic benefit of noncompliance. Similarly, the
    Agency normally seeks at least a 2:1 penalty mitigation ratio (i.e., the defendant spends at least
    $2 on the SEP for every $1 the penalty isreduced).

19.  Administrator Browner's recent reorganization of the new Office of Enforcement and Compliance
    Assurance will result in a more integrated enforcement program which will promote the expanded
    use of many of the approaches  described in this paper.

    The principles underlying the reorganization  includemeasuring enforcement success  through
    improvement incompliance rates and environmental results, rather than through an exclusive
    reliance on the "number" of enforcement actions," as well  instituting a "multi media,"  and
    "wholefacility" compliance and enforcement approach organized around major  sectors of the
    economy. This approach will  result in more "particularized"  sector expertise within the  Agency,
    which will enhance the  use  of pollution prevention and other  innovative techniques in the
    enforcement program.

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THE INTEREST OF COOPERATION BETWEEN POLICE PUBLIC PROSECUTORS
AND GOVERNMENTAL AUTHORITIES IN THE FIELD OF
ENVIRONMENTAL ENFORCEMENT

VAN DIJK, J.

Member Executive Committee, Provincial Council, Province of Groningen, Provincie Groningen,
Provinciaal Bestuur, Postbus 610,9700 AP Groningen


       SUMMARY

       The paper includes a short explanation of the constitutional organisation in The Netherlands.
The organisation of  the  responsibilities of  the province, as the 'middle level' of government is
discussed. An actual example, that of polluted sludge, is used to demonstrate how the cooperation
between police and general government can lead to satisfying results. Finally, several recomendations
are made with  respect  to policy and legislation  in the  future,  in the  field of enforcement of
environmental law.
 1      INTRODUCTION

       A general impression of the duties of the different levels of government in the Netherlands,
 especially those of the province, will firstly be given.
       It is important to note that the Netherlands has a parliamentary democracy on all three levels
 of government. 1 "his requires a system of cooperation between the government and parliament for
 central government, the province and the municipality. Since a system of proportional representation
 is abided by the government needs a parliamentary majority each time items of policy are changed
 or produced. The  government works under the rule  of law,  which means that the power of
 governmental bodies is based on a legal competence.

 1.1    Decentralization

       The State of the Netherlands is a unitary, but decentralized state. The framework of the State
 and State laws comprises of:
       • provinces
       • municipalities

       On  a spacial  level these  both consist of a region which is  part of the State's land.  The
 governments of the provinces and the  municipalities have their own  councils of elected
 representatives. They work in the general interest of the public inhabiting these regions.

 1.2    Main responsibility to ministers

       The main duties and aims of policy have been assigned to the ministers of state. Specific
 planning systems have been set up for most of the fields of policy, both on the national and provincial
 level. For example:
       • environmental plans
       • spacial plans
       • water management plans

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176                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      THE PROVINCIAL ORGANIZATION

       There are three organs that govern the province:
       * The  Provincial  Council or Provincial  State. This is the provincial  parliament
         consisting of 55 members, directly chosen by the inhabitants of the province.
       • The Executive Committee, comprising of 7 members, chosen from the members
         of the Provincial  Council. Theirs is a full time job, governing the province. As a
         member of this committee the author is responsible for affairs in the field of the
         environment, agriculture, nature, landscape and public information.
       » The  Queen's Commissioner, who is appointed  by the Queen.  He chairs the
         Council and the Executive Committee.

       There is also a provincial administration helping the Executive Committee to prepare and
implement policy in all the  different fields.
       The  province consists of seven different departments, including the department of water
quality, spaciai planning, traffic and transport, welfare and economic affairs, and the environment and
water management.

2.1    Decentralization/role of the province

       Since 1970 there has been a great increase in the amount of legislation in the. fields of the
environment and water management. Many of the tasks and responsibilities have been decentralized
to the province, municipality or water board.
       It is important to emphasize that the province has an important  strategic role in the field of;
       » spaciai planning/land use;
       • environmental planning;
       » water management planning.

       Although there is no formal hierarchy between .the national and  the provincial environmental
policy plans, the provincisil  government takes account of the main aims of the national environmental
policy plan, as well as those of the European Community. Besides planning the province is responsible
for granting and enforcing  permits to larger industries and installations, and to large-scale activities
in the open field, with the Executive Committee as the competant authority.

2.2    Task of municipalities

       The municipalities are not obliged to make an environmental policy plan. However they are
responsible for granting and enforcing permits for installations, buisinesses and activities in the open
field with less environmental impact.
 3     ENFORCEMENT ACTIVITIES OF THE PROVINCE

       The enforcement activities of the province will now be discussed.

 3.1    Inspection and control activities

       The province is the competent authority to grant licenses and also carry out inspections to
 enforce the environmental law. Therefore several civil servants have been appointed as provincial
 inspectors. They regularly pay visits to the permit-holding industries and firms.

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3.2    Coordination and enforcement activities

       Many authorities are involved in enforcing environmental law in The Netherlands, Enforcement
does not only Involve administrative enforcement, but also the police and the Public Prosecutor tracing
and persecuting  criminal  activities  which break the environmental  laws. Close cooperation is
necessary to achieve good results. The provincial administration, as the administrative body on the
'middle level1 has been given the legal  responsibility to organise regular meetings between the
representatives of the organisations involved with enforcing the environmental laws. It has done so
by instating a consultative body.

3.3    Tasks of the provincial policy council for environmental law enforcement

       • To compare and adjust the enforcement policy of all the authorities involved.
       • To set up a network for enforcement and to promote cooperation.
       • To exchange all kinds of enforcement information.
       » Scenario.

       The 'Scenario enforcement of environmental law for the province of Groningen' discusses the
common aspects of enforcement, which are of importance for all the authorities and for the different
regulations. Things discussed Include general aspects such as:
       • publicity
       » exchange of information
       • coordination
       • recommendations concerning the supervision
       » the choice between a criminal and/or administrative approach.

       The scenario also deals with diverse specific subjects such as fertilizer and waste products.
It also concentrates on what (and at what point in time) is expected from whom with respect to
specific issues.
       Good_ administration and official consultation also takes place  on a local level between the
municipalities, province,  police, inspection service and Public Prosecutor. These consultations take
place regularly (5 to 7 times a year). These consultations also allow the participants to get to know
one another better.
 4     CASE STUDY: HOW THE ENFORCEMENT AGREEMENTS IN THE FIELD WORK;
       CLOSE COOPERATION IN TACKLING POLLUTED SLUDGE

       The prevention of the spread of material mixed with polluted sludge, which looks like compost,
 is a good example of close cooperation between all the authorities involved in the enforcement of
 environmental law.

 4.1    What Is the problem?

       Farmers are offered compost-like material to be used as organic fertilizer on their land, against
 very low prices. Any reasonably intelligent person should realize that something is not quite right if
 they are offered fertilizer at such a low price, or are even offered money to accept the material.
 Fertilizers which do have a positive effect on the fertility of the soil always cost money. Those farmers
 which accept the 'compost' therefore must have a guilty consciense. Not only regarding society and
 the environment, but also regarding their own farm. The soil itself is the basis of high production for
 the farmer. Thus to take such a large risk of damaging and even permanently polluting the soil seems

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178                         • THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
incomprehensible to me. Since this kind of activity can take place all over the place it is very difficult
to trace it, The role of the local police is therefore very important.
       Some time ago approximately 4,000 tons of this 'compost' was found being stored without
a permit in a village in the province. Partly because;of the good agreements laid down in the scenario,
it was possible to discuss the problem with all the enforcers involved early on. Each one of them had
their own role and contribution.  The police had the role of keeping their eyes open in the field,
combined with  their  experience and authorities in the  criminal detection work in such cases. The
inspector from the Ministry of Agriculture, Nature and Fisheries applied  his knowledge of the
composition of fertilizers and the trade in fertilizers. The police informed the province of the problem
as soon as they suspected illegal waste processing. They began to suspect this because ttie material
was radiating heat and ft smelt unpleasant.
       A permit from the province is necessary for the storage, processing or spreading of large
amounts of waste. Since it was necessary that the government reacted quickly and effectively it was
necessary to organize a 'temporary measure' to allow the police to take samples and test these on
their chemical composition. Therefore the Public Prosecutor forbade the owner of tie terrain to dump
the material or spread or dispose of it without having  the province's permission. The ban was
applicable  until that  time that the province  had decided what to do with the material. Tests soon
snowed that the material was actually polluted sludge which could not be spread on the land. Further
analysis was necessary to establish which dump the waste should be sent to.
        The legal procedure brought against the province's decision by the owner of the terrain, is
still in process. This means that the Public Prosecutors temporary measure is still in effect.

4.2     Discussion

        Initially no articles were published in the press, to allow the research to go smoothly. Even
though it was not certain whether the material was polluted sludge right from the start, it was known
that this type of waste is being offered in several places outside the  province. It was believed that
the farmers in the province should be warned about the trade in such materials. Before doing so an
emergency meeting was held at the provincial headquarters, in which the province, the governmental
inspectors from the Ministry of Agriculture and the Ministry of the Environment, the police and the
Public Prosecutor were invited to discuss the situation with one another to agree on a joint point of
view. This was a very useful meeting.

4.3     Publicity

        The unions for the agricultural organisations were obviously the most  suitable partner to help
write and publish the warning to the land users. The joint press release had effect, since a large
amount of attention was paid to it in both the regional and national papers as well as on local radio.

4.4     Conclusion

        The close cooperation on local, provincial and national level, with as its aim adequate action
against this suspected violation was successful. The network which had been established functioned
well.  It appears that the wish  for close cooperation between the different qualified authorities
deflnately exists.

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5      RECOMMENDATIONS

5.1    'Chain1 supervision

       This is a very important point. This whole enforcement case took place at the end of the
'chain'. Transportations are followed or discovered via other  methods. The  'compost'  is often
immediately spread and then the damage has already been done. It is important that the source of
the waste is discovered. The necessary measures should then be taken to prevent or limit production
and if necessary to process the waste. Here lies a stimulatory role for the provincial administration.
A  national and international approach should be established, together with central government and
the ministries and authorities involved.

5.2    Combatting criminality

       It is important to draw attention to combatting environmental criminality.  Experts in this field
believe that the detective force should start thinking in a totally different way. They are tackling people
and companies that have a buisiness-like approach to environmental pollution and earn large amounts
of money in this way. These people do not allow themselves to be caught as a result of forms that
have not been filled in  properly or because of (waste) accounts which do not make sense. Instead
attention should be paid to chains of transport, storage and processing, both on a national and
international scale; a wry different approach.

5.3    Necessary measures                :

       The legislator should take adequate measures  which are appropriate to the  problem. The
existing  regulations, both international, national  and provincial, shall continually be critically
considered, so that they remain appropriate to the developments in the environment and society.

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THE GREAT LAKES ENFORCEMENT STRATEGY: USING ENFORCEMENT
RESOURCES TO MAXIMIZE RISK REDUCTION AND ENVIRONMENTAL
RESTORATION IN THE GREAT LAKES BASIN

PETERSON, LYNN

Chief, Solid Waste and Emergency Response Branch, Office of Regional Counsel, U.S. Environmental
Protection Agency, Region V, 77 West Jackson Boulevard, Chicago, Illinois 60604 USA

Note: The author would like to acknowledge the assistance of Sarah J. Biaisdell, U.S. EPA, in helping
to prepare this paper.


       SUMMARY

       This paper discusses the enforcement strategy of the U.S. Environmental Protection Agency
(U.S. EPA) in the Great Lakes Basin, specifically focusing on our experience since 1990 in developing
and implementing a geographically targeted  enforcement strategy for reducing toxins in  this area.
The four key features  of the strategy, namely risk-based  targeting,  multi-media enforcement,
supplemental  environmental projects, and environmental indicators, are discussed in detail. Several
maps, charts, and graphs are used to illustrate these points.


1      INTRODUCTION

       Since  waterways such as the Great Lakes have long served as a convenient, cheap means
of transportation and source of energy, it is not surprising that our most concentrated industrial activity
often centered on our most sensitive ecosystems. When intensive industrial activity occurs in sensitive
ecosystems over long periods of time, the cost, of reversing environmental damage and reducing the
risk to human health can be enormous. For this reason and others, few countries can afford to use
limited environmental enforcement resources in a-purely reactive manner; instead,-we must learn and
teach means  of maximizing the environmental benefit that can be derived from limited enforcement
resources. This paper shares the experience of U.S. EPA in developing an enforcement strategy that
tries to maximize environmental benefit in the Great Lakes Basin.
 2     THE ENVIRONMENTAL PROBLEM

       More than 40 million people live in the Great Lakes Basin, including nearly 20 percent of the
 total U.S. population and 50 percent of the Canadian population (1). Over 23 million people depend
 on the Great Lakes for drinking water. For the last century, it has also been the industrial heartland
 of both countries. One quarter of all U.S. industry and more than 70 percent of U.S. and 60 percent
 of Canadian steel production occurs in the Great Lakes Basin, one of the largest fresh water systems
 in the world. The Great Lakes basin is a "sink ecosystem" such that contamination flows into it from
 a wide surrounding area, including Canada. Also, airborne contaminants such as DDT are suspected
 to be coming to the  Great Lakes from as far away as Central America (2). Thus, the problem is not
 merely regional, taut  national and international in scope.
       Over the past several years, U.S. EPA has begun developing and implementing a multi-media,
 geographically focused enforcement strategy for protection of the Great Lakes (Great Lakes
 Enforcement Strategy). The ultimate goal of this new approach is to restore the chemical, physical,
 and biological integrity of the Great Lakes  Basin ecosystem. Due  to  the enormous scope of
 environmental problems in the Great Lakes Basin, U.S. EPA has emphasized the need to respond to

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182                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
pollution in the context of the entire ecosystem and to focus on the reduction of risk to humans and
the environment. More specifically, the Great Lakes Enforcement Strategy is expected to assist U.S.
EPA in meeting the following goals: a 50% reduction in toxic loadings to the Great Lakes by 1996
and a significant measurable restoration of critical habitats and natural resources within the Great
Lakes Basin.
3      INSTITUTIONAL FRAMEWORK

       The new enforcement strategy for the Great Lakes Basin was built upon the foundation of the
Great Lakes Water Quality Agreement (GLWQA), which was signed by U.S.  President Nixon and
Canadian Prime Minister Trudeau on April 15,1972 (3). The GLWQA, and its subsequent amendments,
establishes a plan to restore and preserve the Great Lakes water quality.
       According to the 1987 Protocol which amended the GLWQA, both the United States and
Canada must consult with the State  (Minnesota, Wisconsin,  Illinois, Indiana, Ohio, Michigan,
Pennsylvania, and New York) or Provincial  (Ontario and Quebec) governments to designate "Areas
of Concern" (AOC), areas which have been chemically or physically degraded by critical pollutants.
(See Attachment 1 - The Great Lakes and Surrounding Area) Currently, there are 43 AOCs: 26 wholly
in the U.S., 12 wholly in Canada, and five jointly administered by the U.S. and Canada. One example
of an AOC is the Indiana Harbor/Grand Calumet River, which has formed the centerpiece of U.S.
EPA's Northwest Indiana/Southeast Chicago  Geographic  Enforcement Initiative (GEI).  (See
Attachment 2 - SE Chicago-NW Indiana GEI ZIP Areas.)
       Responsibilities under the GLWQA  have been delegated to U.S. EPA, which works with the
relevant state environmental agencies in the U.S., while in Canada, Environment Canada works with
the Ministry of Environment and Energy for Ontario and the Ministry of Environment for Quebec.
Though it is primarily U.S. EPA which is using the Great Lakes Basin as a proving ground for the
effectiveness of new enforcement strategies, some state environmental agencies and provincial
ministries are following U.S. EPA's  progress to determine whether some of these approaches may
be worth adopting.
       Within U.S. EPA, there are three regions that work together to implement GLWQA. Region V
in Chicago covers six of the eight  Great Lakes states: Illinois, Indiana, Michigan, Wisconsin, Ohio,
and Minnesota. The remaining two states,  Pennsylvania and New York, are covered by Regions ill
and II, respectively. Because U.S. EPA Region V and Canada share a  1,200 mile border along the
Great Lakes, close ties exist between U.S. EPA with both Environment Canada and the Ministry of
Environment and Energy for Ontario. For example, we do joint border inspections regarding hazardous
waste import/export, and we also share leads on criminal activity. However, the strategies described
in this paper have thus far been used only by U.S. EPA.
4     INNOVATIVE ENFORCEMENT STRATEGIES IN THE GREAT LAKES BASIN: FOUR
       DISTINGUISHING FEATURES

       Four key features distinguish the Great Lakes Enforcement Strategy from U.S. EPA's traditional
mode of enforcement:
       •  Risk-based targeting of areas within the Great Lakes Basin for an intensified overall
          enforcement effort, and then targeting:for inspection specific facilities within the
          selected geographic initiative based on  health/environmental  risk factors and
          history of compliance profiles.
       •  Comprehensive, integrated environmental inspection and follow-up enforcement
          under all environmental laws/programs and media, e.g., air, water,  waste and so
          forth ("multi-media" inspection and enforcement).

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       • Penalty or fine mitigation in exchange for Supplemental Environmental Projects.
       • Measuring  the  success  of these enforcement strategies by  developing and
         monitoring "environmental indicators," i.e., indicators of quantifiable risk reduction
         or improvement in environmental conditions over specified periods of time.

4.1     Risk-based targeting: geographic and facility-specific

4.1.1   Geographic targeting

       The first feature distinguishing the Great Lakes  Enforcement Strategy  is the targeting of
selected geographic areas within  the Great Lakes Basin for  intensified  enforcement efforts. As
snvironmental laws and  regulations have multiplied,  it  has become increasingly clear  that the
government will rarely, if  ever, have the resources necessary to regularly inspect all facilities for
oompliance with all environmental laws and regulations. Even Region V of U.S. EPA, with the majority
of its 1,000 employees and 100 lawyers devoted to enforcement on the U.S. side of the Great Lakes
Basin,  cannot inspect all  the  regulated facilities within  the Basin and  ensure compliance under all
environmental laws. In the past, U.S.  EPA's inspection  priorities focused mainly on "significant
violators" (e.g., those facilities significantly deviating from important  environmental standards) or
"major sources" as determined by the size of the emission or discharge. Complaints by citizens or
state and local governments would also influence priorities. These approaches were sometimes
supplemented by initiatives to inspect those facilities subject to recently promulgated regulations
(e.g., the boiler and industrial furnace regulation). However, these approaches to solving the problem
of limited inspection and enforcement resources did not seem to net any measurable environmental
improvement.
       This has resulted in a shift of U.S. EPA's inspection and enforcement resources towards high
risk or heavy polluting facilities within the most heavily polluted districts in the Great Lakes  Basin.
This shift began in 1989 as Region V established the "Geographic  Enforcement Initiative" (GEI) in
Southeast Chicago and Northwest Indiana. U.S.  EPA selected this area for a number of reasons
discussed below.
       By concentrating inspection and enforcement resources on such a clearly defined geographic
area for a period of five to eight years, U.S. EPA expects to achieve measurable risk reduction and
environmental restoration  in three ways:
       • First, by bringing  more judicial/administrative  enforcement actions against high
         polluting/noncomplying  facilities in a  designated area,  Region V  expects to
         increase compliance among those facilities directly targeted.
       • Second, by communicating  better to  the public  the goals  of  the  geographic
         initiative  and results of those enforcement actions within the selected geographic
         area, U.S. EPA could deter noncompliance by all industry/local  governments
         operating within the high risk area.
       • Third, the geographic initiative would encourage regulated facilities to implement
         pollution prevention projects and waste minimization projects as a means of either
         exempting  themselves entirely from  certain regulatory requirements or at least
         minimizing the risk of violating such requirements because of effluent or emission
         exceedences.

4.1.2   GB

       Which geographic areas  are being selected, and what kinds of criteria are being used to
make these selections? An important factor in choosing areas for concentrated enforcement in the
Great Lakes Basin is the expert judgment that has already been made under the GLWQA as to which
areas present the greatest risk to health and the environment, i.e., the so-called "Areas of Concern"

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184                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
(AOC's) designated by the U.S. and Great Lakes States under the GLWQA. The states must prepare
Remedial Action Plans (RAPs) for each AOC within its boundaries; however, the cost of implementing
the RAPs, which are designed to restore all beneficial uses within the AOC, is frequently in the millions
of dollars ($45 million to $600 million) and beyond the means of federal and state coffers (4). Thus,
enforcement actions and settlements which incorporate "environmental  restoration projects" are
particularly valuable in the AOC's, This was certainly one of the major factors driving the selection ol
Northwest Indiana/Southeast Chicago as the first GEL Northwest Indiana contains one of the most
heavily polluted AOC's, known as the Indiana Harbor/Grand Calumet River.
       Other factors contributing to the selection of this and other areas for intensified enforcemenl
are also those indicating a  significant health or ecological risk.  Toxic releases as recorded in U.S.
EPA's Toxic Release Inventory (TRI), discussed below, are another key consideration (5). For example,
Southeast Chicago and Northwest Indiana have much higher TRI emissions than most other areas
within the Great Lakes  Basin. Approximately 333 million pounds of  TRI chemicals were released ir
this area in 1988. Similarly,  a 1989 U.S.  EPA study of air pollution showed significantly higher rates
of cancer resulting from air  exposure in Southeast Chicago (6).
       In selecting geographic areas for intensified enforcement, U.S. EPA also gives weight to those
environmental  problems which directly impinge on the economic vitality of an area. For example
sediment contamination plagues the Indiana Harbor to such an extent that the U.S. government has
not dredged Indiana Harbor for over 20 years (since 1972). Although dredging is supposed to occui
every five years, the U.S. Army Corps fears dredging up toxic substances that can only be disposec
of via expensive treatment in accordance with Land Ban standards under the Resource Conservator
and Recovery Act. The resultant  sediment accumulation is causing economic impacts  as stee
companies are forced to light-load barges. Sediment contamination does not only pose economic
concerns  but environmental problems as well. Because of "sediment loading"  (sediments are sc
saturated that additional pollutants can  no JohgeF'Be absorbed  by the sediments), more pollutants
flow directly into Lake Michigan.
       A final factor  in selecting areas  for enforcement concentration is a  history of high
noncompliance by industry and local governments, such as characterized Southeast Chicago anc
Northwest Indiana ever since the enactment of broad federal environmental laws in the early I970's
       As Northwest Indiana/Southeast Chicago was the earliest area selected, the remainder of th«
paper will focus on progress in  implementing the four innovative enforcement strategies withir
Northwest Indiana and Southeast Chicago.  Other  areas to  be selected  for  future geographic
enforcement initiatives are likely to be AOC's designated pursuant to the GLWQA and/or rivers anc
harbors with serious sediment contamination. Saginaw  Bay and Manistique,  Michigan, are unde
consideration for targeting. Another area containing no fewer than four AOC's is called the "Southeas
Michigan  Management Initiative,"  This  initiative  is still in the planning  stages but will emphasize
education/outreach and pollution prevention in addition to targeted enforcement.

4.1.3   Facility targeting

        Another component of "targeted enforcement" is "risk-based" targeting of individual facilities
within a geographic  initiative such as Northwest Indiana/Southeast Chicago for inspection and/c
enforcement of all violations discovered. Such enforcement actions would then be resolved by fu
compliance and payment of a substantial penalty. Instead of inspection targets being  determined b
media-specific definitions of significant violations U.S. EPA Region V now uses a "cross-media" mean
of targeting those facilities that present the greatest overall risk to human health and the environmeni
        In I989, this type of inspection planning Was made possible by the establishment of a nation?
Toxics Release Inventory data base (TRI), which began accumulating data in  1987. Section 313 c
the Emergency Planning and Community Right to Know Act (EPCRA), sometimes referred to as Titt
III of the Superfund Amendments and Reauthorization Act, requires facilities to report annually o:
their releases  of 575 toxics chemicals to the environment. This information is  reported on a facilit
by facility basis. The releases are also reported in pounds per year  by seven different media: watei

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         185


land, underground injection, fugitive air, stack air emissions, off-site to municipal wastewater treatment
plants, and off-site to disposal facilities such as incinerators and landfills, (See Attachment 3 - Toxic
Release Inventory for NW Indiana/SE Chicago GEI.) TRI is the first data base which can provide U.S.
EPA with a consistent cross-media  measure by which to compare facilities and geographic areas
across the country based on overall risk presented.
       Though s. powerful tool in inspection targeting,  TRI is not a perfect measure of risk. First, the
chemicals reported  to TRI have different levels of toxicity. Second, facilities with fewer than ten
employees are not required to report in to TRI. While acknowledging these limitations, U.S. EPA Region
V is using TRI data (or a subset thereof) to measure its success in achieving toxic reduction in the
Great Lakes. As discussed  below  under "Environmental indicators," TRI  is an important tool for
targeting facilities for inspection, since it is also a key measure of whether  the goal of 50% toxic
reduction has been met by  1996 for Northwest Indiana and Southeast Chicago. This  has been a
critical lesson learned from the Northwest Indiana/Southeast Chicago initiative: to the extent possible,
the overall enforcement targeting strategy should be closely tied to the measures of success for the
enforcement initiative.

4.2    Multi-media inspections/enforcement  ,

       Since a high rate of compliance was another goal of the Great Lakes Enforcement Strategy,
we also targeted inspections  towards those  facilities with  a history of noncompliance  with
environmental laws. This information was made available through two powerful U.S. EPA data bases,
which are also critical to the second distinguishing feature of the Great Lakes Enforcement Strategy:
"multi-media"  inspection and enforcement. Beginning in I990 in Northwest Indiana and Southeast
Chicago, U.S. EPA, for the first time in its 20-year history, began to systematically identify and address
violations on a multi-media or multi-statute basis. Formerly, U.S. EPA would inspect and enforce under
one environmental statute or program at a time. For example, over a period of one to two years, the
same facility would be visited by a  U.S. EPA "air" inspector, then by a "water" inspector, and finally
by a "hazardous waste" inspector. These inspections would then be followed by separate enforcement
actions under each statute (the Clean Air Act, the Clean Water Act, and the Resource Conservation
and Recovery Act). This  clearly was not the most effective use of scarce  inspection and enforcement
resources.                                           ••        ...       ...
       Now,  as  soon as US. EPA discovers a single violation  at a facility, particularly at a facility
ranked high on the TRI rankings, we review the facility's compliance record  under all federal
environmental statutes. This  review is accomplished through three mechanisms:
       «  First,  U.S.  EPA can  obtain  a  facility's compliance record under  all federal
         environmental laws from  the  National Enforcement Investigation's Center (NEIC;
         located in  Denver, Colorado) national multi-media compliance data base. NEC's
         data base also contains a  variety of  financial data bases,  such as Dun and
         Bradstreet.
       • Second, we can now also tap a more recently developed information resource, the
          Integrated  Data for Enforcement Analysis  (IDEA) system, which  compiles  data
         bases from U.S. EPA and most state environmental agencies on a wide range of
         inspection and enforcement activities at regulated facilities throughout the  U.S.
         Both the NEIC and IDEA data bases contain  "enforcement sensitive" information
         exempt under the Freedom of Information Act.
       •  Finally, U.S. EPA may schedule the facility for a multi-media inspection under which
         a team of inspectors from all the major  environmental programs (air, water, waste)
         conducts a comprehensive inspection for violations under  all of those laws.
          Increasingly, even  facilities with no known violations but with high TRI rankings are
         scheduled for multi-media inspections. U.S. EPA then brings  a "consolidated

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186                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         complaint"  against the facility, citing all violations discovered under all federal
         environmental statutes.

       As shown by the examples below, the multi-media approach to enforcement appears to have
several advantages. First, it ensures that U.S. EPA does not miss violations at a facility. Second, it
avoids the problem of the U.S.  agreeing to compliance measures which transfer environmental
problems from one media to another (e.g., solid waste to air), it also provides greater leverage for
U.S. EPA to negotiate settlements that include privately funded environmental restoration projects.
Finally, by ensuring  that all environmental violations are corrected  in the context of a single
enforcement action rather than in piecemeal litigation, the multi-media approach appears to cost both
U.S. EPA and industry less, conserving our enforcement resources.
       Because of these clear advantages,  multi-media enforcement is being implemented
successfully by U.S.  EPA,  despite some institutional  barriers.  The major barrier is  U.  S. EPA's
well-established "media-specific" organizational structure. Partly as a result of enforcement staff within
the Regional office being  unfamiliar with working across these well-established organizational
boundaries, U.S. EPA Region V spent months longer than expected working to develop the first judicial
case filed by U.S. EPA to  cite violations  under four major statutes: Resource Conservation and
Recovery Act (RCRA), the Safe  Drinking Water Act (SDWA), the Clean Water Act (CWA), and the
Clean Air Act (CAA). Working through a coordinating committee composed of regional enforcement
representatives, headquarters enforcement staff, and representatives from the U.S. Department oi
Justice, the U.S. finally filed this  precedent-setting complaint against Inland  Steel in October 199C
(7). The Inland Steel complaint  also was  the  first-Jo seek a judicial order that Inland Steel musi
remediate contaminated sediments  at the bottom of Indiana Harbor.
       The Inland Steel case  differs in one important  respect from subsequent multi-media
enforcement cases in the GEI  insofar as  the Inland case was developed through  numerous
single-media inspections. Violations from each inspection were then consolidated  into a single
complaint. As the multi-media enforcement strategy continues, U.S. EPA is developing more cases
out  of multi-media inspections. Just recently U.S. EPA filed  its first case developed through
multi-media inspections in Southeast Chicago. In July 1993, a multi-media complaint was filed against
Sherwin Williams  Company, which  had been the subject of one of U.S. EPA's first multi-medie
inspections in September 1990 (8).
       The development of this case exemplifies the learning experience which Region V encounterec
with its new, multi-media inspection process. The first inspection at Sherwin  Williams brought fortl*
few violations  which could be remedied through enforcement action;  therefore, the process was
refined, and a second inspection was conducted at thejaciljty in January 1992. This inspection lee
directly to the filing of the recent lawsuit, which alleges numerous violations of the CAA, CWA, RCRA
and EPCRA, and seeks the largest penalty under the statutory maximum sought to date by U.S. EPA
As U.S.  EPA trains more multi-media inspectors  and gains more experience doing multi-medis
inspections, it is expected  that  the time required to initiate an enforcement action after an initia
inspection will decrease considerably from our experience in the Sherwin Williams case.

4,3    Supplemental environmental projects in enforcement actions

       A review of the settlements obtained  for enforcement actions in Southeast Chicago anc
Northwest Indiana demonstrates  another advantage that arises out of both geographic targeting o
enforcement and "multi-media" enforcement; the enhanced ability of the U.S. government to obtair
highly favorable settlements of such enforcement actions.  In addition to substantial penalties, U.S
EPA has also been able to obtain environmentally beneficial projects (or "supplemental environments
projects"),  often of a scale well beyond  that which could be required unilaterally under existing
environmental laws. Negotiating settlements of our enforcement actions that include supplements
environmental projects is the third  innovative feature of our Great Lakes Enforcement Strategy. It
Northwest Indiana, with  its highly contaminated harbor sediments, U.S. EPA has agreed to accep

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         187


"sediment  remediation" projects in exchange for limited penalty compromise in settlement of
enforcement actions. (See Attachment 4, which depicts canal clean-up projects.) Such settlements,
several of which are discussed below, are most common with facilities that may have long histories
of contributing to the sediment contamination problem.
       The Northwest Indiana settlements discussed below were also facilitated by the development
of a U.S. EPA policy to encourage "Environmentally Beneficial Projects" in exchange for limited
compromise of an assessed civil penalty (9). Such settlements depart from US. EPA's traditional
mode of resolving an enforcement action. Prior to I990, U.S. EPA generally would not consider any
compromise of an assessed civil penalty, unless the alleged violator demonstrated an inability to pay
the full  penalty  or the litigation risks of pursuing an enforcement case to trial warranted some
compromise. As a general policy, U.S. EPA calculates penalties based on two components: economic
benefit and the  dollar amount reflecting gravity of potential or actual harm to  the environment or
integrity of the regulatory system. The Supplemental Policy does not  allow any compromise of the
"economic benefit" component of an assessed penalty, but it does contemplate limited  compromise
of the "gravity" component  of an assessed penalty in exchange for five types of projects: Pollution
Reduction, Pollution  Prevention, Environmental Auditing, Public Awareness,  and Environmental
Restoration.
       An  early example of this type of settlement in the  Northwest  Indiana Enforcement  Initiative
was a settlement agreement between U.S. EPA and USX Corporation,  resolving violations under the
Clean Water Act at the USX Gary Steel Works facility (10). Under that settlement, USX paid a $1.6
million civil penalty and was also required to upgrade its wastewater treatment plant at a cost of $25
million,  and to study the nature and extent of sediment contamination in a 12-mile stretch of the
Grand Calumet  River, at a cost of approximately $2.5 million. USX will also spend an additional $5
million on remediation of a five-mile stretch of contaminated sediments in the Grand Calumet River.
This settlement marked a significant departure from the traditional settlement requiring  only a return
to compliance with the law violated and payment of a civil  penalty.
       Another  settlement  which has  assisted  U.S. EPA in its effort to achieve remediation of
contaminated  sediments in the Great Lakes was embodied in  the October 1992 consent decree
between U.S.  EPA and LTV Steel, another major steel company in Northwest Indiana (11).  The LTV
settlement  resolved claims under the Clean Water Act relating to oil spills and unpermitted discharges
into an intake  channel which flowed directly into Lake Michigan.  In compliance with the timetable of
the  decree, LTV has already  installed barriers to  prevent contaminants from migrating into Lake
Michigan, and has completed soil sampling of the area. Planning is also underway for a Sediment
Removal and Disposal Project.              '
       A more recent example is the consent decree which the U.S.  EPA entered with Inland Steel
Corporation, resolving claims under the  CWA, CAA, RCRA, and SDWA in the I990 lawsuit discussed
above (12). Under the final settlement of that  case, Inland Steel is required to attain compliance with
all statutes (at an estimated cost of $25 million) and pay  a $29.5 million civil penalty. The penalty
includes supplemental environmental projects valued at $26 million, with $19 million being spent on
sediment remediation in the Grand Calumet River. This settlement is unprecedented in  the scope of
the  environmental restoration project being undertaken  in response to claims of environmental
regulatory violations.                                                    .
        It is doubtful that the U.S. EPA could have achieved equivalent environmental benefits from
the Inland facility had it taken  its traditional route of prosecuting violations under each environmental
law separately and in a piecemeal manner. The fact that Inland Steel executives also knew they were
in the heart of an ongoing geographic enforcement initiative and were  the highest TRl releaser in the
Great Lakes Basin provided further leverage for obtaining private monies for this large-scale sediment
remediation project.  (See Attachment 5 - Top 15 Priority Pollutant Releasers -1990.)
        U.S. EPA's ability to use its settlement authority in enforcement actions as a means of obtaining
private monies towards the environmental restoration of 'Areas of Concern" such as Northwest Indiana
will enable the U.S. to implement more quickly and efficiently the Remedial Action Plans required for
AOC's under the GLWQA, The environmental restoration and remediation projects described above

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 188                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 should also help U.S. EPA show progress on the "environmental indicators" selected for the Great
 Lakes.

 4.4    Environmental indicators and other measures of "success"

 4.4.1   Activity indicators

        To bring U.S. EPA's new enforcement strategy full circle, Region V has made an effort to
 evaluate the progress achieved in the Great Lakes, specifically in the Northwest Indiana/Southeast
 Chicago area (13). Historically,  U.S. EPA  has had great difficulty measuring "environmental
 improvement" resulting from its enforcement actions; instead,  it has relied  heavily on "activity
 indicators" as the primary measures of the success of its environmental enforcement programs. These
 activity indicators typically include the numbers of civil judicial and administrative enforcement cases
 filed and concluded each year, the number of criminal indictments and convictions obtained each
 year, and the dollar amount of penalties and fines. Other activity measures ranged from numbers of
 inspections per year to numbers of spill responses per year. Although activity measures do not directly
 reflect biological or ecological well being, they are nevertheless considered to be important elements
 for measuring the success of effective environmental enforcement programs. Not surprisingly, these
 activity  indicators  show steady increases in al! categories of enforcement activity  (inspections,
 warnings, formal commencement and conclusion of administrative and enforcement actions) in each
 year since that the enforcement initiative Northwest Indiana and Southeast Chicago commenced in
 I989.

-4.4.2   Environmental .Indicators

         Though activity  indicators remain as an important measure of success in the Northwes!
 Indiana/Southeast Chicago Initiative, U.S. EPA has for the first time evaluated its progress in restoring
 the environment in this area by monitoring selected "environmental indicators" for the five-year perioc
 from I988 to 1992. U.S. EiPA chose  I988 as the baseline year, since this was the first year in which TRI
 data, perhaps the most powerful environmental  indicator, became available. The environmenta
 indicators for this area can be divided into two categories;  indirect and direct.  (See Attachment 6  -
 Environmental Indicators—NW Indiana/SE Chicago GEI Area.) Indirect measures of environmenta
 quality are generally "pollutant-load" related, i.e., they measure the quantity of pollutants entering the
 environment. Direct indicators  used in the GEI are  actual or  estimated  measures of human oi
 ecological health. As one might expect, improvements in the direct environmental indicators frequently
 lag somewhat behind those shown in the indirect indicators.

 4,4.2.1       Indirect environmental indicators
         The primary indirect  environmental indicator being used  by U.S. EPA to measure toxk
 reductions is the TRI data, which is a clear quantitative indicator of reductions in  loadings of selectee
 toxic substances to the environment. For example, several "pollutants of concern" (PC's) have beer
 identified by U.S. EPA as persistent problems for the Great Lakes and, in particular, for Northwes
 Indiana and Southeast Chicago. The TRI shows a 26% reduction in these PC's since the 1988 base
 year. This decline may be in part attributed to the increase in enforcement activities in the area. The
 focused enforcement activity in the GEI has  in turn fostered greater public  awareness and has lee
 to increased efforts by industry to reduce pollution. (See Attachment 7 - Decrease in Priority Pollutan
 Releases 1988-1990.)

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         189
4.4.2.2      Direct environmental indicators
       Direct environmental improvement or degradation in the Grand Calumet River in Northwest
Indiana is currently measured by the Index of Biotic Integrity (IBI). This "direct environmental indicator"
is based on numbers and diversity of the fish community. It was developed several years ago by Dr.
J.R, Karr. State environmental agencies, universities, and U.S. EPA have begun to use it as a means
of evaluating the environmental health of bodies of water, Over the initial five-year period of study,
U.S. EPA has not been able to detect significant improvement in the water quality of the Calumet
River and the Indiana Harbor.  (See Attachment 8 -  Index of Biotic Integrity - 1985 through  1990.)
These results are consistent with a number of historical observations and reflect the very stressed
conditions in this section of the Great Lakes. These findings suggest tiiat enforcement initiatives such
as the GEI must be pursued long-term in order to make a measurable improvement in the water
quality of heavily contaminated areas such as the Indiana Harbor. With the  eventual  completion of
the major environmental restoration projects described in the Inland Steel, USX, and LTV settlements
referred to earlier, U.S.  EPA would expect some improvement in the direct environmental indicators
over the next five-year period.
5     CONCLUSION: LESSONS LEARNED

       Based on the preliminary success of the GEI, U.S. EPA plans to continue this enforcement
strategy and expand it to other areas within the Great Lakes Basin, Although much more is yet to be
learned from initiatives such as the GEI, several conclusions can be drawn from U.S. EPA's experience
to date. First, with limited enforcement resources, integrated environmental data bases such as the
TRI and  IDEA are essential for risk-based targeting. These tools are also important for facilitating
multi-media enforcement and for targeting facilities based on their history of compliance. Additionally,
these data bases can help measure the success of enforcement programs by providing both activity
indicators and environmental indicators that reflect changes in rates of compliance and in the overall
risk to health and the environment. At the same time, to better evaluate U.S. EPA's progress towards
achieving our goal of significant toxics reduction and environmental restoration in the GEI and in the
Great Lakes Basin overall, we must continue to refine the measures of our enforcement success. In
particular, U.S. EPA  must work to develop direct environmental indicators in addition to the Index of
Biotic Integrity.
       Based  on  the  indicators developed thus  far,  U.S. EPA has learned that our new
"result-oriented" enforcement strategy has initially shown immediate gains in the activity indicators
and in the indirect environmental  indicators such as TRI. However,  it has become clear that in areas
such as the Great Lakes, which have suffered historically from decades of environmental degradation,
short-term improvements in direct environmental indicators cannot be  expected. U.S.  EPA's
experience has proven that to achieve significant improvements in the direct environmental indicators,
a commitment longer  than our  three-year  effort in Northwest Indiana/Southeast Chicago will  be
necessary.
       Finally,  U.S.  EPA's experience has shown that measurable environmental gains may often
indirectly result from an intensified enforcement effort, insofar as industry's and the public's awareness
of this effort  leads to a greater commitment to pursue pollution prevention and waste minimization
projects, in order to take advantage of this dynamic, U.S. EPA has begun to supplement its actions
within the Geographic Enforcement Initiative with intensified efforts to educate industry and the public
about options for waste  minimization  and pollution prevention.  In sum, the results of  our new
enforcement strategy to date  suggest that both directly and indirectly,  the enforcement of
environmental laws  can indeed be an engine of progress in the improvement of our environment.

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190                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       REFERENCES

 1.  Peterson, Lynn. "Environmental Control Law,"  September  1992,  p. 1, Note:  The remaining
    statistics cited in section 2 are all referenced to this source and will therefore not be referenced
    individually for the sake of simplicity.

 2.  St. John, Paige. "Mr Pollution Blamed for Tainting Great Lake," Gannett News Service, 5/18/92.

 3.  Peterson, Lynn, pp,  1-2. Note: The entire discussion of the GLWQA in section 3 is referenced to
    this work.

 4.  Ibid. pp. 1-2.

 5.  Emergency Planning and Community Right to Know Act  (EPCRA), 42  U.S.C. §§ 11001-11050
    (1986).

 6.  U.S. EPA Region V "Estimation and Evaluation of Cancer Risks Attributable to Air Pollution in
    Southeast Chicago," January 1989, pp. vii-x.

 7.  U.S. EPA Press Release, Inland Steel, October 10, 1990.

 8. U.S. EPA  Fiscal Year 1993 Case Summary Report.  "U.S.  EPA Files Largest  Multi-Media
    Environmental Enforcement Lawsuit to Date Against the Sherwin Williams Company," October
    1993,  p. 9,
 9.  U.S. ERA Office  of Enforcement.  Policy titled,  "Supplemental Environmental Projects in EPA
    Settlements." This policy was finalized on February 12,1991.
10. U.S. EPA Press Release. USX Corporation,  October 10,  1990.

11. Peterson, Lynn. p. 4.
12, U.S. EPA.  "Fiscal Year 1993 Supplemental Environmental Project/lnjunetive Relief Report,"
    November 23, 1993, pp. 16, 24.
13. U.S.  EPA  Region  V  GEI Task Force.   "Northwest  Indiana-Southeast  Cook  County GEl
    Environmental Progress 1988-92: A Report of Selected Environmental Indicators," July 15,1993,
    pp. 1-36. Note: Section 4 is referenced entirely to this report, and therefore individual references
    will not be provided.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
191
 Attachment 1.  "Hie Great Lakes states and surrounding area.
 Attachment 2,  SE Chicago - NW Indiana GEf ZIP areas.

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192
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
     Off Site Releases

   Fugitive Air Release

     Releases to Land

     Point Air Releases

     Releases to POTW

     Releases to Water

   Underground Inject
                             Pollutant Releases In Million Lbs/Yr
Attachment 3.  Toxic release inventory for NW Indiana/SE Chicago GEI,
                reported priority pollutant releases 1990.
                         Wast Branch  East Branch
             I    r

 Attachment 4.  Grand Calumet River/Indiana Harbor Canal area.
                         |   | inland sadhmfltdwracJartzaBon
                         |PB Inland setliinert remetfialtof)
                         [   | U7V sadlmant ramedalton
                              Gary sadm«nl raimdiaUon
                              USX sodimenl rematfiatlon ana
                         r~~l USX sediment diaractetbatkin study

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
193
      Inland Steel C
    US Steel S. Wo
       Amoco Oi!
  US Steel Gary Wor
      Ford Motor
   Reynolds Metal
  Bethlehem Steel
   N Amer Refactori
      Avery Dennls
  Allied Tube & Co
    American Nat C
        LTV Stool C
  Marport Smelting
  General Foam Co
      PMC Speclalt
                       0        2        4        6        a       10
                         Reported Releases in Million Lbs/Yr
Attachment 5.  Toxic release inventory for NW Indiana/SE Cook Co. GE1,
              top 15 priority pollutant releasers—1990.

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194
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Program
All
All
All
All
AM
All
All
Air
Water
Water
Waste
RCRA
Waste
SF
Waste
SF
Waste
SF
Water
TSCA
Indicator
Category
Indirect
(Load)
Indirect
(Load)
Activity
Indicator
Activity
Indicator
Activity
Indicator
Indirect
(Load)
Activity
Indicator
Indirect
(Load)
Indirect
(Load)
Direct
(Eco)
Indirect
(Load)
Activity
Indicator
Activity
Indicator
Indirect
(Load)
Indirect
(Load)
Description of Indicator
Number of Facilities Reporting
POC Releases/yr
Total POC Releases All Media
in pounds/yr all sources
Numbers of Inspections
total/yr multi & single media
Numbers of Referrals
total/yr multi & single media
Numbers of Settlements
total/yr multi & single media
Pollutant Reductions which result from
Enforcement Settlements in pounds/yr
Cost (in dollars) of injunctive relief
and SEP s from Enforcement Agreements
or conclusions
POC Releases to Air Media
in pounds/yr all sources
POC Releases to Water Media
in pounds/yr all sources
Index of Biotic Integrity
as IBI score by sampling loc.
POC Releases to Land Media
in pounds/yr all sources
Reduction in Immediate Threats
in # spill responses/yr
Removal & Remedial Actions
in # sites progressing/yr
Materials Addressed by Tech
Based Controls in cu yds/yr
Volume of Contaminated Sediment
Removed in cu yds/yr
Data
Source
TRI
TRI
GEITF
Programs
GEITF
Programs
GEITF
ORC
GEITF
ORC
GEITF
ORC
Programs
TRI
TRI
R5
Reports
TRI
WASTLN
WASTLN
WASTLN
IPPTF
PTSB
 Attachment 6.  Environmental indicators NW Indiana/SE Chicago GEl area.

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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
195
    •v, .:;'>• V-,'><  .-I'' ,^^^^^^Hr ' < fT^hkL*' •   •.. M?fck*V  > "' \C-''•"*..."  ,'#»
               Total Releases in Million Lbs/Yr
Attachment 7, Toxic release inventory for NW Indiana/SE Chicago GEI,
              decrease in priority pollutant releases 1988-1990.
                                                                                 Year

                                                                                11988

                                                                                Il989

                                                                                11990
                 I        §        I         I        §
                 «•        w*        w»         t»        
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196                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      MAP AND GRAPH REFERENCES

Attachments 1-3 and 5-8 were originally published in the following source:  U.S. EPA Region V GEI
Task Force. "Northwest Indiana-Southeast Cook County GEI Environmental Progress 1988-92; A
Report of Selected Environmental Indicators," July 15,1993.
Attachment 4 was provided by Robert D. Tblpa, Acting Chief, Compliance and Special Activities Unit,
U.S. EPA Region V,
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        197


ENFORCEMENT OF COMPLIANCE REQUIREMENTS AT OMAI
GOLD MINES LIMITED - GUYANA

IMKOFI,

Special Projects Officer, Environmental Protection Agency Guyana


       SUMMARY

       The gold extraction operations of OMAI GOLD MINES LIMITED (OGML) are muiti-million dollar
open cast operations in the forested interior of tropical Guyana. The mining area is bounded on two
sides by the OMAI RIVER and the ESSEQUIBO RIVER, Other mines carry  out dredging operations
for the same purpose on the ESSEQUIBO RIVER in the vicinity of the OGML concession and loggers
fell and crude-dress timber at isolated small concessions in the neighbourhood.
       The operations at OGML engage hundreds of  live-In staff and utilize sodium cyanide to
separate  gold from ore impurities such as iron, copper, nickel, lead and  zinc. These facts  create
environmental concerns which had  to be addressed and which attracted the ire of neighbouring
miners as well as the intervention of the Environment and Health Sections of the Guyana Government.
At least one non-government organization (NGO) and two groups concerned with indigenous peoples'
rights have expressed keen interest in the activities of OGML.
       This  paper seeks to examine  the  introduction of voluntary compliance and enforcement
requirements into the extractive industrial realm of the Guyana environmental scenario, and to assess
the success or failure of this introduction.


1      INTRODUCTION

       Omai Gold Mines Limited  (OGML)  is a subsidiary of the  Canadian  mining company,
CAMBIOR, which holds 60% of the common shares, along with another Canadian company Golden
Star Resources Limited (35%) and the State of Guyana  (5%). Construction  and development
operations at the mine site about 100 miles south of Georgetown started in September 1991 with a
projected budget of US$152 million. Mining activities commenced in February 1992 and by December
I992 probable mineable gold reserve ware estimated at 2,268,000 ounces. The first gold bar was
poured 1st February 1993 and is estimated that ore reserves are about 40.6  million tonnes (metric) at
1.63 g/t Au. Gold recovery is thus about 93.5%.
       The extraction is expected to  last  10-15 years  and nearly one thousand  persons will be
employed.
       The annual rainfall at the mining site Is 2.6 m. and the natural vegetation is a typical humid
tropical rain forest.


2      THE ENVIRONMENTAL PROBLEMS

2.1    Toxic chemicals

       The use of sodium cyanide (NaCN) in the amalgamation process probably poses the greatest
environmental threat. Cyanide is a very poisonous substance which may infiltrate water sources or
escape into the air. Thus it may be inhaled by human beings, drunk If it gets into the potable water
system, or may enter the food chain unobtrusively.
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198                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       It is imported into the country in the form of pellets via a port about 65 miles up the Demerara
River, then transported overland along the Mabura Hill Road (See Fig. 1) to the mining site. There ft
is stored and used as needed.
       Use of cyanide at the mining site entails emptying the sealed plastic container into a huge
hopper where it is mixed with water and the solution is then pumped to the thickener tank. There it
moces with the ore crushed to a pulp. The cyanide concentration of this slurry is about 0,4 g/L
       The cyanide is eventually freed of the particles of gold and removed from the reclaim water
and neutralized at the tailings pond (Fig 2) at the end of the process.

2.2    Solid waste

       The next most important environmental problem is the discharge of solid waste at the mine
site. This waste is of two types: sewage and kitchen/office waste. The latter is incinerated on a regular
basis while the former has been the subject of continuing debate and modifying sfrategies.
       The present use of a Rotating Biological Contactor (RBC) System has proven inadequate and
has resulted in complaints from neighbouring miners  of contamination of the  river water and  the
emanation of disturbing odours from the facility, A new system of anaerobic/aerobic lagoon treatment
is being installed which  should remove both threats.
3      COMPLIANCE AND ENFORCEMENT APPROACH

3.1    Absence of environmental legislation

       There has been no legislation in Guyana for environmental control of mining operations, The
Guyana Geology and Mines Commission (GGMC) under the  MINES ACT of 1989, exercise closf
inspection of the operations at OMAI in so far as gold production and the integrity of the claim are
concerned. The environmental standards observed by OGML are those set by the Quebec Province
of Canada.

3.2    Environmental impact study

       In 1988 OGML retained RESCAN ENVIRONMENT SERVICE INCORPORATED, of Vancouver
Canada, to conduct, an Environmental Impact and Socio Economic Study of the proposed operations
at the OMAI site. The Environmental Impact Statement (EIS) was filed with the GGMC, January 1991
with an addendum to the statement filed in January 1992. The EIS provided an extensive survey o
the mine site and recovery process for conditions of climate, vegetation, terrestrial wild life,  riverair
aquatic life, quality of surface water and hydrology, ground water hydrology, local archaeology, waste
disposal and socio economic considerations,

3,3    Development of inspection and monitoring capacity

       The  GGMC is  progressively improving its capabilities  to monitor environmental aspects o
mining in Guyana. However, since its establishment in 1988, the Guyana Agency for Health Sciences
Education,  Environment  and Food  Policy (GAHEF), has been tasked  by  law with monitoring al
environmental impacts nation-wide,  including those of the mining industry. Consequently ft  ha;
established  a sound working relationship with the GGMC in which the latter consults with  GAHEF
before granting licence to any large  mining concession.
       OGML has been complying with the requirements of this relationship. In fact, both the GGMC
and GAHEF have peculiar requirements that the company (OGML) is expected to comply with. Th<
Environmental Management Agreement for small and medium scale mining operations has in  par
requested  that post-operation rehabilitation  procedures be assured before a  mining licence bf
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
      199
                                                 ATLANTIC
                                                          OCEAN
                                                         GEORGETOWN
                                                       GUYANA
                                                               z.o
 40
=9 ki(om«1
 Figure 1.
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200
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Rgure 2.  Omai effluent treatment conceptual flowsheet.

granted. This assurance is given by OGML in their EIS as they propose a comprehensive plan o
rehabilitation of the entire site upon abandonment of the area at the end of the project.
       Monitoring by GAHEF is centered mainly around the tailings impoundment, but all othe
aspects of the operations are considered, especially the health of the workers at the mine site. Wate
quality sampling, testing and analyzing are conducted on a regular basis (Table 1) and the result?
are forwarded to GAHEF as soon as they are available (Table 2). OGML has also agreed that GAHEF
may run totally independent tests at any time.
       All accidents or malfunctioning of equipment which could pose the slightest environmenta
threat are reported immediately to GAHEF and  the  GGMC so that immediate independen
investigations could be mounted either jointly  or separately by these bodies.
       Periodic observations of wildlife behaviour in the area are made as well as bioassays of th<
various water courses or water bodies within and connected to the mine site area. These are expectec
to inform the sum total of the surface water quality impacts of the OMAI  project.

3.4    Water quality monitoring results of Guyana's approach

       Table 1 indicates the frequency with which water quality is monitored, the locations of samplin<
stations and the chemical parameters monitored, at each station. Table 2 is a sample of the recorde<
results. Every month these results are submitted to GAHEF. Impromptu inspections  of samplini
operations are conducted by senior officials  of the Environment Division of GAHEF and the ne\
Environment Protection Agency is expected to intensify this activity and  institute independent spc
sampling at the location/mine site.
       During 1993 the higher level of cyanide was detected in the Reclaim Pond.  Values  rangei
from 102 mg/L in March to 19.30 mg/L in June (Fig. 3). The values  recorded for CNWAD showed .
gradual decrease ranging from 78.52 mg/L to 32.0 mg/L, and values for CMS were comparativel
low ranging from 30.4 mg/L to 21.00 mg/L. These values will be greatly reduced before any  releas
is made from this Reclaim Pond into the environment. It is envisaged that a two-year standing perioi
will  be adequate  to  neutralise the  cyanide in this pond before the water is released into anothe
holding pond and then, after testing, into the  environment.
       In the Aeration Pond the range of free cyanide is from 0.156 mg/L to mg/L, where the highes
level is just beyond the Canadian (Quebec) limit observed by the OGML. The highest level of tofe
cyanide in this Aeration  Pond, 0.448 mg/L,  is below the 1.50 mg/L accepted  by the  Quebeca
standards. The trend during the year is a gradual reduction in cyanide concentration except in th
Reclaim Pond in the later half of the year.
       This may  possibly be explained by the increased level of processing in that period. In th
OMAI river upstream and downstream the total cyanide level remained below 0.002 mg/L throughoi
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                  201
Table 1. OMA! GOLD MINES LIMITED, Environmental H2O Monitoring Program
Weekly Monthly
Station/Sample Location (Every Sunday) (15th Day of Each Month)
1
2
3
4
5
6
7
8
9
Reclaim H2O - Mill X
Aeration Pond X
Omal River - Clear H2O Pond
Omal River - Upstream
Omai River - Downstream : X
Captain Mann - Creek
Essequibo River
Anaconda Well Water X
Gilt Creek Drainage
X
X
X
X
X
X
X

X
WATER SAMPLING PARAMETERS
Weekly
1     Reclaim H2O - Mill:

2     Aeration Pond:
5     Omai River Downstream:
8     Anaconda Well Water:

WATER SAMPLING PARAMETERS
Monthly
1     Reclaim H2Q - Mill;

2     Aeration Pond:

3     Omai River - Clear H2O Pond:

4     Omai River - Upstream:
5     Omai River - Downstream:

6     Captain Mann - Creek:
7     Essequibo River:
9     Gilt Creek Drainage:
pH, TDS, TSS. Total CN", Free CN",
Cu, Pb, Zn, Ni. Fe, Au, pond level,
pH, TDS, TSS. Total CN", Free CN".
pH, TDS, TSS. Total CN".
pH, TDS, TSS, Cu Ph, Zn, Ni, Fe.
Temp, pH, TDS, TSS, Hardness. Total CN", Free CN-, CNWAD,
CNS-, NHjN, SOj, NO5, Cu, Pb, Zn, Ni, Fe, Au, oil and grease.
Temp, pH, TDS, TSS, Hardness, Total CN-, Free CN", CNWAD,
CNS", NHsN, SQJ, NOj, Cu, Pb, Zn, Ni, Fe, oil and grease.
Temp, pH, TDS, TSS. Total CNr, Cu, Pb, Zn, Ni, Fe, oil and
grease,
Temp, pH, TDS, TSS. Total CN-, Cu, Pb, Zn, Ni, Fe.
Temp, pH, TDS, TSS. Total CrT, NH^N, NOI-, Cu, Pb, Zn, Ni, Fe,
oil and grease.
pH, TDS, TSS. Total CN~, Cu, Pb, Zn, Ni, Fe, oil and grease.
pH,.TDS, TSS. Total CN", Cu, Pb, Zn, Ni, Fe, oil and grease.
Temp, pH, TDS, TSS, Hardness, Total CN~, Free CN", CNWAD,
CNS", NH^N, SOj, NO5, Cu, Pb, Zn, Ni, Fe, oil and grease.
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202
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
TableZ. OMAI GOLD MINES






Water Sampling
Station Parameters
pH
Temperature °C
Total suspended
solids (mg/L)
Total dissolved
solids (mg/L)
Conductivity
(microS/Cm)
Hardness mg/L as
CaCO3
Oil and grease
(mg/L)
Disanions:
Sulfate SO42 (mg/L)
Nutrients: (mg/L)
Ammonia as
nitrogen NH3-N
Nitrate NO3
Cyanides: (mg/L)
Total Cn
FreeCN
CNWAD
CNS
CNO


1
Reclaim
Water


Mill
9.80
20.8
16.4

597



25.43




3)38.0

9.66

3.19

24.3
10.92
22.00
28.0

LIMITED, Environmental Water Monitoring (Sample Date: January 15, 1994)


2
Aeration
Pond
Aera-
tion
Pond
7.38
20.8
34.0

96.4



58.19




51.03

0.77

6.29

0.007
<0.02
<0.02
2.0



3 4
Omai Omai
River River
Clear
H2O Up-
Pond stream
5.14 5.03
24.6 26.0
2.0 2.0

12.1 12.2














<0.002 <.002




8
7 Ana-
5 4 Essequi conda
Omai Captain bo Well
River Mann River Water
Comp Comp
Down- intake Intake
stream Creek H2O H2O
5.80 N/A 6.65
24.0 N/A 27.7
1.2 N/A 5.2

11.4 N/A 8.6




	 	 -





0.34

2.17

<.002 N/A <.002






9
Gilt
Creek

Drain-
age
6.88
20.2
0.8

214



45.74




90.72

N/A

46.96

<.002
<0.02
<0.02
1.6

Dissolved Metals: (mg/L)
Cu
Pb
Zn
Ni
Fe
Au
6.142
<0.01
0.990
0.195
0.526
0.049
<0.01
<0.01
0.011
0.015
0.101

<0.01 <0.01
O.01 <0.01
0.015 0.012
0.008 0.005
0.442 0.383

<0.01 <0.01
<0.01 <0.01
0.013 0.100
0.011 0.005
0.524 0.163

<0.01
<0.01
0.024
0.019
0.057

 Note:
 Reclaim water pond level: 511.698 m above sea level.
 N/A - indicates not available (dry creek).
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                             203
             ss

             SM

                          \

                                y  =  X  |. £ a   MI.  g
                                j  Jr  2"  I    Sample Dates
Figure 3.  Reclaim water (free cyanide).
Table 3.  OMAI GOLD MINES LIMITED. Final Effluent Quality Objectives
                 Free cyanide
                 Total cyanide
                 Copper
                 Lead
                 Zinc
                 Nickel
                 Iron
                 pH range
0.10 mg/L
1.5mg/L
0.30 mg/L
0.20 mg/L
0.50 mg/L
0.50 mg/L
3.0 mg/L
6.5 to 9.5
the year except in October in the downstream where mg/L was recorded. The was still below the
standard of 1.5 mg/L.
3,5    Resource costs of compliance monitoring
       The cost of instituting such compliance measures as outlined above as well as those attendant
on waste disposal at OGML is met by the company. The Environmental Protection Agency of the
Government is slowly building the capacity .to independently enforce compliance but as far  as
monitoring OGML is concerned the cost of surveillance has been minimal: confined to pay the salary
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204                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
of the officers who visit the site, not on a regular basis. OGML spends over US$150,000 annually to
ensure that adverse environmental impacts of its operation are transparently mitigated.
       It is anticipated that the cost of enforcement when the Agency is fully operational will be in
the vicinity of US$4,000 annually.
4      FACTORS CONTRIBUTING TO THE SUCCESS OF THE PROGRAM

       The environmental protection programme of the OGML may be considered successful given
the stage of development of the industry. The major factors which seem to have contributed to this
success are:
       • The existences of standards, in this case those set by the home country of the
         foreign conrpany involved in the development.
       • International pressure  which is  exerted by the various  environmental lobbies
         worldwide.
       * National public awareness, mainly championed by NGO's.
       • National official policy portrayed  by a government concerned with environmental
         protection.
       • The existence of a compliance and enforcement body with the     authority and
         adequate facility to set regulations and enforce compliance. The body in this case
         is fairly fledgling in that its capacity is not fully developed and the legal authority is
         more or less inadequate.
       • Willingness on the part of the developer to observe standards set both nationally
         and internationally and cooperate with local enforcement agencies. The attitude of
         OGML is impeccable in this regard.
 5     CONCLUSION

       The progressive successful implementation of compliance strategies based on cooperattor
 between the developer and  the enforcement agency should be adopted in other areas witt
 appropriate modifications where necessary. However, there must be a body of legislation agains
 which enforcement activities are grounded. The Environmental Protection Bill as well  as the
 Environmental Impact Assessment Bill which should be passed by the Guyana Parliament shortly wil
 provide adequate clout for environmental compliance and enforcement strategies in Guyana. Thf
 Environmental Management Agreement developed by the GGMC in collaboration with GAHEF anc
 the miners' Association,  as well as other NGO'S, is another environmental protection tool which k
 part of the national strategy.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        205


THE ENFORCEMENT EXPERIENCE IN GUYANA ON EXPLOITATION OF
NATURAL RESOURCES

SINGH, JOSEPH G,

BGEN, Chief of Staff, Guyana Defence Force Headquarters, Camp Ayanganna, Georgetown, Guyana


       SUMMARY

       This article provides an overview of the impact on the environment of the exploitation of natural
resources. Some data on the extent of resources, current exploitation techniques and their effects,
and the     and enforcement mechanisms which are evolving are also included,


1      ENVIRONMENTAL IMPACT IN GUYANA

1.1    Administrative framework

       Guyana, the most western of the three  Guyanas, is located on the northeastern tip of the
South American continent.  It lies between latitudes 1° N to 9° N and longitudes 57° W to 61° W.
       Diversification of the economy and creation of an  environment more conducive to private
investment has resulted in the rapid opening up of former pristine areas of the country to economic
exploitation of precious minerals, forests, wildlife resources, and hydropower potential.
       Concern about the impact of such activities on the environment has moved the Government
to draft environmental  laws which will  seek- to regulate these  activities and  ensure sustainable
development.
       The Ministry of Health and the Environment  has overall responsibility for the management of
the environment and it does this by networking with the Geology and Mines Commission, the Forestry
Commission, and the Hydropower Division in the Ministry of Public Works and Communication.
       The Guyana Defence Force and the Guyana Police Force support  the above mentioned
agencies through their patrolling, aerial reconnaissance, and other information-gathering resources.

1.2    The problem

       The size of the Guyanese population (800,000) relative to the size of the country (216,000
km2) and the fact that in the colonial and  immediate post-colonial period the population's distribution
has been biased towards the Coastal Plain and lower riverine areas may be considered a major
contributory factor to the sparsity of communities in the relatively untapped hinterland.
       With the decline in the economy in the  late 1970s and 1980s coupled with a rising cost of
living and the failure of a centralised bureaucratic and administrative management structure, there
came an urgent need to stimulate foreign investment in an environment of market-oriented reforms;
to diversify from traditional rice, sugar, and bauxite exports; and to exploit timber, mineral, and offshore
resources while also tapping into alternative energy sources based on hydropower.
       The opening up of the hinterland, with the immense land frontier of 2000 km bordering
Venezuela, Brazil, and  Suriname and the  relatively  unprotected Exclusive Economic Zone,  have
stimulated, in the short space of five years, the proliferation of economic activities, some unregulated.
Even if regulated, the lack of effective legislation, monitoring, and enforcement has resulted in several
problems being manifested.
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206                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
1.3    Manifestations of the problems

1.3.1   Forestry

       Replanting. Failure to replant immediately after clear-felling of trees has caused the topical
clay soils to dehydrate, sometimes irreversibly, and to become very hard and impermeable to water,
thereby lowering the soil potential to support growth of trees. On the other hand, high rainfall rapidly
erodes the topsoil and creates difficulties for tree 'establishment.
       Cattle ranges. Vast tracts of scrubland are burned for cattle ranges. Very soon the soils lose
their fertility and  new ranges are created by burning more land.
       Shifting agriculture.  While  such traditional  patterns of land use have been conducted  for
thousands of years, today the land area in which indigenous peoples can rotate their farm plots has
been  reduced. They are subsequently forced to return to their farm plots at a shorter rotation. This
ultimately destroys the recovery of the land.
       Empoldering. Because the majority of the Coastal Plain is below sea level (approximately one
metre), drainage and irrigation infrastructure  entails empoldering large  areas of woodland and
swampland.  These areas are flooded out, and  animals get displaced while all the trees under water
die.

1.3.2   Mining

       Stripping of soil. M examination of various mining activities in Guyana—manganese (no longer
exploited), bauxite, and gold—shows that invariably mining destroys valuable stands of forest and
wildlife habitat; the impression is that the activities are an end in themselves. Soils are stripped of
their  vegetation, which  scars the  landscape.  Large unsightly excavations  and stockpiles  of
overburden are  dumpeci on the topsoil.  The  loose soils  cause dust pollution  and affect all living
organisms in the area.  The heaps of overburden are prone to leaching and erosion, polluting the
waters.
       Itinerant miners. There  has been an influx of itinerant miners from areas across the western
borders of Guyana, over the past five years, who mine placer mines located on geological terraces
or alluvial  banks with  rudimentary  technology.  Some of these activities are now sponsored by
well-to-do gold-mining entrepreneurs who are exploiting opportunities offered by a long and
inadequately policed international border. The entrepreneurs often arrive by light aircraft at the dozens
of rough airstrips which litter the hinterland. They bring large hydraulic lavadoras, pumps, engines,
and generators for washing hugh volumes of ore-bearing soil.
       Environmental impact of gold mining. A report by  the independent monitoring agency,  the
Guyana Environment Monitoring and Conservation Limited (GEMCO), on the environmental evaluation
of mining operations in the Konawaruk  River has indicated  that  reduced light penetration as a result
of excessive sediment loading and mercury contamination of  soil and river sediment, suspendec
solids, and fish  tissue are issues which must be seriously addressed by the authorities,
       GEMCO has  reiterated a number of recommendations previously made  (16 Dec.  93) as
follows:
       •  Policies and procedures in the designation of areas and the award of concessions
          for mining.
       •  Realistic environmental regulations informed by regular and independent monitoring
          of impacts.
       •  Effective mechanisms for enforcement of regulations.
       •  Occupational safety and health  standards, especially for persons employed in
          high-risk areas of mercury contamination.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         207
       * Level of contamination of human tissues with mercury, particularly in the case of
         Amerindian  and other hinterland  communities continually exposed to  polluted
         water and food chains.
       • Protection of hinterland communities against incursions that are likely to endanger
         their health through pollution or destruction of their environment,

1.3.3  Wildlife trade

       In Guyana, wildlife management of endemic and migratory species is being currently executed
by the Ministry of Agriculture on a very ad hoc basis, largely because of major constraints  such as
gaps in information  and knowledge of the numerous species; an acute shortage of professional and
technical staff; and  tack of adequate communication facilities and equipment and the absence of
organised research.
       Current management of wildlife. Management to date includes an arbitrary open and closed
season as well as  some control of illegal hunting; record keeping on the legal export trade; the
classification of some of  the major species according to the Convention on International  Trade in
Endangered Species of Wild Fauna and Flora (CITES)—to which Guyana became a signatory on
August 25, 1977; and  the preparation of "A Conservation of Wildlife Bill."
       Proposals for improved management. In order to manage wildlife resources on a sustainable
basis, the following  steps need to be accomplished:
       •  Inventories and research to determine species abundance and scarcity.
       •  Critical habitats (a Rapid Assessment Project {RAP} had been accomplished In
          1993 by Conservation international on the proposed KANUKU National Park).
       •  Life cycles.
       •  Predator—prey relationships.
       »  Animal behaviours and territorial range (particularly of large species).
       •  Acceptable and objectionable methods of hunting.
       •  Demand and supply of animals for food.
       •  Pets and  export trade and wildlife farming.
       «  An extensive, ongoing  education programme aimed at school children, forests
          users, and the general public, including various professional groups.  .
       •  Cooperation In information sharing, legislation, and enforcement practices among
          Amazon Basin countries and subtropical regions.

 1.3.4'  Lines of communication

       With the opening up of lines of communication to hinterland  project sites (mining, forestry,
agriculture, ecotourism) and increasing cross-border trade, persons have greater access  to areas
which were hitherto inaccessible or logistically difficult to reach.
       This is now changing, and with the demographic changes have come several problems which
have consequences for the environment, including;
       • Opening  up of roads and trails in ecologically sensitive areas.
        • Stress on indigenous communities which have had a settled existence.
        • Transfer of diseases—for example, malaria,  cholera, foot and mouth—all of which
          have been recorded within the past decade with increasing frequency.
        • Easier access by poachers of wildlife.
        » Unauthorised removal of timber and mineral resources.
        » Expansion of the  cultivation of marijuana and an increase in the incidence of
          trafficking in narcotics and psychotropic substances.
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208                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      LEGISLATION

       There has been a paucity of legislation governing protection of the environment. Even what
exists is archaic and needs to be updated.

2.1    Bills

       There are several bills which are in draft as follows:
       • A  conservation of Wildlife  Bill now being completed with the assistance of the
         CITES Secretariat.
       • The Guyana environmental management agreement which seeks to ensure sound
         environmental practice in mining operations.

2.1.1   The Green Charter

       The Guyana Government has made it mandatory for foreign and local large-scale investors
in extractive  industries to complement their operations with environmentally acceptable management
plans monitored by creditable international agencies.
       Thus, Demerara Timbers Limited has retained the services of the  University of Utrecht to
monitor its forest products extraction plan. Similarly, the Barama Company has retained the services
of the Edinburgh Institute for Studies in the Tropics to monitor its forestry plan.

2.1.2  Scientific authority

       There was a scientific authority in existence but  it became defunct with the death of its
Chairman, Steps are now in train to  have this authority re-constituted.  The scientific authority is a
requirement of CITES.
 3     ENFORCEMENT AGENCIES AND MODUS OPERAND!

 3.1    Agencies

       The following agencies are directly involved in monitoring and enforcement activities:
       «  The Edinburgh Institute for Studies in the Tropics
       *  The University of Utrecht
       •  The Guyana Agency for Health, the Environment and Food Policy (GAHEF)
       •  The Guyana E-nvironment Monitoring and Conservation Limited (GEMCO)
       »  The Guyana Police Force
       •  The Guyana Defence Force

       The Edinburgh Institute and the University of Utrecht have set up field stations in the Foresl
 Concessions and their research is based on compilation of empirical data over time.
       The agencies GAHEF and GEMCO conduct independent field surveys of short-term duration,
 focussing  on those areas which are reported to be  environmentally unstable and which neec
 immediate corrective treatment.
       The security services, through their patrolling activities in  the hinterland, complemented b^
 aerial reconnaissance,  network  with the principal agencies in Guyana which  deal with extractive
 industries or environmental monitoring systems. Thus the services share information with the Geology
 and Mines Commission, the Forestry Commission,  and GEMCO and GAHEF, and they provide
 interdiction support for these agencies.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        209
       Training programmes. In order to be able to acquire Information on the impact of economic
activities on the environment, Officers and Ranks of the Defence Force are given orientation training
to equip them to spot abberations in the management of logging and mining operations. They are
also involved in monitoring of wildlife and especially in cross-border trade.

3.2     International assistance for enforcement

       The state of the Guyana economy has imposed serious limitations on the ability of agencies
involved in monitoring and enforcement to be effective in their operations.
       The limiting factors are summarised as follows:
       • Inadequate access to satellite photographs of hinterland areas where mining and
         logging  operations  and  demographic  factors  have  had an  Impact on  the
         environment.
       • Inadequate mobility, specifically in terms of  being  able to  sustain helicopter
         operations in support of monitoring and interdiction efforts.
       « Inadequate communications—HF and VHP—for field operations.
       • Inadequate kits and equipment for  troops and resource persons involved in
         operations in remote and rugged terrain in all types of weather.
       • Inadequate networking in  intelligence and information matters  with bordering
         countries and international agencies.
       • Scarcity of qualified scientific personnel who are needed to augment existing
         human resources in research and monitoring activities.
       • Need for more functionally relevant'educational  programmes  aimed at schools,
         miners, loggers, agriculturists, wildlife traders etc.  in order to minimise the negative
         impact of potentially environmentally unfriendly economic activities.
       REFERENCES

1.  Report by the Commonwealth Group of Experts—Programme for Sustainable Tropical Forestry,
   International Institute for Sustainable Tropical Forestry. Volume 3, Annex X, 22 May 1990.
2.  Ibid.

3.  Visual Observation of the Mahaica, Mahaicony Abary Scheme, which in its first phase has em-
   poldered an area of approximately 2000 km.

4.  Commonwealth—Government of Guyana Programme for Sustainable Tropical Forestry: Report of
   the Commonwealth Export Group—Mining Restoration. Volume 3, Annex X1, 22 May 1990.

5.  Guyana Review No. 1, Feb. 93, pp. 20-21..

6.  GEMCO Release to  the Media dated 8  Jan.  94—Report on Results  of Tests  Conducted in
   Konawaruk, p. 8.

7.  Guyana Review No. 5, June 1993, p. 10—Guyana's Wildlife  Trade.

8.  Commonwealth—Government of Guyana Programme for Sustainable Tropical Forestry: Report of
   the Commonwealth Expert Group. Volume 3, Annex X111, p. 1, Guyana May 1990.
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210                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       APPENDIX 1.

1.3.5.02.     Region Number 2 (698,109 ha) (est. pop. 1985:42,268)
       This Region extends from the Maruka River, ali along the Atlantic coast on to the Essequibo
and then comes down the watershed  between the  Essequibo and Supenaam rivers. It joins the
watershed between the Cuyuni and the Supenaam and the Cuyuni and the Pomeroon, and then it
joins the Manawarin and comes up the  Moruka to the Atlantic.

1.3.5.03.     Region Numbers (437,818 ha) (est. pop. 1985:104,747)
       This Region is bounded on the north by ttie Atlantic, fieri along the left bank of the Demerara
River it joins the watershed between the Demerara and Essequibo rivers and the boundary reaching
the point at Makouria, where it crosses the Essesquibo to Tiger River and conies up the Tiger River
to the  watershed,  it joins the watershed right up to the watershed between the  Essequibo and
Supenaam and comes from that watershed back to the Atlantic.

1-3-5.04,.    Region Number 4 (274,036 ha) (est. pop. 1985: 318,752)
       This Region extends from the Demerara River to the Mahaica River., It is bounded on the, north
by the  Atlantic  Ocean, on the east by the Mahaica River right up to its source,  across the watershed
there between  the Mahaica and Demerara rivers and  joins the Demerara River through the Moblissa
River, The boundary then runs along the west bank,of the Demerara River and back to the Atlantic.
The Georgetown Harbour is included in this Region and so the entire Demerara River had to be
included, along with the East Demerara Water Conservancy.

1.3.5.05.    Region Number 5 (463,418 ha) (est. pop. 1985: 53,862)
       This Region extends from the Mahaica River to the Berbice River. It is bounded on the north'
by the Atlantic Ocean sind runs right down the left bank of the  Berbice River until ft reaches in the
vicinity of the Torani Canal. It extends along the watershed between the Abary and the Wiruni rivers,
and the Mahaicony and Wiruni rivers until it joins the Mahaica River and then connects to the Atlantic
The MMA-ADA Project, including all the infrastructure, the conservancy, the main canal, the dams
and the subsidiary drains, is found in this Region.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                    211
        APPENDIX 2.  ECONOMIC ACTIVITIES
                                                                            Aomlnbtrattv* Rtajans
         Agrlcultur* artaj
 I. (Oft««-W«W
 2.
          - w««t
 4. o«mw« - wataka
 3. UOtalu-KrMc*
 C. Cnt Mrtki - CarirUr<«
 T. Cuxuit -
 f.Pillar*- »»«raft<
 ». Upwr Tlkutu. Up»«re*at«itfca
10. u»p«r D*«i«>v« > iifblci
     O  Bouxitt Mints
         Mangantst Mints
     D  Manufacturing Industries
         Gold  a diamonds
         Main  Rocid
    	Minor Rocid
    ••••t Admlristnitivt Regions ^
    a  0  jo  jo  -o  so
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212                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        213


COLLABORATION IN ENVIRONMENTAL ENFORCEMENT: EXPERIENCES WITH
THE BUILD-UP OF A COORDINATED ENFORCEMENT STRUCTURE

TINDEMANS, JAN J. M.

Deputy for Environmental Affairs, Province of Limburg, Postbus 5700, NL-6202 MA MAASTRICHT,
the Netherlands


       SUMMARY

       The enforcement of environmental regulation in the Netherlands  is the task  of several
administrations, police, and Public Prosecutor, Enforcement as an instrument of environmental policy
is a growing field of interest for each of the bodies concerned. Their activities have been uncoordinated
until 1990.
       The Province of Limburg started with the build-up of a coordinated enforcement structure in
order to achieve coordination of activities in 1991. A general view of the enforcement structure and
the participants  is given. The problems in building up such a structure are described.  Some
suggestions are made about how to improve the collaboration.


1      INTRODUCTION

       Umburg is one of the twelve provinces in the Netherlands. It is the most southern province,
and its borders are for the most part also the national borders. It borders on Germany and on Belgium
(Flanders as well as the Walloon provinces In Belgium). It has 2.209 km8 and 1,1 million people.
Major sources of pollution are industrial activities (chemical industries, power plants), agriculture (very
high degree of acidification, pollution of surface water by herbicides and pesticides, extraction of
ground water), and winning of surface minerals (gravel, mare, clay for ceramic industry, concrete,
and masonry sand).
       Permits for  industrial or agricultural activities are given by a number of administrations (the
Province of Limburg itself, 56 municipal authorities,  3 regional Waterboards, the national Ministry of
Traffic and Water, and in some cases the national  Ministry for the Environment),
       Although the permitting authority is primarily responsible for the enforcement  of permits, a
great number of other authorities also have a role  in establishing compliance to environmental laws:
2 regional police authorities, 2 public prosecutors for the environment, the A.I.D. (National Inspectorate
for Agriculture), the border police (customs), and others.
       In 1990 the Minister for the Environment, also on behalf of the Ministers for Traffic and Water,
for Justice and of Home Affairs prescribed that the environmental enforcement would primarily be a
task of the regions and that the provincial authorities would be responsible for the coordination. Such
a region consists of each of the municipalities and serves as a forum where consultation about and
tuning of policy and actions is possible. When I talk about regions I don't mean a certain territory but
the formal body in which the municipalities cooperate. Such a body has administrators that are chosen
by the municipalities (mostly mayors or aldermen) and a very small civil service. In Limburg 5 of such
regions exist in which all 56 municipalities in the province participate.
       SKETCH OF THE STRUCTURES

       We have decided to set up the enforcement structure on 2 levels;
       »  The level of the region.
       •  The level of the provincial territory.
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214                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       On each of these levels there exists furthermore a body where the administrations meet (the
politically responsible) and a body where officials confer.
       The province of Limburg, administrators of Environmental Affairs of the 5 regions, the chairmen
of the 3  District Water Boards, the director of the Mission of Public Works, the inspectorate for the
environment, 2 Public Prosecutors, 2 commanders of police, and a representative of the A.I.D, (under
the chairmanship of the provincial representative) form the  provincial territory level.
       The task of the province is to determine the annual enforcement program, to stimulate and
coordinate the realization and development of the regional consultations to tune enforcement policy,
and to identify and discuss bottlenecks.
       On the regional level there exists a forum for each of the  5 regions (called R.M.O.).  Every
community of the region and the other authorities mentioned above have a seat in those R.M.O.'s.
       The chairman is the  administrator for the environment of this region,
       In each of those 5  districts a special coordinator is appointed. I will discuss his role further on.
       Broadly speaking we can say that the structure has been realized in a relatively short period.
       All necessary authorities have been brought together: Enforcement programs on provincial
and regional  levels are put up and are in the process of being carried out, many of them in cooperation
between several authorities;  the official structure, more particularly the work force, has  been filled in.
 3      EXPERIENCES

        It is  clear that the  execution of good environmental policy and of good  environmental
 enforcement is only successful if every party executes its task in a proper way. In view of the very
 large autonomy of every authority, a perfect execution is very difficult.
        The consultation  I described plays an important role in a good  coordination  and control ol
 the execution of everyone's  autonomous and of the common tasks.
        A large involvement of public administrators, i.e., deputy of the province and aldermen of the
 communities and a qualified civil service of all administrations concerned are necessary to obtair
 this goal.
        The decision of the  Minister of the Environment to put the responsibility of the execution ol
 environmental enforcement primarily on a regional level is not undisputed.
        The regions have no independent task in environmental policy but only tasks derived  frorr
 municipal tasks. They have no tasks in granting permits. Furthermore the regions have no means tc
 compel the municipalities in a decision process. The decision process in the region can only take
- place by consent of all municipalities, while on the other hand representatives of the municipalities
 often get too few mandates.
        Besides the democratic control on the region by city councils is arranged in a rather bad way
        We can conclude that all those factors sometimes cause a slow and difficult decision process
 and it is no wonder that  after all it is sometimes difficult to agree on  common action.
        It will be  necessary to find a solution for this  impasse: either by giving clear  responsibilities
 to the regional administration, or  by giving the representatives of the municipalities a mandate.
        If both solutions can not be  realized, the responsibility for an adequate enforcement on  cleat
 and  verifiable agreements  has  to be divided between separate municipalities and provincia
 administration.
        On first sight this seems a typically Dutch problem, but experiences in and contacts witr
 Germany, the U.K.,  and  Belgium  point us in the same direction; an  adequate environmental policy
 can only be realized and enforced by a clear responsibility on a political-administrative level.
        Cologne  and Aix-la-Chapelle have not been built in one day, as we say in the Netherlands
 And this also goes for building environmental policy and a policy on permits and enforcement. Forcefu
 enforcement can only take place when the rules  to be enforced meet each of the following
 requirements:
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         215
       » Clearness of rules: there must be no room for dispute on the interpretation of the
         rules.
       » Enforclblty of rules: the permit holder or others that are to comply with general
         rules must be able to comply. Too strict rules that are impossible to comply with for
         larger groups of plants or persons for economic and/or beclinieal reasons cannot
         be successfully enforced.
       • The rules must have a clear position in  the  general  environmental policy and
         contribute to the attainment of the goals of this policy.

       This may seem trivial to you but I can assure you  that in the Netherlands, we still have many
problems caused by the fact that not all of the mentioned requirements are met.
       Particularly municipalities have problems in formulating environmental policy and setting goals,
       None  of  the  participants doubt  the advantages of and necessity of cooperation in
enforcement, as the enforcement for some companies or activities is the competence of two or more
authorities.
       Both for the companies and the authorities, coordination of enforcement offers the advantages
of efficiency and effectiveness.                '
       The company or citizen concerned  meets a well-organized administration that is to be taken
seriously. Furthermore their shortcomings are pointed out in one go instead of several. This often can
lead, particularly when their problems occur on a larger scale, to a coherent program of measures.
For the enforcing administrations it is possible to be able to use the knowledge of their colleagues.
       And still...
       In practices everything appears more difficult than in theory; emotions are high about the threat
of the loss of autonomy,  holding on to own  priorities, hesitations  to spend the  tight budgets on
common projects, doubts about  competence  of  colleague-administration. Those and other
understandable sensitivities block or slow down the process build-up of enforcement. Cooperation
has to grow. Too high expectations, and a too  large effort can disturb this process. It's therefore wise
to start with not too sizeable cooperation projects where there is benefit for every party. This gives
everyone the opportunity to get used to one another and to leam about sensitivities, possibilities, and
limitations.
       A good example of such a project is the helicopter project. From a helicopter it is possible
to overview a large area at high speed and to reach places that are otherwise hardly accessible.
       Thus it is possible to scan infringement of general rules, for instance, rules with regard to the
disposal of refuse (illegal deposit), to the  use of manure (e.g.,  in periods where it is forbidden to
apply manure to the land), to the use of groundwater, etc.
       The police put a helicopter with crew at the disposal of one of the administrations involved.
Ground support is offered by the administrations concerned. The area to be inspected, the subjects
of the inspection, the authority at  whose disposal the helicopter is, are all programmed in an
enforcement program. Special attention has to be given of course to quick and forceful action by the
administration concerned. Sometimes action by police or  Public Prosecutor will be necessary. It goes
without saying that such action should be well coordinated.
       Information  plays  a key role in a  coordinated enforcement structure. The ministerial  plan
stretches out that in every region there should be a C.I.R (coordination and information point). Every
participant in the regional enforcement structure should both give and receive information of this C.I.R
on several questions concerned. For example: what are the features of the permit for a company
given by another administration; does this other administration have a surveillance action in the  near
future; what is the overall impression of a certain company; are there any special facts which should
be taken into account?
       No one doubts there is a clear need for such a C.I.R And it is also clear that for reasons of
storage of information and exchange of it, there is a need to develop a provincial-wide standardised
and automated information system, based on an objective analysis of commonly agreed  upon
information need.
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216                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Yet there are some big problems in the build-up of such a system. First of all these is the
problem of privacy-regulation. Especially in the case of "weak" information, it is very doubtful if it is
allowed to store such suggestions and pass them to another authority. This problem is at the moment
the subject of discussion in the national Registration Chambre.
       But there is another problem which is even more difficult. The point-of-view of participants in
a regional coordinated enforcement structure is rather different. The permitting authority is primarily
concerned if a certain company does indeed comply to the conditions of the permit. On the other
hand the police are only interested if there are suspicions of criminal acts.
4      CONCLUSION

       Although the build-up of the regional and provincial enforcement structure was successful
and took only two years, there really is no reason to be too satisfied.
       There are a lot of rather normal problems which go along with structuring a new organisation;
there are  new problems, especially those related to information needs; and  there is a  structural
weakness following the choice of the region as primarily responsible for environmental enforcement.
       It will be necessary to evaluate the enforcement structure in a few years, and not hesitate tc
decide for a change when the chosen structure turns out to be too less effective.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        217


ENFORCING ENVIRONMENTAL REGULATIONS RELATED TO INDUSTRIAL AND
OTHER ECONOMIC ACTIVITIES IN RUSSIAN FEDERATION

MAKSiMENKO, YURIY

Director, Department of the Environmental Legislation & Regulations, Ministry for Environment and
Natural Resources Protection, Bolshay Gruzinskay str., 4/6, Moscow, Russian Federation, 123812


       SUMMARY

       Summary of present environmental situation in Russian Federation is given; characteristics of
existing enforcement mechanism and its components for environmental requirements execution are
given; state authorities and government administrative organs responsible  for its functioning are
discussed.  Facts  about practical activities -directed  toward implementation of enforcement
mechanisms, including instituting administrative, civil, legal, disciplinary, and criminal responsibility,
are adduced.
1      INTRODUCTION

       Nowadays, the environmental situation on the territory of Russia is considerably determined
by general economic processes, mainly caused by the following factors; disintegration of the political,
administrative and economic structure  of the former USSR; the existence of long-time negative
tendencies  formed in Russian economy, when it was part  of  the USSR;  and by the  new
social-economic processes taking place in the country, which developed during radical economic
reform.
       The real possibilities of solving environmental problems on intergovernmental levels and in
Russia itself became worse because of the USSR disintegration. The disturbance of interrepubltean
connections had a negative influence on the production of nature-protecting equipment, reagents for
sewage and waste gas disposal, and other products necessary' for environmental protection.
       The structural deformation of the Russian economy—manifest by hypertrophy of resources,
capacious, and often  "dirty" factories,  general technology,  industry, agriculture, and construction
retardation, high concentration of enterprises in some regions, and infrastructure retardation—have
been the main unfavorable influences on the environment among the other long-term negative
tendencies formed in the past.
       During radical reforms Russia came destabilization of the financial system,  non-solvency of
enterprises,  and inflation  growth, that to a marked  degree caused recession in  production and
investment activity.
       In comparison with 1991 in 1992 the volume of industrial production on average in the Russian
Federation reduced to 18.8%, including such branches of industry as non-ferrous metallurgy, to 26.8%,
and chemical industry, to  22.2% [1], However, the considerable drop in production doesn't lead to
adequate reduction of environmental pollution. For example, the volume of air pollutants reduced
only to 11 %, and the reduction of sewage disposal was insignificant
       As a result, in 1992 one or several points of atmospheric air quality standards established in
the Russian Federation were exceeded in 171 towns, the excess of these standards by 5 times was
fixed in 55 towns, by 10 times in 83  towns, and 50 times in 9 towns  of Russia.
       The water quality in the majority of reservoirs doesn't correspond to the standards. There is
a trend toward increases in the number of reservoirs with high water pollution levels (up to 10 times
higher than present standards) and  increases in the episodes number of extremely high (more than
100 times) pollutants content.
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218                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      ENFORCEMENT COMPONENTS OF ENVIRONMENTAL REQUIREMENTS
       EXECUTION IN RUSSIAN FEDERATION

2,1     Legislation in the usage of natural resources sphere in environmental protection

       In December 1993, the new Russian Constitution was accepted by national Referendum, and
from December 25,1993, it began functioning. According to the Constitution "everyone has a right
to a favourable environment,  true information  about its state  and for compensation of health or
property damages, caused by ecological infringement of the  law" (article 42).
       Also, previously accepted laws of Russian Federation, including legislative acts improving
laws exclusively in the sphere of quality management of environment, continue to be in force,  the
following laws among them: "About atmospheric protection" (1982), 'About sanitary-epidemiologicai
prosperity" (1991), and "About environmental protection" (1991),
       There are laws in the Russian Federation, Jike all over the world, regulating rights in the usage
and protection of some sorts of natural resources spheres, for example: "Water code of the RSFSR*
(1972), "About protection and  usage of animals"  (1982), "Land code of the RSFSR" (1991), "Aboul
entrails" (1992), and "Principles of forest legislation in Russian Federation" (1993).
       There are some legislative acts, in which environmental requirements are attendent. They are
the following: "About property in the RSFSR" (1990), 'About enterprises and business undertakings'
(1990).-"About sanitary-epidemiologicai prosperity of population" (1991), "About investment activities
in Russian Federation" (1991), 'About local government"  (1991), "About enterprises property tax'
(1991),  "About  principles of tax system in  the  Russian  Federation" (1991), "About profit tax o
enterprises and organizations" (1991),  and 'About principles of town-planning in Russian Federation'
(1992),
       The following bills are supposed to be worked out and  approved in the  environmenta
protection sphere during the next one or two years in the Russian Federation: 'About particularly
protected natural territories," "Environmental impact assessment law," "About environmental review,'
'About nuclear security," 'About waste  industrial and consumption products," "About the Lake Baika
protection," "About the Northern nature protection," and some others.

2.2    Normative base of environmental protection in Russian Federation

       The normative base of environment protection includes three groups of requirements, norms
and rules:  (a) environment quality standards and norms, (b) environment influence norms, and (c
environmental rules.              • -
       Environment quality standards  determine  maximum permitted  values of environmen
pollutants and other normative indices. The following three indices are the basis of environment qualit;
norms: medical (friresholding level of human's health), technological (the economic ability to assun
execution of fixed influence limits on human and his life conditions), scientific and technical (technics
means the ability to provide control after maintenance of all parametres limits influence).
       Environment influence norms determine maximum permitted values of economic and othe
activity influence, necessary for environment quality standards maintenance. These norms ar<
maximum  permitted influences (chemical,  physical, acoustic, biological, and so  on): maximun
permitted concentration of unhealthy substances, maximum  permitted wastes, escape of unhealthy
substances, radiation influence  norms, noise, vibration,  content norms of residual  chemics
substances in food products,  and so on.
       Environmental rules are rules for  conducting economic and  other  activities (licenses
permissions, instructions, and so on), the observance of which assures environmental security of thi
society.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         219


2.3    State  administration bodies, implementing enforcement mechanisms  for  environmental
       requirements execution

       Nowadays, in Russian Federation there is a system of State administration bodies, including
the Russian Federation Ministry for Environment and Natural Resources Protection (Minprirody) and
its 88 territorial environmental protection administration bodies in Russian Federation subjects,
       Realization of enforcement mechanisms of environmental requirements execution, specified
by the Russian Federation legislation and by corresponding normative documents, is one of the main
tasks of the Ministry and its territorial organs.'

2.3.1   State environmental review offices

       The State Environmental Review Office of Minprirody and its 88 territorial bodies in Russian
Federation subjects organize and implement prospective  environmental control of  environmental
requirements execution during  preparation of economic and other  decisions about social and
economic development. Overall number of state environmental review offices members is about 650
persons.

2.3.2  Control and inspection services

       Control  and inspection services of territorial organs of  Minprirody in Russian  Federation
subjects implement state environmental control of environmental standards and rules execution during
current economic activity. This system also includes 936 towns,  1176 district and 101 inter-district
environment protection committees,  and 249 specialized inspectors of analytical ecological control.
Overall, this totals more than 15000 persons, and for state sea service inspections the number is 9.6
thousand persons. Inspection services of specially authorized Russian State organs in the usage and
protection sphere of water resources, entrails, forest resources, fish resources, and land resources
also realize the compulsion mechanisms of ecological demands execution during usage of some
kinds of natural resources.
2.3.3  Legislation activities'	~             	" ~  	" ""	"

       The  legislation organs activity—Office of Public Prosecutor, Courts and Arbitration courts,
Organs of home affairs—also implement the enforcement mechanisms of environmental requirements
execution. Nowadays, in Russian Federation there are 66 environment protection Offices of Public
Prosecutor, which carried out 5623 examinations of environment protection legislation execution in
1992; 1915  illegal  law acts were abrogated under demands and protests of procurators, 79 were
abrogated in public courts. In 1992 the Arbitration  court organs examined about  9000  disputes
connected with the breach of environment protection.legislation (in 1991, only 3300 such  disputes
were examined); as a result, about 4,5 milliard rubles were recovered from infringers of environmental
requirements (In 1991, only 114 million rubles); and actually 2,8 milliard rubies were recovered. Most
of them were disputes about recovering payments for environment pollution and forest disturbances.

2.3.4  Other environmental monitoring activities

       Nowadays, except Minprirody, several other departmental services implement environmental
monitoring and iis  results characterise the effectiveness of environmental requirements, norms, and
rules execution, namely:
       •  State control and supervision service of environment status.
       •  Monitoring service of forest fund.
       •  Monitoring service of water resources.
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220                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       • Monitoring service of geological environment.
       • Agricultural chemistry service and monitoring of agricultural lands pollution.
       • Monitoring service of lands.
       • Sanitary and hygienic control of human environment and health.

       Service and monitoring systems mentioned above are directed towards supervision anc
estimation of the status of some environment components and some kinds of natural resources. Each
of these systems functions independently, and actually doesn't coordinate with other programs.
3      IMPLEMENTATION OF ENFORCEMENT MECHANISMS OF ENVIRONMENTAL
       REQUIREMENTS, NORMS, STANDARDS, NORMATIVES, AND RULES EXECUTION

3.1    Administrative mechanism

3.1.1   State Environmental Review

       One of the main tasks of State Environmental Review is estimation of how are environmenta
consequences taken into account in development activity projects.
       According to the article 36, part 2, of the Law of Russian Federation  "About environmenta
protection," projects and programs can't be financed and especially implemented without positive
conclusion of State environmental Review Office. If this demand is broken, article 86,  'Administrative
responsibility for environmental  infringement of the  law" (point 1, part 2)  of the Law of  Russiar
Federation "About environmental protection" comes into operation.
       In 1992 the system of Environmental Review  Offices of Minprirody examined  56000 units o
different projects, and their approximate realization cost is more than 460 milliard rubles. Among then
70% of documents were recommended for realization, 9% were declined, and 21 % were returned fo
revision.

3.1.2  State Environmental Inspection

       State Environmental  Inspection officials of the  system of  Minprirody are entitled to visi
enterprises independently of their property form and subordination; to examine maintenance c
environmental quality standards; to give permission for the right for disposal, release, and distributioi
of harmful substancef to demand" elimination of  revealed defects;  to  institute  administrate
responsibilities  against quality persons in established orders; to make decisions about restriction
suspension, and stoppage of enterprise work  that  is responsible for environmental pollution or i;
potentially dangerous for human health (article 70,. part 2, RSFSR Law "About  environments
protection").
      • In 1992 in Russian Federation about 286000 enterprises and organisations were examinee
and it was found that  16,6%  of them infringed fixed influence normatives on environment. Activitie
of more than 700 separate workshops, agrigates, and constructions were suspended.
       In 1992 state environmental control organs made 90000 examinations of legislation demand
execution in the sphere of land protection; 608000 environmental  infringers were found  on an overa
square of 1,6 million hectares.
       In 1247 occasions the started works were suspended because the legislation demands aboi
entrails were infringed. In addition, 126000 infringements of  legislation about fish resources wen
found in internal fish-farm reservoirs.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         221
3.2    Economic mechanisms

       Economic mechanisms include two categories of factors, positive and negative, which are
introduced in  order to maintain high economic  interest of nature user to  preserve favourable
environment. But this aim is achieved by different methods. One of them deals with positive influence
factors (financing, crediting,  privileges when environmentally pure technologies  are applied, when
taxes are added) and thus straight economic stimulus for environment protection are formed. Negative
factors, on the contrary, influence economic interest by withdrawal of the part of income as payment
for exploitation of natural resources, for environmentally harmful products, or products produced with
the usage of environmentally dangerous technologies.
       The most considerable measure  of economic stimulation  is payment for usage of natural
resources. There are two kinds of payments,  which depend on usage: withdrawal, or consumption
of natural substance and escape, and disposal, or distribution of garbage in environment. Payments
for usage are sent to local budgets for expending for needs of protection  and reproduction  of
corresponding kinds of natural resources.
       Payment for disposal of pollutants into environment is  introduced in  1991  in the Russian
Federation, and the order of its collection is established. Nowadays, about  46000 enterprises,
independently from their departmental belonging, kinds, and forms of property, pay for environmental
pollution, for disposal of harmful substances into atmosphere from stationary and mobile sources of
environment pollution, release of harmful substances  into  surface and underground waters, and
distribution of  industrial and consumption garbages.
       Payment for disposal, release, and distribution of garbages is transferred by enterprises that
pollute environment into environmental funds. In 1992 more that 833 million rubles were recovered,
taking into account suits brought earlier for the infringement of environmental requirements.
       The future direction of development of compulsion economic mechanism of environmental
requirements  execution  will be the establishment of cost  normatives for radioactive,  noise,
electromagnetic influence.

3.3    Mechanism of juristical responsibility for environmental infringements

       Juristical responsibility'forenvironmental infringements In Russian  Federation is~divided into
administrative, civil,  legal, disciplinary and criminal, depending on sanctions applied.
       Administrative responsibility for environmental infringements is the most widespread kind of
punishment. In 1992, 38733 persons were instituted to this kind  of responsibility,  and penalties were
more than 82.5 million rubles.
       Civil and legal responsibility is a part  of the struggle with environmental  infringers.
Compensation of caused damage is the  measure of responsibility.
       In 1992 prosecutors brought suits to public and arbitrage courts on 0,5 milliard rubles for
compensation of environmental damage.
       Disciplinary  responsibility potentially has high effectiveness  in the struggle  with ecological
infringers. In 1992,  6300  officials were  instituted  to disciplinary responsibility  for  infringement  of
environmental requirements by prosecutors' order.
       Criminal responsibility for infringement on  environment  foresees the following punishment:
imprisonment, reformatory works, compensation, confiscation, make person to correct caused harm
and so on. In 1992, 291 criminal cases against 416 persons were instituted and directed to court on
the basis of facts of criminal infringement by enterprises of environmental requirements connected
with environment pollution. In addition, 880 criminal cases against 1269 persons were investigated
and directed to courts by home affair organs, based on the facts of illegal fishery, fur-seal hunting,
illegal hunting, forest cutting.
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222                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4      MAIN CONCLUSIONS AND METHOD OF IMPROVEMENT OF ENFORCEMENT
       MECHANISMS OF ENVIRONMENTAL REQUIREMENTS EXECUTION: WAYS OF
       REACHING AGREEMENT

       Environmental situation  in Russian Federation remains very strained and the role of
enforcement mechanisms of environmental requirements, norms, standards, normatives, and rules
execution in it is very high. The present state of this question fixes the following positive points of law
practice.
       There is extensive legislation in Russia in the sphere of environment protection, and also there
are great number of environmental requirements specified in the legislation of other spheres of social,
and economic  development of the society.
       General environmental requirements are gradually conducted from legislation to the level ol
normative-methodical documentations, that permit applying them into practice.
       A wide network of administrative organs and organizations exist and function. This network
contributes to execution of environmental  requirements and does it with the help of administrative
and economic compulsion mechanisms.
       The majority of existing  In world  practice kinds of juristical responsibility for committing
environmental infringements; administrative, civil, legal, disciplinary, criminal, are present.
       At the same time, environmental situation in Russia indicates that present organization ol
environment protection in general and law practice in particular require serious improvement. The
main ways may be the following:
       •  Reconstruction of  legislation in the sphere of environment protection and natural
          resources usage, keeping in mind that in trie new Russian Constitution this sphere
          is regarded to the joint management of Russian Federation and its subjects.
      •"»  Working out new and improved legal norms, including environmental requirements,
          that  to an even greater degree meet public interests in favourable environment;
          expansion of public participation in this work.
       *  Improvement of  administrative and; economic compulsion  mechanisms  of
          environmental requirements execution during economic or other activity.
       •  Reorganization  of department monitoring systems and creation of united  state
          system of environmental monitoring.
       •  Conduction into the  system  the acception of decisions  of  all levels:  from
          conceptions, plans and programs up to the construction of concrete economic
       •   objects, procedures of estimation of planned activity influence on environment, as
          one  of the measures of working out environment requirements and conditions  for
          stable social, economic development.
       *  Development of negotiations about environment problems, including working out
          environmental  requirements and conditions for conducting economic and  other
          activities and achievement of the agreement in society about the necessity of their
          realization.
       •  Working  out the  program of  measures  for  improvement of  environmental
          mechanisms of execution of environmental norms, standards, normatives rules for
          economic and other activity for Russian Federation,
       REFERENCE

 1. State report. 'About environment state in Russian Federation in 1992," 1993, p.102.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL. ENFORCEMENT                       223


ENFORCEMENT OF RULES AND REGULATIONS CONCERNING THE
PRODUCTION AND APPLICATION OF ANIMAL MANURE IN THE NETHERLANDS

8ERGKAMP, RENEE M.

Deputy Director, Legal Affairs and Industrial Organization Department, Ministry of Agriculture, Nature
Management and Fisheries, P.O. Box 20401, NL- 2500 EKThe Hague, Netherlands


       SUMMARY

       The amount  of surplus manure which  is produced  in the  Netherlands poses a major
environmental problem. Since 1986 the country has been seeking to  tackle the  problem through a
phased approach.  This paper sets out the problems, the solutions, and the manner of enforcement.
Although the situation is now under control, the measures taken so far need to be adjusted to realize
the targets set for the year 2000. As to enforcement, there is also reason to strengthen the present
system of criminal enforcement of generic  standards. The paper concludes with a description of a
proposed system of administrative enforcement through regulatory  levies,  which is more tailored to
farm-specific situations and focuses on the individual responsibility  of farmers,


1      INTRODUCTION

       Over the past 25 years intensive livestock systems have boomed in the Netherlands, pig and
poultry production in particular (see Table). At these factory farms, which  usually have limited land
attached to them, large numbers of animals are kept indoors.

       Livestock numbers in the Netherlands '('000) (1)

                            1970                 1992

       Layers                25300      .          45000
       Broilers               30100                46 500
       Pigs                   5 533      •          14161
       Cattle                 4314      .           4920
       The development of intensive livestock systems is due to a combination of preventive disease
 control, which meets veterinary objections to Keeping large numbers of animals, and the availability
 of feed from outside the farm, in the past a farmer needed land to grow fodder crops for his animals,
 whose manure he used to spread on the land. The separation of production from land in intensive
 livestock systems is one of the main causes of the surplus manure problem. Now that manure has
 become a surplus product the farmer producing the manure has to incur expenses (e.g. for transport)
 to get rid of his manure. The risk of over-application of manure on the land is then very real. Initially,
 the  surplus manure problem  was a problem  at the level of the farm. Also due to regional
 concentrations of pig and poultry farms in the southern  and eastern  Netherlands, it gradually
 developed into a regional problem, and eventually it became a problem nation-wide.
       Over-application of manure in agriculture has serious consequences in various fields. Apart
 from affecting the  soil's productive capacity,  it  causes damage to the environment since (soil)
 ecosystems are affected and ground and surface waters are polluted.
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224                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In the 1980s the surplus manure problem caused the Dutch government to draw up a new
system of rules and regulations.
2      THE DUTCH APPROACH TO THE SURPLUS MANURE PROBLEM

2.1    General

       When addressing the surplus manure problem, it soon became clear that the solutions
required would not present themselves overnight. Therefore a phased approach was decided on,
also because the problem had to be approached from three different directions:
       » to reduce the mineral content of animal feed;
       • to promote long-distance manure distribution;
       » to set up manure processing factories.

       Because of this phased approach the establishment and gradually tightening of standards
could run parallel to the development of solutions.
       The approach breaks down into the following phases (2):

       Phase            Period               Target

       	1            ...1987-1991   	, stand-still
          2             1991-1995           reduce problems
          3             1995-2000           achieve a balance
          4   ~         > 2000             balanced application

       The final objective of the manure and fertilizer policy, which is to be achieved in 2000, is to
achieve an equilibrium foetween inputs and outputs, that is, between the amount of manure applied
and crop uptake. The  option to  have the government structurally realize technical solutions was
explicitly decided against; responsibility for such solutions should lie  primarily with agribusiness. It
should be noted, however,  that the  government encourages the development of solutions to the
surplus manure problem via various instruments,  such  as  legislation,  information, and financial
incentives.
 2.2     Legislation

        In the mid  1960s rules and regulations were  drawn up governing  the production and
 application of animal manure using fixed standards for manure production and for manure application
 and off-farm distribution. These standards are based on phosphate (PaOs) since this element is stable
 and therefore can be used to set standards with due regard for the agricultural manure application
 policy and soil protection policy. Nitrogen (N) is less suitable to base standards on since it is stored
 in the soil in all kinds of forms and volatilizes partly as ammonia.
        Manure and fertilizer legislation covers some 70% of ttie land area of ttie Netherlands anc
 focuses on three groups:
        •  about 50 000 producers of animal manure;
        «  about 700 intermediaries (traders, hauliers, and storekeepers);
        »  about 40 000 receivers of animal manure.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         225
2.2,1   Rules and regulations governing manure production

       Rules arid regulations governing manure production have been laid down in the Act on
Manures and Fertilizers (3). The Act on Manures and Fertilizers  aims to prevent irresponsible
expansion of production of animal manure. The Act offers several instruments to achieve this aim,
the most important of which are:
       • Registration of the herd on a fixed reference date. This registration is the basis for
         the maximum amount of manure that may be produced (the so-called reference
         quantities).
       » A ban on expansion, implying that manure production should not exceed 125 kg of
         phosphates per hectare per year, unless a producer  has been allocated  a
         reference quantity.
       • A surplus levy, to be paid by all livestock farmers producing more than 125 kg of
         phosphates per hectare per year.
       » An obligation to keep a manure ledger lex all surplus manure farms in order to
         monitor whether reference quantities are not being exceeded and whether excess
         manure is distributed off-farm in a responsible manner.

       In 1986 the Act on Manures and Fertilizers only applied to the manure of pigs, chickens, cattle
and turkeys. As from 1992 the Act also governed the manure of ducks, furred animals, rabbits, sheep
and goats.

2,2.2   Rules and regulations governing manure application

       Rules and regulations governing manure application have been laid down in the Soil Protection
Act (4). This Act aims to prevent the characteristics of the soil that are essential to man, plants, and
animals from being threatened. Under this Act the Use of Livestock Manure Decree (5) sets standards
for the maximum amounts of manure that can be applied per hectare, The standards concern;
       • the anount of manure per hectare for arable land,  maize land, and grassland
         respectively; _
       • the time of distribution: during (part of the) autumn and in winter it is forbidden to
         spread manure on the land;
       * the manner  of  application: to reduce  ammonia emissions manure should be
         incorporated directly in or under the soil (e.g. slurry injection).

2.3    Enforcement (8)

       The present manure and fertilizer legislation provides for an enforcement system which places
the responsibility for implementation as close as possible to the undertakings, to the farmers. The
rules  are mainly general;  in principle, there are no  individual licences nor preventive government
review. Breaking the general rules results in an  economic offence,  which can be investigated and
indicted under criminal  law. Essential in the manure and fertilizer legislation is that the farmers involved
are to submit their relevant farm data, which are connected with each other by the government and
on the basis of which specific controls are being carried out in retrospect.
       Several bodies  are involved in enforcing the rules and regulations on manures and fertilizers.
The General Inspection Service (AID) of the Ministry of Agriculture, Nature Management and Fisheries
is the central national control and investigation service. The Levies Office, which also comes under
the Ministry of Agriculture, Nature Management and Fisheries, was set up to  implement the levy
system and to recover the surplus manure levies imposed on producers of animal manure. The Office
also registers the reference quantities and processes all data relevant in the light of the manure and
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226                 .        THIRD JNTERNATIONAL.CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


fertilizer legislation of some 50  000 farms producing .surplus manure. The police service is also
involved in enforcing the rules.
       At the instigation of the Department of Public Prosecution and in consultation with the Ministry
of Public Housing, Spatial Planning and the Environment (VROM); the Co-ordinating Police Council's
Standing Committee for the Environment (Permanente Commissie Milieu van het  Coordinerend
Politieberaad) and General Inspection Services developed a National'Manure Scenario. The Scenario
explains the system of manure and fertilizer legislation and describes the tasks of the different services
active in enforcing manure and fertilizer rules and regulations.            .
       The National Manure Scenario focuses  on the  division of responsibilities between General
Inspection Services and the police. The rules and regulations the control of which is primarily a police
responsibility  are described at  length.  General  Inspection Services  bears  primary responsibility for
monitoring production and distribution of animal manure, which means that General Inspection Services
sees to it that manure production rights are recorded, that manure production does not expand in an
irresponsible manner, and that  a manure ledger is kept. As regards the Use on Livestock Manure
Decree, General Inspection Services is primarily responsible  for the amount of manure to be applied
per hectare. Compliance with the provisions concerning time and manner of application can be checked
for by visual inspection. Since patrols in the countryside will be instrumental in improving compliance
with these provisions both preventively and repressively, their enforcement rests primarily with the police.
       Each year between 40 and 42 man-years are devoted to enforcing the manure and fertilizer
rules. Jn deploying this capacity the emphasis is on-cheeking for- compliance with the administrative
obligations ensuing from manure accounting.
       The following figures are illustrative of the number of checks carried  out by General Inspection
Services and the number of official reports made up. In 1991 and 1992 General Inspection Services
carried out 12 541 checks under the Act on Manures and Fertilizers and the Soil Protection Act, In
this period 1 889 official reports were drawn up. The reports  received by General Inspection Services
from the department of Public Prosecution (7) show that 85% to 90% of the cases that were reported
came to a conviction or settlement (8).
       In the context of improving co-operation and harmonization  between the different bodies
enforcing environmental legislation the National Co-ordinative Enforcement Committee (LCCM) has
drawn up a 1993 National Enforcement Programme. In this  programme manure/ammonia is one of
the substances that will be given priority (9). Manure/ammonia will also  have priority in the 1994
Programme.
 3      EVALUATION OF THE POLICY ON MANURES AND FERTILIZERS

 3.1     State of affairs

        Since the Netherlands  has some ten years' experience in making rules and regulations on
 manures and fertilizers, there is plenty to evaluate. In 1993 a general evaluation (10) was made and
 intentions were formulated for  the third phase of the policy on manures and fertilizers, which is to
 start in 1995 and which in 2000 should have realized the final objective of a balanced application of
 manures and fertilizers. There  is general agreement that the present system of legislation, with its
 generic mandatory and prohibitory provisions, has succeeded in bringing about a certain stabilization.
 It may be concluded that:             		"~
        »  The stand-still objective has been realized. Nation-wide, manure production has
          not increased since 1986.
        •  Virtually all parties involved are aware of the seriousness of the surplus manure
          problem,
        •  Together with the government farmers are shouldering the responsibility for solving
          the problem.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         227


       On the other hand, the present system can be criticized, too. Drawbacks are that:
       • The  system is rather  complicated. Also because of the phased approach,  the
         government is reproached for coming up with new rules every time.
       • The  present system provides only for regulation by phosphate-based standards.
         Meanwhile, it has become  clear that the surplus manure  problem is a mineral
         problem. Nitrogen and fertilizer components also should be regulated.
       • The  rate of solution development is too  low.  This is mainly due to the fact that the
         (costly) solution of processing manure has not yet got off the ground.

       This enumeration of advantages and disadvantages leads to the conclusion that the system
is to be adjusted if the objectives of the third phase of the  policy on  manures and fertilizers are to
oe achieved.

3.2    Evaluation of enforceability

       The effectiveness of the policy on manures and fertilizers is largely determined by the degree
of manageability of the policy and enforceability  of the rules and  regulations. This  is why the
enforceability of manure legislation has drawn quite a lot of attention over the years  (11) and has
been modified (12).
       Besides {several technical modifications of a few major definitions and a simplification of the
administrative duties of farmers, an amendment was adopted to create a formal relationship between
the data from msinure accounting on the one hand and the  use of animal manure on the other. This
means that in accordance with his duties  regarding manure accounting  a manure producer has to
show that the surplus manure has been removed from his farm in a responsible manner (shifting the
burden of proof). Moreover, attention was  paid (see section 2.3) to the creation of a strong network
of enforcement  for the sake of adequate co-operation  and harmonization between enforcement
authorities.
       The question is now whether the system of almost entirely criminal-law enforcement of generic
rules is strong enough to start on the third phase of the policy on manures and fertilizers, all the more
since this third phase will require considerable adjustments of policy to achieve the objectives.
       The answer to this question is  that the present criminal-law system needs to be supported.
In this respect the following developments should be noted:
       • Since Ihe current system of criminal-law enforcement as such is not very attuned to
         specific farm situations,  as  a result of technological developments at  the level of
         the  farm  there  is a  widening  gap  between  manure production  and off-farm
         distribution  calculated on the basis of fixed  standards  and  the actual figures.
         Control is  thus  seriously hampered and the  rules are considered unfair, which
         undermines the support for the policy.
       • In the third phase of the policy on manures  and fertilizers investments  in solutions
         are to be stimulated. This is why those who break the rules should be punished
         and what is more those who lead the way  in a balanced application of manures
         and fertilizers should be rewarded. In this way farmers can  be tackled about their
         individual responsibility for the environment.
       • When standards are tightened, the tension  between manure production and
         off-farrn distribution potential will increase. As a result, the already quite- significant
         efforts to implement and enforce the rules which  are made  by the controlling and
         criminal-law bodies will have to be stepped up significantly. This is at odds with the
         government  policy regarding  enforcement, which  increasingly aims to seek
         alternatives to criminal-law enforcement.
       On the basis of these developments it is thought desirable to support the present criminal-law
system with a system based on administrative enforcement (i.e. regulating levies).
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228                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4      MODIFICATIONS

       In order to fulfill wishes to adjust the system, both from the policy viewpoint to achieve the
objective and from the enforcement viewpoint, two projects are now under way  which aim to
recalibrate the present system: the manure distribution  scenario and the regulating minerals
accounting system. Both systems focus on the objective rather than on the means.
       In the manure distribution scenario phosphate production and distribution per farm are to be
harmonized on the basis of phosphate accounting for animal manure under pain of a prohibitory levy.
This levy forces every farmer to dispose of his surplus manure in an environmentally sound manner
or, if this proves impossible, to reduce his livestock numbers. Moreover, this levy-based instrument
is meant to increase the enforceability of the legislation on manures and fertilizers; criminal law will
continue to be used as a safety net.
       Regulating minerals accounting is based on the registration and  notification of all  mineral
inputs (e.g. feedingstuffs) and outputs (e.g. milk and meat) per farm. Unacceptable mineral losses
into the environment will be punished by a levy. This system aims to promote maximum efficiency ol
mineral use at the level of the farm. Already minerals accounting has proved to be an adequate
management tool.
       The manure distribution scenario and the regulating minerals accounting system are based
on the individual responsibility of the producer and user of manure/minerals. In the manure distribution
scenario and in minerals accounting -the instruments of administrative-errforcement will be based or
levies on the amounts of phosphates for which there is no proof that they were used or distributee
in a responsible manner and on the minerals surplus at farms not coming within the margins ol
acceptance respectively.  Both in the manure  distribution scenario and in  minerals accounting
producers and users of manure/minerals will be  given the opportunity to provide specific farm data
on  the basis of which a levy can be imposed which is calculated  on the basis of the specific farrr
situation. Producers and users of manure/minerals will be enabled to take management measures
to satisfy the preconditions set by the government;  in this manner they may also influence the rate
of the levy which may be imposed.
       These projects are implemented jointly by the government and farmers to create as much as
possible support for a change of tack. It should  be noted,  however, that the  government has £
responsibility of its own in this matter, certainly if it has to pay the costs of implementation  anc
enforcement,
       The introduction of instruments of administrative enforcement under the manure distributor
scenario or minerals accounting  will not be realized before 1996 at the earliest. Such a substantia
review of the instruments of enforcement, the incorporation of important modifications in rules anc
regulations, and tie implementation of amended rules and regulations requires time, both  to drau
up precise legislation and to carry out the technical research required. Time is also required to inforrr
target groups about new rules and regulations,
 S     CONCLUSIONS

       Since the Netherlands is on the eve of changing over from a system of enforcement of generic
 standards under criminal law to a system of administrative enforcement via levies and based on the
 individual responsibility of farmers, the systems can as yet not be compared.
       The new system is not without imponderables and it still needs to prove itself. Nevertheless
 on the basis of the experience gained in  manure  and fertilizer legislation  and particularly in its
 enforceability several remarks can be made in conclusion:
       • The particular  phase of policy-making on a particular environmental problem is
          highly relevant to the decision on what instruments will be used. If regarding a
          growing environmental problem direct action is called for, a generic and therefore
          coarse system enforced under criminal law can  work adequately.  The objectives
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"HIRO INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        229


        will then  be such as  reaching  a stand-still  and increasing awareness of the
        problem. The next phase, when the farmer is to adjust his farm management to the
        environmental requirements, will  need a different  set of instruments, with the
        emphasis on  stimulating individual  responsibility. This is why it will cause little
        surprise that it was  found in the Netherlands that criminal-law enforcement of
        generic rules is rapidly becoming more labour-intensive and is under increasing
        pressure.
      • If enforcement is increasingly under pressure because the legal system is less and
        less suited for the target group's situation, it is still possible to achieve reasonable
        success for a certain period of time. If sufficient attention is paid to signals from
        practical enforcement and if there is  sufficient willingness to clarify the rules and at
        the same time invest substantially in a network of enforcement, such a period can
        be overcome. However, enforcing a somewhat outdated system knows bounds.
        Eventusilly, the policy is to be adjusted and new solutions to the problem are to be
        sought. In the Dutch surplus manure  problems this resulted in  a recalibration of
        policy;  at present the Introduction of regulating levies on the phosphate  surplus
        and ultimately on the minerals surplus is in preparation.
      • The challenge as  regards the enforcement of manure and fertilizer legislation in the
        years ahead will be to try and combine the useful aspects of both  systems. This
        means   that  a  system  will  be  developed  of  predominantly  administrative
        enforcement concentrated  on the specific situation at a farm and  on individual
        responsibility combined  with unremitting care for the quality of the rules and
        regulations and for an adequate network of enforcement.

      Whether it will be possible  to strengthen Hie enforcement of  the  rules and regulations on
nanures and fertilizers in the Netherlands in the years ahead remains to be seen. It will certainly not
ae for want of interest from legislators and implementors; their commitment will be a major ingredient
3f success.
 	REFERENCES           	'	

 1.  Facts and Figures 1993: Highlights of Dutch agriculture, nature management and fisheries.

 2.  'Hoofdlijnen van beleid en regelgeving: mest- en ammoniakmaatregelen IKC-veehouderij te Ede'
    (Policy and rules and regulations outlined: manure and ammonia measures IKC-V in Ede).

 3.  Act of 27 November 1986, Official Journal no. 598.

 4.  Act of 3 July 1986, Official Journal no, 374.

 5.  Decree of 25 March  1987, Official Journal 114.

 6,  The Vijfde Voortgangsbericht Handhaving Milieuwet' (Fifth progress report on the enforcement
    of  the Environmental Act) (Parliamentary Documents 1992-1993, 22 343, no.  11) sent by the
    Minister of VROM  also on behalf of his counterpart of LNV to the Second Chamber reports in
    detail about the enforcement of the Act on Manures and Fertilizers.

 7.  Note that AID received a report from the department of Public Prosecution concerning about 60%
    of the official reports of 1991 and 1992.

 8.  The figures derive from the Evaluation of the second phase of the manure and fertilizer policy
    which focuses on the manageability and enforceability of the manure and fertilizer legislation sent
    by the Minister of Agriculture, Nature Management and Fisheries also on behalf of his counterpart
    of VROM to the Second Chamber on 8 December 1993,
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230                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 9.  Other priority substances are CFCs, cadmium, and water.

10.  See 'Notitie Mest- en ammoniakbeleid derde fase' (Third phase of the manure and ammonic
    policy) (Parliamentary Documents I11993-1993, 19 822, no. 34) of 3 June 1993.

11.  See the previous notes and
    - 'Nota  evaluatie mestbeleid1 (Evaluation of  the manure and fertilizer policy)  (Parliamentary
    Documents I11989-1990, 21 502, nos. 1  and 2);
    - 'Notitie  mestbeleid tweede  fase' (Second phase of  the manure  and fertilizer  policy
    (Parliamentary Documents  I11989-1990, 21 502, no. 3);
    - Reports by the Netherlands' Audit Office (Parliamentary Documents I11990-1991, 21  955 nos
    1 and 2; Parliamentary Documents I11990-1991, 21 158, nos. 1 and 2; Parliamentary Document*
    II 1990-1991, 22 455, nos. 1 and 2) and the Minister of Agriculture, Nature Management anc
    Fisheries' reaction on them (Parliamentary Documents I11991-1992, 21 955, no. 3);
    - Research report by Oranjewoud engineers on compliance with the standards for animal manure
    and the recommendations by the 'Handhavingsoverleg LNV/VROM/Justitie1 on this matter.

12.  See mr A.G. Walsweer's advice to the Dutch  Agrarian Law Society as published  in 'Agrariscl
    Recht', August/September 1991.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
231
MONITORING INDUSTRIAL EMISSIONS: A SUCCESSFUL INSTRUMENT FOR
ENVIRONMENTAL ENFORCEMENT

=UTZ, MANFRED

State Ministry for Environment, Regional Planning and Agriculture in North Rhine Westfalia, D-4O190,
Dusseldorf, Germany
       SUMMARY

       Starting with an outline of the -legal prescriptions for the monitoring of industrial emissions in
Germany, details of the monitoring practice and the state of emission measurement technology are
given. Notwithstanding the fact that the set of emission standards and the monitoring procedures
oan be considered to be rounded off in a general perspective, ttiere are still some deficits in detail
and in the enforcement. Possible solutions to some of these problems are presented,


1      INTRODUCTION

       The high industrial and residential density in the Rhine-Ruhr region particularly at the beginning
of the 1960s resulted In a degree of regional air pollution which was directly perceivable for every
citizen. The situation then, with average annual levels of sulphur dioxide and dust pollution which
were practically a magnitude higher than today,; was approximately comparable with the poor quality
of air in the south of the former German Democratic Republic (GDR) just before reunification. Figure
1 and Rgure 1a show as examples the development of SOz, Suspended Paniculate, and lead levels
in ambient air from 1964 to today.
       This success in air conservation was influenced to a considerable extent by the development
of a comprehensive set of standards for emission protection, consisting among others of the Federal
Emission Control Act (BlmSchG), various ordinances belonging to the Federal Emission Control Act,
together with "Technical Instructions on Air Quality Control" as most important elements for controlling
     260
         64 85 «6 67 SS 69 70 71 72 73 74 75 76 77 7B 79 80 81 82 83 84 85 88 87 88 89 90 91 92
Figure 1.  Trend of sulfur dioxide concentration in Rhine-Ruhr area.
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232
               THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN"
     S.P.M.
200

180

160

140

120

100

 80

 60

 40

 20

  0
I  I  I  I  I  I
                 11111  ri  11111  in
                 11111111111111111111111111
                 11111111111111111111111111
                 i  ii  11111  ri  1111111  ri  1111111
                 88 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 8119 90 91 92
                  74 7i 76 77 78 79  80 81 82 83 84 85 86 87 88 89 90 91 92

 Figure la.  Trends of suspended parfculates (S.RM.) and lead concentration in ambient air in Rhine-Ruhr are

 air conservation. Today it can be said that this set of standards for classical emission protection cs
 be considered to be rounded off and complete.
        One basic element of the regulations on air quality control consists of the emission limit value
 for industrial plants, based on the principle of prevention, as contained in the "Technical Instructor
 on Air Quality Control" (re-enactment dated 1986),  in the  13th ordinance for targe-scale furnace
 (1983), and in the 17th ordinance for refuse incineration plants (1990). The emission limit levels ai
 intended not only to safeguard from harmful effects on the environment in the catchment area of th
 industrial plant but also, according to the principle of prevention, to reduce the emission of pollutan
 into the environment as far as possible, or at least as far as current state-of-the-art technology vii
 allow. For example, the "Technical Instructions on Air Quality Control" contains emission limit leve
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                       233
br approximately 35 inorganic, 150 organic, and 20 carcinogenic air pollutants; these levels have
hen substantiated state-of-the-art technology.
       The emission  control regulations have played a pioneering role on an international scale,
Darticularly when it comes to stipulating emission limits for preventative reasons, also for older plants
which need to be gradually adjusted to reach the requirements for a new plant. For example, the
Dtean Air Act in the United  States did not complete this  step until the beginning of this decade.
       But what is the situation in practice, when it comes to enforcing or, more precisely, monitoring
whether the emission limits are also observed under practical conditions? Limit values on paper alone
without any monitoring controls are of precious little use, as we have learned from the ecological
disaster in certain regions of the former Eastern bloc. Certain air quality criteria were considerably
stricter than their Western counterparts; however, there were no financial means available to enforce
Dr monitor these levels, or such activities were prevented for reasons of economic policy.
       The best means of controlling emission limit levels is by monitoring emission concentrations
at the source  or monitoring  waste gas mass 'flows.  This can be carried out most effectively by
continuous or at  least  consecutive (eg, daily) measurements, so that the behaviour in time of
discontinuous  production  processes (eg,  batch  operating modes) can  also be taken  into
Donsideration.
       Therefore, I illustrate here the requirements made by legislation and regulations of technical
monitoring methods, together with current  possibilities for technical monitoring. Subsequently I turn
to the question of deficits—Is the measurement of industrial emissions an effective instrument of
snvironmental enforcement? To conclude, I draw attention to certain progressive developments.


2      LEGISLATIVE REGULATIONS

       The requirements contained in the Administrative Regulation on Air Conservation for technical
monitoring of emission limits are indicated in Diagram 1.
       The regulation requirements are based here both on the principle of relativity—more extensive
requirements for larger mass flows and/or greater toxicity  of the emitted substance(s5—and, by means
of necessity, on the technical possibilities.
        continuous
        •eaaureients
        if eiisaion fluxes
        are exceed  for:

        -  duat
        -  S02.  CO,  HC1,
           Nflx,  HF.IC,
           C12,  H2S

        ex.:
        S02 flux  >iO kg/n
                              eiission  standards for
                              35    inorgan.  coip.
                              150  organ,  eoip.
                              23    carcinogenic coip.
                                         I
regular •easureients
(e.g. daily nans )
for
carcinogenic  and
highly  toxic coupounds.
if fixed scission fluxes
are  exeeded.

e.g.  benzene  >290 g/h
discontinuous
leasureients

otherwise
{ every three years,
4-6 half hour aver.)
Diagram 1.  Monitoring of emissions (TA Luft).
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234                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Continuous measurements are prescribed when levels are exceeded in certain mass flows
for SO2, NQx, CO, chlorine and fluorine  compounds,  H2S, and for the sum of organic gases anc
vapours. Consecutive  measurements  (eg, daily  methods) are required for  carcinogenic anc
particularly toxic substances (eg, benzene) and certain heavy metal compounds  (eg, cadmium anc
arsenic) in certain emission mass flows. Continuous measurements would actually be necessary here
too, but these are not technically possible at the moment, as it has not been possible to automate
the sampling and analyzing procedures; so, the stages of sampling, sample preparation (eg, digestior
to get heavy metals into  solution, desorption and  clean-up of organic compounds), and  analytic
determination have to be performed manually.
       In  all other cases, discontinuous  measurements are prescribed when the plant  start?
operations and on a recurring basis every 3 years (as a rule 4 to 6 individual measurements). The
17th Federal Emission Control Ordinance contains supplementary regulations for measuring 13 heav
metals and non-metallic elements and for random sample measurements of dioxins and furans (or
at least 3 days at  yearly intervals).
       The measured  results are referred to standard  conditions (Oa level, moisture, pressure
temperature)  in order to ensure that the emission limit levels are not met by simply diluting the waste
gases with fresh air while  the emission mass flows remain constant.
       The legislation also contains a series of requirements concerning quality assurance of th(
measured data. For example, wherever possible,  reference is made to standardized measuring
procedures which as a rule are specified  in VDI.  A further element of quality assurance for th<
measuring procedures is the stipulation that  the measuring instruments used for continuous emissioi
monitoring must have passed a special  suitability test according to prescribed test plans at certaii
test institutes (numbering  6 at present) and  are acknowledged to be suitable by the Federal Ministr
of the Environment.
       These regulations  are necessary to ensure that the plant operators are treated equally whei
it comes to technical monitoring.
       And finally, certain measuring tasks required as part of the Federal Emission Control  Act ma;
only be carried out by measuring institutes  that have been tested and certified for these measurini
tasks by the individual federal states. The reason for this is that when  it comes to measurements th<
influence of market forces tends generally to lower prices  rather  than improve the  quality of tru
measurements, as the quality cannot be assessed  on the basis of the result but only by an expei
while carrying out the measurements. However, more complicated quality assurance, eg, meticulou
calibration or measuring procedures, makes the measurements more expensive without resulting ii
immediate advantages for the plant operator.
        Quality assurance also includes calibration of continuously operating measuring instrument
on the plant operator's premises by certified measuring institutes,  together with annual  functio
controls which are required in addition to the function controls to be performed by the plant operato
 3     STATE OF EMISSION MEASUREMENT TECHNOLOGY: CURRENT DEFICITS

       What is the current  state of emission measurement technology? Can  the very detailec
 far-reaching legislative requirements be fulfilled?
       Table 1 summarizes the current measuring possibilities for continuous emission monitorin
 together with  the measuring principles. In addition, the table contains the number of continuou
 emission measuring instruments installed in North Rhine Westfalia in order to give an impression c
 the scope involved in continuous emission  monitoring for just one federal state.
       A rough  comparison  of Table 1 with  the  statutory requirements could  lead to the initii
 presumption  that the  requirements for continuous measurements are completely covered  b
 state-of-the-art measuring technology. However, this superficial impression only arises when furthf
 important boundary conditions, such as the detection limits of the measuring procedures and the
 suitability for certain plant types, are not taken into consideration.  For certain components and use;
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
235
Table 1.  Measuring Procedures for Continuous Emission Monitoring of Air Pollutants
                                                     No. of            No. of Measuring '
                                                     Suitability Tested   Instruments Used in
Component
Dust (smoke density)
3ust (concentration)
5oot number
502
Vl0x
:o
Hydrocarbons
3aseous chlorine
:ompounds (HC!)
3aseous fluorine
;ompounds
Dther
Measuring Principle Instruments Types North Rhine Westfalla
Waste gas clouding
Radiation absorption (photometer)
scattered light
Scattered light
IR, UV absorption, electrochemical
Chemiluminiscence, IR, UV
absorption
IR absorption
Rame ionkation
Electrochemical IR absorption
Electrochemical

3
7
2
15
14
12
8
5
1

908
622

376
376
456
70
60
48
253

:he stricter emission limit values in the "Technical Instructions on Air Quality Control" and the 17th
-ederal  Emission Control Ordinance  have resulted in problems with insufficient  detection limits,
Darticularly under the frequently adverse measuring conditions in industrial plants. In addition, as a
tile emission measurements produce a complex waste gas matrix with high levels of water vapour
and some chemically aggressive interfering substances frequently present in higher concentrations
:han the components being measured. This waste gas matrix and the interfering influences differ from
Dlant to plant, particularly where different kinds of industrial plants are concerned. An instrument which
nas been certified as suitable for gas furnace plants cannot be used without further ado  for refuse
ncineration plant
       Table 2 lakes the mentioned boundary conditions into consideration and provides an overview
Df the currently existing deficits in measuring technology for continuous emission monitoring according
:o the requirements of the "Technical Instructions on Air Quality Control".
       There are also considerable  technical  problems  in discontinuous measurements and  in
consecutive measurements for carcinogenic and particularly toxic substances. The reason for these
Droblems lies mainly in the scope of the approximately 120 single organic components in Appendix
E of the "Technical  Instructions on  Air Quality  Control". Figure 2 refers to the single organic
components according to 3.1.7 and the 15 gaseous carcinogenic pollutants according to 2.3 of the
"Technical Instructions on Air Quality Control" and indicates the relations between components for
.which tested measuring procedures are available in the form of VDI directives  and those  pollutants
which currently cannot be measured. Accordingly, there are only tested  measuring procedures for
less than 15% of the substances named in Appendix  E and for approximately one third of the
carcinogenic gaseous substances.
*      POSSIBLE IMPROVEMENTS: PERSPECTIVES

       To summarize, it can be said that both legislation in the field of air conservation and measuring
techniques for controlling emissions have reached an advanced  state which has played a decisive
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236
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Table 2.  Measuring Deficits and Problems in Continuous Monitoring of Emission Limit Values According to
         the Technical Instructions on Air Quality Control (TAL)
TAL Number
3.3,1.4.1
3.3.1,5.1
3.3.2.4.1
Plant Type
Combustion engines
Gas turbines
Plants for baking bauxite or
Component/Problem
Dust (particularly soot)
Dust (soot number)
(Ruorine compounds: measuring range)
                chromite bricks

3.3.2.8.1         Production of glass, fibreglass

3.3.2.10.1        Firing ceramic products

3.3.2.11.1        Melting mineral substances

3.3,4.1          Aluminium smelting plants

3.3.4.1d.1        Chlorine production

3.3.3.9.1         Galvaniidng plants

3,3.21.1         Production of lead batteries

3.3.4.1 a.2        Production of S02, SO3, H2S04
3.3.4.1 b.1        Production of Al
3.3.6.3.1         Production of wood fibre boards,
                wood chipboards

3.3.7.24.1        Refining sugar
3.3.8.3.1         Recovery from solid substances by
                burning (see also 17fri Federal
                Emission  Protection Ordinance)
                   SO2, problems with H2SO4, condensing particles
                   when preparing gas for measurements

                   SO2, problems with H2S04, condensing particles
                   when preparing gas for measurements

                   S02, problems with H2SO4, condensing particles
                   when preparing gas for measurements

                   Chlorine

                   Chlorine

                   HCI, separating particles containing chlorine from
                   HCI gas

                   Sulfuric acid

                   SOg

                   HFj measuring range

                   Dust (resin, ex-risk)


                   Dust (waste gas oversaturated with water)

                   HF, measuring range
                   HCL, measuring range
 role in the clear reduction in industrial emissions of major air pollutants in the last decade. In thi
 way, emission measurements have thus become a valuable instrument in enforcing air conservatio
 regulations. However, there are  still  deficits in the  measuring procedures and  in. impiementatio
 thereof, Countermeasures have already been introduced for some of these deficits  in order to improv
 the instrument of emission monitoring even further:
        • The inspectorates for  air pollution control in North Rhine Westfalia have set up
          measuring  and  testing services which  carry  out ad  hoc  random sample
          measurements of major air pollutants in industrial plants. In addition to improved
          clarification of complaints and incidents,  this improves the inadequate degree to
          which  seldom  random sample measurements represent the true state  of  the
          emissions.

        Research and development projects commissioned by MURL have simplified tie samplin
 procedures even for dioxins, furans, PCBs and PAHs to such an extent that in the future thes
 components can also be controlled by means of random samples carried out by  the measuring an
 testing services of the inspectorates.  For example, in some cases control measurements can del©
 dioxin emissions in certain industrial plants where they were previously not anticipated; thus, measure
 to reduce these emissions can be introduced.
        • Based on  pilot tests in Lower Saxony, North Rhine Westfalia and Lower Saxony
          have started to establish widespread, remote emission control facilities (EPO), The
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                   237
       a)     Measurements of single organic
              components according to 3.1.7 TAL
                                   guide!.
guide!, in
  prep.
no guidei.
        b)    Measurements of organic carcinogenic
              substances according to 2.3 TAL
                                   guidei.
guidei. in
   prep.
no guidei.
 Figure 2.  Share of tested emission measuring procedures in the form of VDI guidelines In the measuring
          tasks prescribed by the Technical Instructions on Air Quality Control (TAL).

          continuous measuring instruments installed with  plant operators are linked by
          means of Intermediate computers and the telephone network to the computers in
          the inspectorates so that current data concerning measurements made by the
          emission measuring instruments can be transferred at any time. The inspectorate
          can obtain an overview of the current emission  situation at  any time,  so that
          time-consuming research in the  event of complaints is no longer necessary. In
          addition, the EFU-system also gives plant operators the possibility of optimizing
          operation of their plant with regard to the lowest possible pollutant emissions, as
          measuring  and auxiliary parameters  are constantly displayed in the measuring
          control station. Over and above  controlling emission limit values, monitoring by
          measurements can therefore also contribute directly to reducing emissions.
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238                '         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         Basically, this repeats a development which was already introduced to Japan at the
         beginning of the 1980s, For example,  back in 1983  in Japan,  the  industrial
         emissions at 45 locations were telemetrically monitored in 23 prefectures and 10
         major cities.  However, there are technical limits  to using this instrument—at the
         moment, only continuously measurable pollutants can be monitored (see Table 1),
         Finally,  further development  of statutory  regulations  to be  met by  emission
         monitoring,  particularly  the increasingly  Important EC  regulations, must take
         account of enforcement requirements and the limited resources of the  enforcing
         authorities. Regulations which may not be perfect but are  capable  of  being
         enforced  and controlled throughout the  EC must be given preference over
         regulations which are perfect on paper only, particularly with regard to  efficiency
         and to equality in the European domestic market.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        239


ENFORCEMENT OF THE "POLLUTION OF SURFACE WATER ACT' IN THE
NETHERLANDS,  1970 to 1994

PLATE, FLOWS

Director of Law Division Rijkswaterstaat, Ministry of Transport, Public Works and Water Management,
RO.Box 20906,2500 EX The Hague, Netherlands


       SUMMARY

       A brief view of the history of the Pollution of Surface Water Act is given. Thereafter the
beginning of the enforcement effort is mentioned, to be followed by an explanation of the first formal
enforcement policy in the eighties. In the early nineties this policy was tightened up, but the aim to
end all illegal discharges appeared very difficult. Therefore so called general rules were introduced
as a new instrument. Recently a  broader approach has been developed. Instead of  more or less
isolated efforts to enforce the law the complete regulatory chain is now under consideration,


1      INTRODUCTION

       The  Pollution of Surface Water Act came into force in 1970. It was the  first modem
environmental act that later on was to be followed by other acts e.g. for the protection of air and soil.
Before 1970 some local or regional regulations' had provided some protection against water-pollution
some of which dating back as far as the 17th century. However,  these were no longer considered
adequate. The new act forbade the discharge,of all polluting substances in surface water by means
of "a work" without a written license. For the local and regional waters the so called "waterboards"
(special government authorities  in  charge  of water management  and flood  protection) became
responsible for the execution of the act. Central government was responsible for the  main waters,
i.e. the big rivers Rhine, Meuse and Scheldt, the coastal waters and the most important canals.
       Apart from the prohibition  of emissions without a proper license the act introduced  levies on
discharges according to the principle that "the polluter pays". Both industry and households had to
pay those levies. The income was used to finance anti-pollution measures such as the building of
waste water purification installations.
       Thanks to the new legislation and in particular the nationwide building programme of
purification installations good progress was made during the first decade after the introduction of the
act. In particular the emission of oxygen-consuming substances was reduced considerably. Also
progress was made with respect  to heavy metals. Organic micro-pollutants and nutrients appeared
more difficult.
 2     EARLY ENFORCEMENT EFFORTS

       Around 1980 some criminal pollution scandals got much nationwide attention. Suddenly every
 politician and administrator in the country realized that prohibition and licensing alone could not stop
 illegal discharges and that enforcement was the indispensable crowning piece of any effective policy.
 So both money and manpower became available for inspection and, if necessary, enforcement.
       In principle the  law of the Netherlands provides for  three different ways to enforce
 environmental law.  In the  first place the administrative law gives some instruments that the authority
 in charge can use. For instance it can order the ending of the  illegal discharge and, if this order is
 not obeyed within a reasonal period of time, it can end  the illegal  activity itself at the expense of the
 offender. Another, more recent,  possibility is the order that if the illegal activity is not ended within a
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240                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
reasonable period of time the offender will have to pay a certain amount of money for each day that
it takes longer. So far the law of the Netherlands does not provide for administrative fines in the case
of illegal pollution.
       The second  possibility is the use of civil law. The government authority can ask for a court
order that requires the ending of the illegal activity in conjunction with a penal sum to be paid for
each day that this court order is ignored.
       Finally the judicial authorities can be informed and ttie offense be brought before a criminal
court. As a rule this way is used for the more serious cases. Both financial penalties and imprisonment
are possible punishments for environmental crimes.
       It should be  mentioned that the  authorities in charge of water management have their own
specialized criminal  investigators. Besides the regular police forces spend quite some time on the
investigation of environmental crimes. Efforts are made to establish effective co-operation between
both kinds of investigators. So far the results vary.
3     ENFORCEMENT EQUALS ACTION

       In the early eighties the enforcement of the Pollution of Surface Water Act gradually came into
effect. Nevertheless numerous illegal discharges were still being tolerated and time and again the
national parliament urged for more effective policies. In 1987 the first Enforcement Plan for the Pollution
of Surface Water Act was made. Manpower was increased and the organization of the inspection-force
of Rijkswaterstaat (government  agency in charge of the management of the main waters) was
improved. Also the waterboards  enlarged their enforcement capacity.
       In 1989 a firm target was set by both the minister of the Environment and the minister of
Water management to end all illegal discharges before 1995. This implied that the connivance of
offenses should end as soon as possible. Discharges without a proper license were furthermore out
of the question except for a few very special cases. From that time each finding of an illegal emission
should be followed by a proper reaction from the government to stop the offense. Pressure also
came from environments^ protectionist groups who many times brought about court orders that forced
government into action against offenders.
       In this way  much progress was made, but in spite of a considerable improvement the
standards of the basic quality for surface water had not been achieved by the end of the eighties. A
new approach became necessary.
 4     GENERAL RULES

       Since 1989 much effort was spent to end all illegal discharges. This meant either ending of
 the discharge or licensing.  Under law of the  Netherlands, however,  this is a difficult and often
 time-consuming task. Legal procedures are long and complicated and both the discharging industries
 and the environmentalists have many possibilities  to claim and pursue their supposed rights. The
 authorities in charge of licensing therefore had much problems to adhere to the time-schedule as
 set by both ministers. In some branches of industry,  e.g. greenhouse agriculture (responsible for a
 great deal of the Netherlands export!), the number of emissions was so high that licensing appeared
 simply impracticable,
       Still connivance had to stop before 1995,  because both parliament and the State Council
 (high court for administrative      had announced that they would no longer accept it. Court orders
 to issue licenses would mean considerable face-loosing for the government and also constitute a
 major political problem for the ministers in charge.
       In order to avoid such a painful situation a  new instrument was introduced in the legislation.
 Instead of issuing thousands of licenses a set of general rules was established for a number  ol
 activities as different as dental practice, householding in unpopulated areas, yacht harbours, coating
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         241


)f metal objects and greenhouse agriculture. Each set of rules pertains to a particular activity. It can
je considered as a standardized license for the emissions that are the result of that type of activity,
f the discharge remains within the limits of these general rules a license will no longer be required,
srovided the discharge is properly announced.
       It is clear  that this will save much licensing effort for the authorities in charge of water
nanagement. The number of inspections and enforcement activities will remain the same, but as a
•esult of the standardization also in this field efficiency will be  improved. Although the general rules
are not yet effective it is hoped that from 1995 on they will relieve the task of licensing and enforcement
:onsiderably,


S      THE PHILOSOPHY OF THE REGULATION CHAIN

       In 1992 Rijkswaterstaat (government agency In charge of the management of the main waters)
svaluated their activities to enforce the Pollution of Surface Water Act. The conclusion was "Not more,
out better". By this was meant that manpower was not the problem, but that the available manpower
Dould and therefore should be used more effective. To tills end it was emphasized that enforcement
is no isolated activity, but that instead it is part of a complete regulation chain. This chain has the
following elements:
       » Policy making,
       • Legislation and regulation,
       * Setting of standards,
       • Licensing,
       * Execution,
       • Enforcement.

       All parts of the chain should be in line  with the others. For instance; Policy planning should
take Into account that the execution of the policy may depend on the possibilities for adequate
legislation. Policy goals should be set in such a way that they can be translated into realistic standards.
Legislation should be the basis for proper licensing.  Licenses should be granted in such form that
enforcement in accordance with law becomes practicable. Finally enforcement results may give rise
to adaptation of policies.  In other words, each element  of the chain  depends on the others. Only
when ail are in accordance with the others satisfactory results may be obtained. If one element falls,
the whole chain fails and all efforts will be fruitless. Enforcement is often the  last  and therefore
somewhat neglected part of the chain, but without an effective and tailor-made enforcement no policy
can be successful.
       The philosophy of the regulation chain also implies that it is important that wherever possible
the responsibility  for all elements of the  chain should be under one roof.  Integrated  responsibility
improves the harmony between all elements  of  the chain  and  provides for very important
cross-fertilisation and evaluation of policies. Moreover it can avoid the commitment to policies before
their practicability has even been considered.
6      CONCLUSION

       So far thes enforcement of the Pollution of Surface Water Act in the Netherlands has been a
learning process. Also in this field the philosopher's stone has not yet been found and it is unlikely
that this will happen soon. New ways will have to be found all the  time. Nevertheless some
encouraging results have been made. There are signs that illegal discharges will be under control
within a few years. Therefore pollution from diffuse sources (air, groundwater) soon will be the major
problem.
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242                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        243


EXPERIENCES IN ENVIRONMENTAL ENFORCEMENT IN THE UNITED KINGDOM

CARLYLE, STEFAN

Head, Environmental Assessment and Planning Office, Her Majesty's Inspectorate of Pollution
(HMIP), Romney House, 43 Marsham Street, London SW1P 3PX United Kingdom


       SUMMARY

       This paper examines ways in which permitting organisations in a number of countries operate
in circumstances! where environmental quality standards are not complied with, or non-compliance
appears likely in the future, and there are multiple emission sources. The study is based on a review
carried out for HMIP of mechanisms operating in the Netherlands,  France, Denmark, the United
Kingdom, and the United States. While not detailed here, the presentation will include reference to a
specific case in the South East of England involving HMIR


1      ENVIRONMENTAL QUALITY STANDARDS

       There hats been an increasing trend  in recent years towards setting Environmental Quality
Standards for air, water and  land.  A typical  example is the European Union's introduction of such
standards for nitrogen  dioxide  (1). This in turn  has led to a need to  ascertain whether or not such
EQSs are being breached and for special control strategies to be introduced for multiple sources.
These have met with varying degrees of success. Steps to ensure that environmental quality standards
(EQSs) are not exceeded may be applied at international, national, regional or local levels.  It was
for this reason that HMIP commissioned ERM Consultants to carry out a review of different approaches
to regulating multiple emission sources. This paper summarises the findings (2), while drawing on
recent work carried out by the Inspectorate in. this area.


2     INTERNATIONAL CONTROLS

       Proposals at the international (global): level to reduce  COz emissions aim  to share out the
burdens  of  emissions reductions. A similar approach  is well established within the European
Community for the reduction of S02 emissions from large combustion plants. As part of the United
Kingdom's  programme to reduce SO2 emissions, both the national power generators have been
allocated company 'bubbles', allowing them to trade-off higher emissions at one station with lower
emissions from others.                    :


3     REGIONAL APPROACHES

       At the regional  level, the permitting of multiple emission sources has proved difficult in some
EU Member States, for example, when a new facility applies for  a permit to operate in an  industrialised
area where any extra  emission might result in EQSs  being approached or exceeded. One  option
would be to require the new facility to ensure that releases do not result in an increase in ambient
levels of the particular pollutant(s). This may mean that the conditions imposed on the new  facility
are more stringent than those applying to the  existing facilities. A second option might be to introduce
a programme for emissions reduction for all  facilities in the area.
       Approaches to ensuring compliance with environmental quality standards in  industrialised
regions include:
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244                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         developing emissions reductions programmes for existing facilities by negotiating
         voluntary agreements with the facility operators;
         tradeable emissions permits;
         imposing emission limits on new facilities which are  more stringent than those set
         in areas where ambient levels are well below EQSs.
         establishing criteria for setting emission limits for new facilities which take account
         of ambient levels of pollutants in relation to environmental quality standards,
         Voluntary agreements between authorities and facility operators are seen as part of
         the standard permitting process. The approach in several countries is to persuade
         facility operators to agree to tighter emissions standards although in some cases,
         reduction can be  imposed  by the authorities  irrespective  of agreements being
         reached.
4      PERMITS AND CHARGES

       Release limits and/or pollution taxes may be imposed on individual operators to ensure thai
EQSs are not exceeded. In Europe, individual facilities are permitted and permits are not transferable.
The US is undertaking a federal programme using tradeable emission permits to reduce emissions
from power stations. In addition, the individual states in the US operate transferable permit systems
for the implementation of the federal Clean Air Act. The number of permits issued is calculated tc
ensure that EQSs are not exceeded. Facilities may sell their excess permit 'capacity' to other plants
which require increased emission capacity whilst net emissions remain within the quality 'envelope
or'bubble'.                     .                                                   .
       Waste water charges are imposed in a number of European countries. In the Netherlands foi
example, waste water charges were introduced by the Pollution of Surface Waters Act 1970,  and ir
common with other European countries, tiie aim of the charges was to raise revenue for watei
treatment,  rattier than to discourage dischargers. The highest charges, however, appeared to have
the effect of reducing discharges.
 5     APPROACHES ADOPTED IN EUROPE

       In the European Union, approaches to ensure that ambient levels of pollutants do not exceec
 EQSs have been adopted in several countries at a regional level.
       In the Netherlands, voluntary agreements have been reached for reducing emissions to air ir
 certain  industrialised regions, such  as Rotterdam. Voluntarily agreed emissions reductions are
 formalised by amending emissions limits in permits. Formalised criteria are applied in some Provinces
 for setting limits for new facilities based on existing ambient levels of pollutants.
       Emissions reductions achieved in Denmark and Ranee as a result of negotiations betweer
 the authorities and facility operators are written into permits and statutory orders respectively.
       Statutory water quality objectives planned for England and Wales will be established in relatior
 to the uses to which the water bodies are put.  Regional studies of air quality are carried out in areas
 where breaches of EQSs are likely, for  example nitrogen oxide in the  East Thames region (2). The
 results are used in authorising single sources. The statutory EQS was  not found to be in danger o
 being breached. The relative contributions of existing industrial and mobile sources of nitrogen dioxidf
 were placed in context allowing a regional regulatory strategy to be devised.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         245
i      CONCLUSION

      Specific pollutants, such as nitrogen dioxide, can only be regulated with regional affects in
nind. A range of alternative options for tackling pollution on a regional scale are available. Approaches
liffer form country to country dependent on a number of factors, Including the regulatory framework,
ne scale of the problem, the state of knowledge about the environment and social and political
actors. Collaboration at an international level  is recommended to identify robust mechanisms for
egulating industrial releases on a regional scale.
      REFERENCES

 . Council Directive 85/203/EEC, Air Quality for Nitrogen Dioxide.

>, ERM Consultants, Regional Approaches to Multiple Emission Sources, ERM, 1994.

!. HMIR An Assessment of the Effects of Industrial Releases in the East Thames Corridor, HMSO,
  1993.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        247


•NVIRONMENTAL AGONY: MY EXPERIENCE AS AN ARGENTINIAN JUDGE

LERMANOS, DANIEL HUGO

udge, Juzgado de Primera Instancia en to Criminal y Correcional No. 10 del Departamento Judicial
!e Lomas de Zamora, Talcahuano 278, Banfield - Provincia de Buenos Aires (1828), Argentina


      SUMMARY

      This presentation Intends to demonstrate that the agony of environment in Argentina is the
iroduct of impunity derived from the misapplication of laws in force by some functionaries who were
T charge of environmental protection.
      It describes the environmental policy enforced by the author as a penal judge in the Province
>f Buenos Aires, and how it was possible  to carry ft out through a judiciary system which lacked
iufficient technical elements  and economic support.
      Finally, it details the  jurisprudential advances that were made in favor of public health that
lelped Argentina's; society to become aware of the problem.


1      INTRODUCTION

      "Somebody must do it. Why me?"
      "Somebody must do it. Why not me?" asked Miguel de Unamuno. The work of a forerunner
s always rejected, he explained. It implies  too many risks, and even the possibility of being called
;razy. The fact is that being a forerunner is full of disadvantages. He is always followed by somebody
vho takes advantage of his  efforts and uses them to be the only one to benefit from them.
      I deliberately designed  an environmental policy for modifying environmental damage
iccepting the risk:! of entering an uncontrolled field full of high-voltage economic interests. This plan
vas inspired by the conviction that a judge must be committed only to the Constitution and to the
aw of his/her country, obedience to which is a must for all citizens (Article 16, N.C.).
      Art must rectify Nature, assured Victor Hugo. Today, Nature must be rectified by Law. The
svident  environmental agony,  evidenced in most populated  areas  in air, water  and ground
xjntamination, and verified in food and medicine alteration, needs a new conception of judicial action.
Xn Argentinian judge in the twentieth century must reveal these truths, investigate their causes, prevent
heir effects and spread these fundamental certitudes as a contribution to collective education. I
started this work  at the end of 1987 when I was appointed to head the  then-named Court of
Corrections No. 2 of the Judicial Department of Lomas de Zamora, Province of Buenos Aires.


!     PROBLEMS WfTH ENFORCING ENVIRONMENTAL LAWS

      Law is a project of social harmony that does not work automatically.  It is  necessary to have
action by the administrative officer demanding the functioning of the Law (when it is a matter of this
area), and, lately, judicial action, as a suppressive body for punishing the offender and also the
ndolent functionary who does not fulfill his/her public obligations and enables the transgression of
:he law.

2.1    Laws: Insufficient and unenforced

      Since 1921, Argentina's Penal Code contemplates, in an imperfect and insufficient way, some
Denal categories linked with  crimes which may, directly or indirectly, affect public health. But, in fact,
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248                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
they were unapplied laws, The project of social harmony outlined by the Law remained, obvious!^
unfinished; therefore, public health remained exposed to serious risks. The Law appeared to to
doubly damaged: a) by polluters and b) by those who should prevent pollution and regulate thosi
behaviours. It can be affirmed that a severe impunity existed in this matter.
       The dogmatic ideas of Law must, for tiieir correct application, be subject to the strength c
reality. Reality in its exact magnitude stands in essential contradiction with the abstract text of juridi<
rule that orders but does not govern.  The juridic idealism that ruled in those days satisfied itsel'
Autistic. Trapped in its own dealings. Unable to create a modification of the tangible world. It woul<
be difficult to find clearer evidence of  this  autism in other fields. Today, a ruined environment is ii
front of everybody's eyes. Even a schoolchild can notice pollution and conclude that it is the wor
of daily environmental delinquency tolerated by those who ought to prevent it.

2.2    Limited resources

       Now, to bring a suit based on  environmental research demands the acquisition of factors
material and human - that are difficult  to find. There is no specified justice in Argentina, and in th
Law University the specific learning is almost zero. Also, the economic sources of judicial power ar
absolutely insufficient. In the Province of Buenos Aires it depends economically on the governmen
and the few funds received are designated for paying operation expenses and low salaries. There i
no incorporation of technology or labs. There is no investment in academic improvement.

2.3    Protecting the environment and industry

       But the problem does not end with these difficulties,  The environment is a social good. So i
industry. It was necessary not to use merely suppressive schemes limited to factory closings, becaus
this would generate economic chaos and a labor supply crisis. Environmental fundamentalism woul
be an answer just as authoritarian as that of industrial fundamentalism, which sought developmer
witiout caring about the environment.  The just Aristotelian middle path could try to make it so th<'
neither environment nor industry would turn into ashes.
       Yet, the trial mechanism to be developed should be adjusted to an unexplored model tN
would respect the integrity of both great juridic goods.  Unlike other crimes, in which there is only or
victim and one victimizer, in environmental infringements there is a plurality of victims and a pluralii
of victimizers. Many times the former and the latter are unknown or impossible to identify, This set <
biological, chemical, economic, labor and sociological complexities could not be resolved with mei
willingness. As at a forge, I needed to patiently form technical teams, and design a trial procedui
system that would adapt delicately to the  needed equilibrium without losing juridical rigor. In brie
have excellence at the scientific level  and perform preventath/e judicial actions that would tend I
prevent community damage.
 3     HISTORICAL RELUCTANCE TO SANCTION INDUSTRY

       Since the Napoleonic Code, in the civil area, and since the appearance of liberal criminal la*
 and long before the environmental problem was discussed for the first time in a court, there w?
 reticence to sanction factories causing victims by their activities. We can cite some cases such i
 "Heaven vs. Fender" (England, 1883) where the plaintiff - a ship painter who suffered injuries aft
 the ropes that held  his scaffold ripped - received compensation  from the dock owner,  but it we
 remarked that the victim, who used to work there, was simply invited to do the work. This finding hs
 the obvious intention of dampening the businessman's responsibility.
       A similar case, in regard to how slippery the power of judges can be, was "Winterbottom v
 Wright" (England 1842!) where a coachman who became  lame because of a break caused by
 hidden defect of  the  car, was disqualified from  receiving any compensation  arguing that tr
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         249
acceptance of his claim would lead to "absurd and unrighteous consequences," Examples like these
xsuld be invoked in large numbers. Starting from these precedents, it was very logical to assume
:hat sanctions against infractors of environmental protection laws would not be applied.
I      EDUCATION: A PROTECTIVE TOOL

       But social life is only possible  with mutual respect and practice of justice. This sentence
oelongs to Protagoras. For how many centuries has man been asking for justicel
       In that era of sofists they were already saying that the passage from  "me" to  "we" is
accomplished through education. Most people suffering from pollution are the most uneducated
oeople. It is the ignorance of those polluted, not the ignorance of the polluter, that  causes pollution.
Therefore, besides compiling registered excesses, it becomes necessary to reach society, to make
justice as public and transparent as possible. This need, in countries like mine where there is no jury
judgement - although that is what the Constitution  of 1853 orders - turns the  judge's labor into an
invisible work, and, as Montesquieu would say,  invisible justice - because of the lack of a jury - ends
up being nonexistent. It Is not a coincidence that less that 20% of the Argentinian People trust in
Justice.

4.1     Educating the Argentinian people

       I planned an approach that contained, principally, the following points:
       * Protection of animal species in danger of extinction,
       • Supervision of food hygiene,
       • Supervision of medicines and expired materials,
       • Vigilance over sanitary aspects in hospitals,
       » Tracking the final disposal of solid, semi-solid and gassy wastes,
       Aecompaiied in  the beginning by  a few little radio broadcasts and  local newspapers, I
gradually drew the attention of citizens, and, fundamentally, I gained the confidence of many people
who lived in polluted areas. My position as  regards the press caused some reactions in the Forum,
But I did not stop. I was sure that the  diffusion of this approach would cause a multiplier  effect in
the environmental education of my people.
       I used to receive threatening phone calls. My house was shot. The car I drove was intercepted
by villains. The quick reply of police protection melted the risk.  Public opinion answered favorably
time and time again. People in the street used to support me, and  journalists from different media
made common cause with me. That fortified me. And in this way, slowly but without stopping, 1 kept
on working in the direction I had chosen. The opinion rendered on each trial used to cause something
like an impact; but the stronger, largest impact  was caused by the inquiry itself. That it was done. To
talk about environment is not as attractive as practicing environment.
                                           !
4,2    Creating an environmental workforce

       I  began selecting the most competent people from  different  state bodies. The police
department of the Province of Buenos Aires created the Ecological Police. The scientists (all of them
ad honorem) and policemen in the group were all first rate and trained for environmental work.
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250                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
S      DISCOVERY OF ENVIRONMENTAL VIOLATIONS

       The first actions, sought to verify the bromotological condition of different kinds of food. The
investigation that first became public knowledge was the contamination of mineral water. It was proven
that 40% of the mineral water in the market was contaminated with bacteria or chemicals. Then, ii
was found that 50% of the mozzarella cheese was contaminated too. TV. cameras and newspapers
showed for weeks thousands of kilos of this product in a complete condition of putrefaction. The
product was being sold contaminated by worms, flies, and other pollutants. In less than 60 days, we
confiscated 550,000 kg of this cheese. The population was scared. Pizza shops were empty. Some
of them closed forever, because of the poor sales.
       Then there carne numerous investigations that exposed the sale of adulterated milk, sid
chickens, contaminated  crackers, vanillas made with rotten eggs, careless breadmakers, factories
that made stuffings with rotten meat, fruit juices made for children that contained no fruit (with artificia
flavors and a coloring from a petroleum-based derivative), soft drinks made with contaminated water
farms that slaughtered, without any control, animals with tuberculosis or aphta. And we can continue
       Those  investigations caused commotion in  my country. We know that in underdevelopec
countries, protein-energetic malnourishment in the children is one of the most critical problems. Bu
in Argentina we are not talking about malnourishment because of a scarcity of food, but because o
the poor quality of food. And we can say that in some social sectors hunger also exists.
       How can we attain a developed world from this picture of a malnourished people? The firs
sign of poor food consumption is growth retardation. "Kwashiorkor," "Marasmus" and other disease,1
derived from hunger are also promoted by inadequate alimentation. Food poisoning can be  deadly
200  people died in Argentina in the last  2  years because of food poisoning. This  number, whicl
seems large, is deceptive. The lack of determining causes of deaths does not allow us to know th<
real number of victims, which must be in the thousands.
       The caste of Argentinian industry has always been characterized by the planning of its activitie:
without considering the generated wastes. With very few exceptions, the  gas, liquid, solid  an<
semi-solid wastes were excreted into the environment without any treatment at all. The effects of thi:
attitude were devastating  for the metropolitan and  suburban areas. Air,  ground and subterraneai
water  are now in actual danger. Pollution has  claimed its first fatal victims  in my  country. As ai
example, 50% of the children with gastric or intestinal diseases in the greater Buenos Aires area an
victims of contaminated drinking water.
 6     ACTIONS TAKEN TO ELIMINATE HEALTH RISKS

       We outlined, with an expert team coordinated by the court, investigative ways for detectini
 factories that were affecting the river basins of "Riachuelo," 'Arroyo del Rey" and "Arroyo Ortega." f
 the same time, we identified clandestine dump trucks that were littering the urban waste dispose
 areas. Some of those \vaste heaps had 90,000 rodents per hectare (2.17 acres), and had the potent!*
 capability of transmitting more than 20 diseases. We closed hundreds of factories of different sizes
 even international ones.
       Several suits, detentions, and confiscation of trucks that had been used in  illegal dumpin
 were the results of three years of struggle against environmental enemies. The environment was i
 an emergency status. At some spots in the above mentioned rivers, the drinking  water quality wa
 only 0.3 out of an ideal mark of 10.
       Juridical work tried to cover other never-investigated aspects:
       •  Illegal work in hospitals,
       •  Poor use of expired material destined for medical use,
       •  Intervention in medical centers managed by people without a license or diploma,
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          25}
       • Abnomralities in the manufacture of medicine (under-doses, pollution, and clandestine
         factories),
       • Neglect of old people in asylums.

       In brief, I decided to promote a  policy that would protect the juridical good touted  by the
"Penal Code" in its 200th and 208th articles:  public health. That was the axis of an active approach
where ecology was defined in terms of species, not genus. Environmental protection was derived
directly from wanting to protect human life.
       As a matter of jurisprudential progress in favor of people suffering from pollution, I can say
that the "court of Alzada" has accepted  new criteria of adjetive and substantive law that I put forth
in my opinions:
       • The possibility  of  using  action suits established by  civil law  in criminal trials,
         arguing that, because of what is  mandated by the  16th and 18th articles of the
         Penal Code, their use in this field is legitimate. This point opened up the powers of
        . the criminal judge and  allowed  him  to act ex-oficio in public action crimes,
         relegating to secondary status  the discussion over scattered interests. Transferring
         these responsibilities to penal justice via a simple denunciation by anybody, injured
         or not, reduced the frequency  of civil suits and of those seeking the protection of
         the court.
       • Crimes would remain unattributable if pollution continues.
       • The indictability of successive  heads of polluting industries. We can then prevent
         the disclaimer of legal responsibility of each polluting company.
       • The extension of the jurfsdiction of the judge beyond  his/her territory. We can, then,
         facilitate investigations and prevent contradictory statements.
       • The indictment, in all pollution cases, of the heads of  the polluting companies.


7      CONCLUSION

       Today, environmental protection is a part of Argentine legal culture. It is incorporated into the
collective conscience. No leader in any sector in Argentina can publicly support an anti-environmental
position. This is the most important thing. We did de-legitimate environmental pollution. As Camus
would say, worse than homicide is the  legitimation of homicide. There may be future  polluters in
Argentina, but they will no longer be legitimated. They know that they have to operate in a clandestine
manner. As criminals. Not as honest and proud businesspeople. If I have made some contribution
to my country, it was in helping to de-ligitimate pollution.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         253


DEFORESTATION IN PROTECTED AREAS: CASE STUDY OF LOS HAITISES
NATIONAL PARK

MARIZAN, GRANDERSIO R.

National Parks Director, Direcci6n Nacional de Parques, Av. Independencia, Santo Domingo,
Dominican Republic


       SUMMARY

       Los Haitises national park is one of the main natural areas considered in the conservation
policies of the Naitional Parks Directorship and has also represented a national challenge in the search
for combined solutions in order to preserve it from social, economic, and environmental conflicts that
have surrounded it for over two decades.
       The area enclosed by this national park, its limits and management category have changed
over the p§st 24 years. From 1968 to 1976 it had an area of 20,800 ha and was classified as a forest
reserve.  After 1976 the same area, still much smaller than the Los Haitises karstic formation, was
designated a national  park, acquiring the consequent  management specificities.  In 1993 the
protected area was enlarged by a presidential decree to 1,600 km2.  The worsening of the impacts
in the park in the last 10 years, its social and economic origin, its isolation, and  its cultural and
biological significance forced the National Parks Directorship to take the necessary steps towards a
Management Plan elaboration.  Negotiations with different sponsoring organizations  yielded a
cooperative agreement between the Dominican Republic and  Spain  in order  to establish  new
administrative measures as well as specific conservation projects.


1      INTRODUCTION

       Los Haitises national park is located in the northwest region of the Dominican Republic in an
area exposed to the alisios winds with a high orographic rainfall (2,700 mm per year).  The average
wind speed ranges from 0.7 to 1.0 km/hour. The average days of rain in the year is the highest in
the country: 45% of the days in the year. The average temperature of Los Haitises ranges from 25.5
to 32.5°C, and the humidity from 70 to 75%.  there are no significant seasonal variations, although
between daytime! and nightime  there  exists an 8 to 10°C difference.
       From the hydrographic  point  of view, Los Haitises and its influence area  has two drainage
basins: Yuma, with an area of 5,495 km2, is more than 200 km long; and in Los Haitises, Sabana de
la Mar y Miches, the underground currents and streams that flow from the limestone floor of the karst,
form important aquifers that run to the bay and favour the growth of the mangroves in its coastal
area (98 km2).
       Geomorphologically speaking, its main territory consists of a limestone massive with a very
particular topography  and elevation, which give way  to numerous cave processes, constant
underground water flow, a very special coastal profile, and also great ecological fragility.
       The vegetation of Los  Haitises national park is one of its biggest natural assets.  In it has
been detected the highest biological diversity: index in plants  from the Dominican Republic as well
as  the Caribbean.  This has been reflected in the high endemism rates and an inventory which
comprises more than 700 vascular plants within the park.
       The plant  cover in  Los Haitises is formed by different plant associations that extend from
altitudes of 40 to 380 meters, composed of tropical rain forest (at sea level) and second-growth forest.
There can also be found some coastal rock associations like: rocky shore, key and cliff vegetation,
mangroves, and sea grasses.
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254                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Among the animal species present in the park's territory, many are important because of theii
endemism or endangered status,  such as  the  solenodon  (Solenodon paradoxus),  manatee
(Trichechus manatus), dominican parrot (Amazona ventralis), Ridgway's hawk (Buteo ridgwayi) anc
green turtle (Chelonia mydas).
2      CONFLICTS AND IMPACT

       The area of Los Haitises, because of its isolation and difficult access, had been an undisturbec
natural region until the 1940's,  The first agricultural and cattle-raising settlements appeared in the
1970's located in the surroundings of the protected area.
       These first settlements are a consequence of migratory processes, especially from the easterr
part of the country where the structure of land ownership made it hard to have access to it, and alsc
because of the isolation of the Los Haitises region.  Nevertheless, this small-scale subsistence
migration did not produce major environmental damages  until the 1980's.   At this time the
development and encouragement  of the growing  of yautia (a locally grown tuber)  for commercia
purposes originated a production system that commanded constant clearing of forest areas of the
park in order to keep & minimum productivity.
       It is estimated that the trasformation of the original vegetation by 1989 reached over 80% o
the park's territory, and that between 1984 and 1989 25% of the original vegetation had been lost.
       Thus, the National Parks Directorship, responsible for the conservation of protected areas anc
the farmers with commercial purposes  in Los Haitises (not the subsistence farmers) entered into i
conflict around the use of the park and its ecological transformation which demanded for its solvinc
a  deep knowledge of the processes involved. These processes comprise  economic and socia
problems as well as vary intricate institutions that far exceeded the domain of the National Park:
Direction.
3     MEASURES AND INSTITUTIONAL PROTECTION POLICIES IN LOS HAITISES

       For the past ten  years, the  National Parks  Directorship made use of the resources  anc
measures that from the legal and institutional standpoint were within its reach in order to stop the
impact levels and ensure this exceptional national park's protection, but with little effectiveness a
can be seen by the results.

3.1    The 1980's - Adoption of protection measures and education programs

       In the 1980's different protection measures were adopted, especially in education around th(
surrounding communities. Also some measures were taken for control and surveillance.
       The topography  of Los  Haitises, the  lack of surveillance  posts in the areas of majo
penetration, the scarce personnel and means to keep the required control were not enough to  hol<
back the pressure of the communities and the incentive to create yautfa production on a commercte
scale and exportation.
       In 1988 and 1989 with  the aid of the Spanish Agency for International Cooperation, a  rure
development project was elaborated that included production activities, courses in domestic anime
raising,  and implementation of high-yield crops in areas outside the park. This did not obtain thi
desired results due to the incentives the farmers received from long-cycle crops, which had exceller
market prices and  ensured demand.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         255
3.2     Management failures and response

       In 1990 the environmental deterioration of Los  Haitises showed some alarming signs of
activities totally incompatible with the park, such as cattle ranching within its boundaries and crops
n an industrial scale of yautfa, cocoa bean, com, beans, and coffee. More than 200 families were
sstablished inside the  park and more than 300 in its surroundings but still profiting from the park's
ands for agriculture and cattle ranching,
       The surveillance  mechanisms from  the Forest Directorship had shown their inefficacy in
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256                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       For the regeneration of the vegetation cover in Los Haitises, a reforestation plan in which
species from other areas would be introduced was rejected in order to maintan its natural biological
diversity.  Due to our experience in  other disturbed areas, we decided that the vegetation could
recover without our interventions, as was the case for the coastal rain forest.
       Before taking any reforestation measures that could affect the biological diversity,  we are
waiting for the results of studies from Cornell and  Indiana Universities which deal with vegetable
sucession in parcels at Trepada Alta and Los Limones, in order to measure its regeneration capacities
before introducing any foreign vegetation.
       In the  literal area, new fishing regulations have been established to eliminate some
non-discriminating techniques through meetings with fishermen's associations in order to control the
use  of  San Lorenzo Bay and to allow sustainable fishing and regulated ecotourism as well  as
protection and surveillance of the mangrove and mogote forests.
       The strengthening of  the relations  between the National Parks  Directorship and the
neighbouring communities has taken different approaches; meetings, conferences, training courses,
and  support to the surrounding socio-economic infrastructures, as well as technical assistance anc
development of fisheries and agricultural projects.
       The surveillance infrastructure, so desperately needed  in the interior and  literal areas of the
park, will be constructed this year as well as the park's boundaries.  New guardposts will be built anc
sufficient personnel will  be assigned with the collaboration of the Forest Directorship.
       As far as equipment is concerned, a radio communication system that will link different areas
will be installed in order to complement the boats from the coastal area and increase surveillance.
       This whole process, unique in our country, isn't  over yet, so we cannot analyze its results
Nevertheless, with the specific measures taken, the sustainability policies that have taken hold witf
a strong political will and at a very high economic cost could potentially lead to a model solution foi
conservation, ensuring living standards for a population even in the case of an endangered protectec
area with very big social conflicts.
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         257
tppendixt.  Territorial Organization.
Copulation nucleus
Administrative posts
Nucleus linked to protected area
Nucleus surrounding the protected area
foads
nterior roads
Nearness roads
Surrounding roads

Activities and uses
    forest
rorest regeneration
Dontrolled agroforestry
3attle ranching
Mangrove
lAfetlands
    fields
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THIRD INTERNATIONAL CONFERENCE .ON ENVIRONMENTAL ENFORCEMENT
Appendix 2.  Soil Uses In the Los Haitisea National Park in 1984
km2 %
NATURAL AREAS WITHOUT TRANSFORMATION
Forest areas
Mangroves
Wetlands
IMPACTED AREAS
Cleared forest for migratory agriculture
Cleared forest mixed with fallows and regenerating forest
Natural regeneration areas
Eroded and degraded areas
AGRICULTURAL AND CATTLE RANCHING AREAS
Crop areas
Fallow areas
Crop areas with different uses
Pastures and migratory agriculture
Impacted areas under different uses
STABLE CROP AREAS
Rice fields
Sugar cane fields
Cocoa bean fields
Coconut fields
TOTAL
320.36 .
185.56
96.90
37.90
176.23
18.06
54.68
94.69
8.90
616.51
22.53
50.25
186.27
193.12
164,34
215,95
159.95
35.34
19.85
0.81
1,328.83
24.11
13.97
7.30
2.83
13.26
1.36
4.12
7.13
0.67
46.39
1.70
3.79
14.02
14.54
12.37
16.25
12.03
2.67
1.50
0.06
100.00
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
259
Appendix 3. Soil Uses in the Los Haitises National Park in 1989
knf %
WURAL AREAS WITHOUT TRANSFORMATION
^rest areas
Mangroves
Vetlands
MPACTED AREAS
Cleared forest for migratory agriculture
Cleared forest mixed with fallows and regenerating forest
Natural regeneration areas
Eroded and degraded areas
AGRICULTURAL AMD CATTLE RANCHING AREAS
Drop areas
fallow areas
Drop areas with different uses
3astures and migratory agriculture
mpacted areas under different uses
STABLE CROP AREAS
Rice fields
Sugar cane fields
Docoa bean fields
Doconut fields
TOTAL
270.13
135.63
97.00
37.50
199.13
78.50
42.00
69.60
8.90
638.23
21.36
34,15
173.26
227.21
182.25
215.95
159.95
35.34
19.85
0.81
1,323.31
20.84
10.25
7.33
2.83
15.04
5.93
3.17
5.26
0.67
48.23
1.61
2.58
13.09
17.16
13.77
16.32
12.08
2.67
1.50
0.06
100.00
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260
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Appendix 4.  Comparative Chart of Land Use (1984-1989)
i

NATURAL AREAS WITHOUT TRANSFORMATION
Forest areas
Mangroves
Wetlands
IMPACTED AREAS
Cleared forest for migrator)' agriculture
Cleared forest mixed with iallows and regenerating forest
Natural regeneration areas
Eroded and degraded areas
AGRICULTURAL AND CATTLE RANCHING AREAS
Crop areas
Fallow areas
Crop areas with different uses ;
Pastures and migratory agriculture
Impacted areas under different uses ;
STABLE CROP AREAS
Rice fields
Sugar cane fields
Cocoa bean fields
Coconut fields
TOTAL
1984
km2
320.26
185.56
96.90
37.90
176.23
18,06
54.68
94.69
8.90
616.51
22.53
50.25
186.27
193.12
164.34
215.95
159.95
35.34
19.85
0.81
1328.83
%
24,11
13.97
7.30
2.83
13.26
1.36
4.12
7.13
0.67
46.39
T.70
3.79
14.02
14.54
12.37
16.25
12,03
2.67
1.50
0.06
100.00
1989
km2
270.13
135.63
97.00
37.50
199.00
78.50
42.00
69.60
8.90
638.23
21.36
34.15
173.26
227.21
182.25
215.95
159.95
35.34
19.85
0.81
i, 323.3
%
20.04
10.25
7.33
2.83
15.04
5,93
3.17
5.26
0.67
48,23
1.61
2.58
13.09
17.16
13.77
16.32
12.08
2.67
1.50
0.06
100.00
Variat %
- 15.68
- 26.99
0.00
0.00
+12.92
+334.60
-23.19
- 26.50
0.00
+3,52
-1.61
- 32.04
-6.98
+17.65
+10.90
0.00
0.00
0.00
0.00
0.00
1,323,3
 % Variation
          kma 84-km2 89x100
                 km284
 * Difference in extension due to small adjustments of space
 Source: Elaborated from interpretation of aerial photographs made by the Natural Resource Inventory Department
 Dominican Ministry of Agriculture.
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'HBO INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        261


>OPULAR ACTIONS AND THE DEFENSE OF THE ENVIRONMENT IN COLOMBIA

SARMIENTO, GERMAN

'resident, Funclepubiico, Caile 71 - No. 5-83, Santafe de Bogota, Colombia


      SUMMARY

      Four years ago in Colombia the defense of the environment was carried  out through
idministrative procedures by specialized national or local entities. On rare occasions, Judges have
jealt with matters of this nature, in spite of the fact that a number of years ago the Criminal Code
istablished that contamination was a criminal matter, Civil Judges have not tried many of these
ictions. Some actons involving tort liabilities have been raised between private individuals have been
mown., which have resulted in condemnatory decisions pronounced by the Supreme Court of Justice,
ollowing the principles of the traditional concept of liability.
      Environmental  damage and protection: have been a matter exclusively dealt with between
mvironmentai policing entities and the contaminators. The community and private persons have been
jbsent from the conflict. The  environmental policing authorities have also been reluctant to permit
he community and individuals to participate in administrative actions. The Ministry of Health, which
s the most powerful environmental authority in Colombia, has gone so far as to refuse a small
nunicipality its right to intervene in an action originated by the contamination of the municipal water
supply. Likewise, it responded negatively to a claim by FUNDEPUBLJCO to be recognized as  a party
n an administrative action initiated by a state company to obtain a provisional permit for an operation
;ausing emission of pollutants, sources of air contamination. It even prevented the implemention Plan
ran being divulged, the development and presentation of which  is required in order for Colombian
aw to grant the said provisional permit.
      Such decisions issued in open violation of the general principles of the administrative process
and legal provisions which govern the right to  information are being questioned by FUNDEPUBLICO
Defore the competent courts.
      The absence of a civil society for the legal defense of the environment has led to a generalized
:ai!ure to comply with the Natural Resources Code, and the repeated failure to observe the grace period
which the law has long conceded for the contaminators to adhere to She environmental  regulations.
      The air contaminating companies and agents, obliged to prepare and develop implementation
Dlan in a maximum of  four years, have not, since 1982, taken the  trouble to submit the  said plans to
tie Government and much less to develop them  and implement them. The biggest environmental
accident which has occurred  in Colombia on the  occasion of  the spill of a pesticide in the Bay of
Cartagena resulted in the ridiculous fine of US$  1.000.
      Government officials are not usuaily the most efficient in their task of enforcing laws of general
nterest. The public  interest belongs to no one in particular, and therefore has no one to defend it.
These officials are politicians, or depend on politicians, and only respond to concrete  reasons and
Dressures. Their reactions to the media are obsequious, but only as long as the event is a new item.
      The scarce effectiveness and the failure  of the entities and  officials of the Executive  branch
n the defense of common interests, such as  the environment, is not  an exclusively Colombian
Dhenomenon.
      As an alternative, the  United States Congress responded to this situation with adoption of
egal instruments, which can be used by any  citizen to demand compliance with the environmental
aws. The so-called  citizens actions have been .laid down in each of the environment laws made by
Congress in recent years. What is wanted is that they should operate as  an additional and
simultaneous control to that exercised by the U.S.  EPA. In the declaration of motives, ft  is stated that
;he intention of Congress is to act as a goad to the Government and as an alternative to its policing
Dowers.
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262                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       A similar alternative has appeared in Colombia, without its having been necessary to issue
new laws, in the form of a book on this matter entitled POPULAR ACTIONS IN PRIVATE COLOMBIAN
LAW.
       The main  purpose of this legal essay was that of rescuing from oblivion the classica
procedural  institution of people's actions laid down in the Civil Code which, is more advancec
countries, is constituting the greatest of all time.  They have proved themselves to be an effective
means in the solving of many of the tensions and conflicts of industrialization and mastication: ar
element of unity and democratic participation in the process of the administration of justice.
1      THE CONCEPT OF POPULAR ACTIONS

       POPULAR ACTIONS are the collective procedural remedies for public injury and damage
Though POPULAR ACTIONS, any person belonging to a group in the community is legally entitlec
to defend the group effected by certain facts or acts, by which he/she simultaneously protects his/he
own interest, obtaining in certain cases the additional benefit of recompense which  under som<
circumstances is provided for by law. this last element of recompense is the stimulus  given by th«
law for the citizen to come forward in defense of the public interest.
2     BACKGROUND

       The origin of these actions goes back to Roman Law. In Rome, a popular action constitute<
a generalized procedural figure, the citizen, who was nothing more than an integral element of tN
populous, defended the interests of the latter, and his. own interests, through a popular actions. Fo
the Romans, the recompense as one of its essential aspects.
       In legal systems different from the  Anglo-American, the use of popular actions began t<
spread. In Spain they were expressly laid down in the Spanish Constitution of 1968, and have beei
especially developed in the field of urban order, it was also laid down in the Brazilian Constitution ii
the defense of public esthetic, economic and historic patrimony.
 3     POPULAR ACTIONS IN COLOMBIA

       Popular actions in Colombia are contained in the Civil Code, as well as in several of the Latii
 American Codes of Don Andre's Belio, who saved them from Roman Lawmaking an exception to th
 individualism which inspired it. They were completely ignored in Colombia for more than a centur
 by jurisprudence, by legal scholars and by new legislative developments, and even by the mc»
 resourceful litigating attorneys.
       The  Civil Code institutes several popular action in the course of its articles, but conceive-
 two in the broadest of terms, with notable projections in the world of today: popular action in benef
 of goods used by the public and popular actions for contingent injury.
       Popular actions in benefit of goods used by the public are prescribed by the  Civil Code  i
 Article 1005 in the following terms:

       "The municipality and any of its inhabitants shall have the same rights to use its roads,
       squares or other public places, and to pass along or through them in safety, as  those
       enjoyed by the owners of states, properties or private buildings."

       And always when as a consequence of an action of  the people it should be  necessary  t
 demolish or repair a construction or to compensate for an  injury suffered, the actor shall b
 recompensed, at the cost of the defendant, by a sum of not less that a tenth,  nor more than a thir
 part of what the demolition or repair or compensation for the  injury cost; this is without prejudice  t
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"HIRO INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         263


he fact that, if pecuniary punishment of the Infraction or negligence Is imposed, one half of such
jayment shall be made to the actor,
      The popular action for contingent damage is prescribed in Article 2359 as follows;

      "As a general rule action is conceded in all cases of contingent damage which, as a
      result of any imprudent act or negligence on the part of some person constitutes a
      threat to unspecified persons; but if the damage threatens specific persons, only one
      of these may file the action."
I      POPULAR ACTIONS AND THE ENVIRONMENT

       Both the action described in Article 1005 and that of Article 2359 are suitable for the legal
defense and protection of the environment. Law 9 of 1989 {Urban Reform) expressly extended the
scope of popular actions in benefit of goods used by the public to cover the environment, embracing
he  doctrinal interpretation which had  been set  out in the book popular ACTIONS IN PRIVATE
COLOMBIAN LAW, clarifying any controversy which might have arisen in this respect.
       Equally, the action for contingent damage is applicable to environmental damage. These acts
generally produce effects which are not single or final; they occur continually and consistently,
Drodueing potential or eventual injury, although not to specific persons or groups of persons, but to
anonymous and unspecified ones.
       Following the issue of the Urban Reform, the popular action covered in  Article 1005, which
;ouid be called IN BENEFIT OF GOODS  USED BY PUBLIC AND THE ENVIRONMENT The action
jnder this Reform has greater scope that of Article 2359.. Its nature Is not solely preventive, but also
compensatory. The action  for  contingent injury  is  limited  to  prevention. The indemnatory and
preventive character of the action under Article 1005 is indicated by the second paragraph of the
provision:  And always when as a consequence of an action of the people it should necessary to
jemolish or repair a construction or to COMPENSATE for an injury suffered...." The scope of the
•eparation is clarified and reiterated in the reform of the civil procedures which came into force in
Colombia last June, when a special procedure was established for the processing of popular actions
n defense of natural resources and rural environmental  elements,- The  indemnity is  defined  as
collective and indicates State entities as receiver of it. "The Judge may impose on the defendant, in
.he decision... the compensation of damages caused to the COMUNITY and all measures which are
appropriate to prevent the damage or repair it"  (Article 129 of Decree 2303 of 1989). Later it states:
' In the that the decrees the payment of indemnities in accordance with the provisions of Articles 16
.aw 23 of 1973,1005 of the Civil Code, pertinent in this case to renewable natural resources used
tor public use, and Article 129 of this Decree, its value shall be given to the corresponding entity in
accordance with the substantial norm..." (Article 131, idem).
       Both the action under Article 1005 and that Article 2359  generate an indemnity in benefit of
:he actor, which for the Romans was a characteristic and essential element of a  popular action. It is
he  element which moves the citizen to defend the public  interest and to assume the character of
Jivic prosecutor-of the rights of the community. It makes possible the appearance  of a new public
nterest attorney  in conditions of equality with the  attorney representing the private interest. The
3ompensation of the action under Article  1005 is fully specified. It fluctuates between a tenth and
3art of the work the defendant must carry out or of the indemnity which the latter must pay. In the
case of the indemnity of the action under Article  2359, the Code leaves it to the discretion of the
Judge, indicating as a criterion:" The worth of the time and the diligence employed for that purpose..."
       In legal practice these actions have been carried out in eleven suits filed by FUNDEPUBLICO,
several of which are in defense of the environment, among which is the procedure against  Dow
Suimica for the spill of a considerable quantity of pesticide in the Bay of Cartagena; and that against
Mcalis de Colombia, a state owned chemical company, for contamination of the waters of the River
3ogota, None of these processes is complete,  since they are relatively recent, of not more than 18
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264                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
months. Four processes, however,  were the  object of an Agreement which is at present beinj
satisfactorily implemented. In four years, popular actions have advanced rapidly in Colombia, nc
only as a means of environmental defense, but also of collective rights in general. They no longe
belong to the dead file of Colombian law: the modern legislative developments have embraced then
as  an innovative and encouraging tool for  the protection  of the community; they have beei
consolidated as an alternative to the inefficiency of administrative actions and as an element of citizei
participation in the solution to conflicts caused by environmental and public damage. The communit
and civil society organized outside state mechanisms are no longer silent witnesses in the solutia
to these conflicts,  but have become live actors with the capacity to make themselves hears an*
respected.  New possibilities have been opened up for nongovernmental organizations to intervene
in the process of the solution to environmental problems. Judges have become the guardians wh<
define collective rights, recovering the stature which correspond to them rights in society.
       The institution of popular actions, as provided for in the Colombian  Civil Code, transcend
frontiers. Its source is in the Code of Don Andris Bello, which Bolivar conceived as one of the unifyin<
elements of Latin American nations. As  in Colombia, they are included in the Civil Codes of Chile
Ecuador, El Salvador and Nicaragua, and written in identical language. Their extension into the aspec
of environmental defense provides a singular  opportunity for Latin American Law in its response t
the universal Challenge presented by OUR COMMON FUTURE.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         265


'HE ENFORCEMENT OF THE POLLUTION OF SURFACE WATERS ACT IN
'HE NETHERLANDS

'AN DIJK, G.R.M.

Jnie van Waterschappen, Johan van Oldenbarneveldlaan 5, 2582 NE The Hague, Postbox 80200,
!508 GE The Hague, The Netherlands


      SUMMARY

      A short and general view of some actual developments  in the enforcement of the Pollution
Df Surface Waters Act is given. A central issue in this paper is the co-ordination and co-operation
imong the competent authorities.


I      WATERQUAUTY MANAGEMENT IN THE NETHERLANDS: COMPETENT AUTHORITIES

      The Netherlands is the most  densely populated country in Europe, having a population of
wer 14 million people in an area of 37.000 square kilometres. Geographically the Netherlands is a
telta bordering the North sea and forming part of the plain of northern en western Europe. A large
jroportion of the land is artificial. More than 25% of the country is below sea level (more than 50%
vould be inundaf:ed if there were no dunes, dams and other engineering works).
      Historically the major concern of the population was therefore the  "struggle against water,"
esulting in flood  defences, land-reclamation projects and water quantity  management in general.
Vater quality management has thus been  of secondary importance  in the past. Nowadays the
jrotection of the quality of  surfacewaters is a key issue.
      The Pollution  of Surface Waters Act (Wet verontreiniging  oppervlaktewateren or WVO) came
nto force in 1970. The provisions of the WVO contain two main features:
      • Every (discharge of waste-water into a surface water (and in some listed cases into
        municipal sewers) requires a permit from the competent authority.
      • All dischargers are liable to pay a pollution levy according to the "polluter-pays-
        principle."

      The WVO also lays down the allocation of tasks to the various authorities.
      The operational section of the Ministry of Transport, Publik Works and Watermanagement
;RWS) is responsible for the waterquality of the (so-called) state-waters (the larger surface waters,
j.g. the river Rhine, the lake Ussel and the territorial part of the North Sea).
      For all other  surface waters (the "regional waters") this responsibility lies in principle with
3rovincial  authorities. These  provinces are  however allowed to delegate  the right to  grant
discharge-permits (and to charge levies) to other public bodies. Most provinces have used this
jpportunity and  have transferred water quality management to water-boards. At present (1994) 28
vater-boards and 2 provinces are responsible for the water quality management of the regional waters.
/Vater-boards with responsibilities  for water quality have the  additional function of providing and
jperating the sewage treatment plants.

1.1    Water-boards

      Like the provincial and municipal authorities,  the water-boards  are  also instruments of
3overnment. They are independent and have their own areas of authority.
      They can draw up regulations which citizens must observe  and they can levy taxes. The
difference is in the tasks. The municipalities and provinces are involved in various tasks of general
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266                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
significance (e.g. education, culture, the environment, town and countrypianning etc.). A water-boarc
has only one concern, i.e. the water management of a given area (most of the time water quality- as
well as quantity management).
2      ENFORCEMENT OF THE WVO

       According to the Dutch environmental laws, the permitting authorities are in  general alsc
responsible for compliance checking and enforcement. This means that the water-boards (and ths
other permitting authorities mentioned above) are responsible for;
       « The administrative enforcement of the  provisions laid down by or pursuant to the
         WVO (e.g., enforcement of the conditions set in permits and  other regulations
         concerning discharges).
       • Collecting and recording information about the discharges (compliance checking).
       • Dealing with complaints.

       Within a water-board organisation enforcement officers do not deal with granting permits, li
order to prevent role-conflicts, these functions are separated.
       After the Pollution of Surface Waters Act came into force in 1970, the emphasis was initial!
placed on licensing. In those "early" years compliance checking and enforcement have largely beei
in response  to complaints. In the 80's most water-boards developed a policy-based,  structure
approach to enforcement. In general, an important element of this approach was the developrner
of systematic inspection-programms.
       In 1992 all the authorities involved with enforcement of the WVO agreed upon a nationa
uniform enforcement-approach. The policy document in which this approach is formulated, is calle-
"Enforcement equals action" ("Handhaven is doen"). Some elements of of this approach are examine
in the following section.

2.1    Enforcement policy criteria

       There are certain criteria to which all policy must conform: it must be effective, efficient, an
consistent. This applies equally to policy on enforcement.
       Being consistent means that legislation and regulations must be enforced in a uniform wa^
that is, similar cases must be dealt with similarly. Consistency also means  that every infringement <
the  law which comes to light must be investigated.  It is important  to  appreciate  the need ft
maintaining credibility. Legislation and licensing must be taken seriously, and those affected shoul
understand that the regulations involved are reasonable. It is of course essential that the governmet
itself is also convinced that its legislation is sensible and does not make any unreasonable demanc
on those affected.
       If the authorities really do intend to take a serious and consistent approach, then they shoul
be prepared, where necessary, to take tough  measures to ensure that statutory  standards ar
observed. Compliance with the  law is  thus  encouraged and that all-important credibility factor
strengthened.
       Consistency in WVO-enforcement means in concrete  terms  that  every offence has to fc
investigated and that where possible a public and adequate action has to be taken on the offeno
Adequate action can consist of the following civil actions and sanctions:
       •  A warning.
       •  Preventive pscuniary penalty.
       «  Executive coercion.
       »  Withdrawing a permit.
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                  .


      In case of severe offences, civil action must be followed by initiating judicial sanctions. In the
jolicy-document criteria are given in order to determine if an offence has to be qualified as "severe,"
      Being effective means that the goal of clean water must be achieved by means of the policy
devised for that purpose, Measures and procedures not geared specifically to the intended goal
should not be employed.
      Being efficient implies that the intended goal is reached with the lowest possible expenditure.
f further means are available, then a decision must be made as to which are most suitable for the
ask in hand.

12    The balance between criteria and enforcement

      There is no question that any well-administered policy of enforcement, corrective or otherwise,
should produce some deterrent effect.
      Statutory standards, in particular environmental  standards, should be enforced strictly and
xnsistently, If little or no importance is attached to this, or little or nothing is done to put it into effect,
here will be little incentive to stay within the law, in view of the profit to be gained from not doing so.
Che deterrent effect is aimed at making potential offenders appreciate the consequences of their
ictions. A relatively small-scale enforcement operation can lead  to a large-scale response in terms
3f compliance wilh the law. Deterrence is really effective only when a number of conditions are met,
such as:
      •  The risk of  being caught must be perceived  as  sufficiently  real.  The risk of
         detection must be great enough to deter people form offending.
      «  There must  be an adequate response whenever an offence is  detected. This
         implies that any  offence should  be  rapidly penalised, using  sanctions whose
         severity Is proportionate to the offence.

      This meais that enforcement must be properly balanced.  It seems reasonable  to assume
hat the inclination to offend or reoffend will be reduced if the chance of being caught is sufficiently
great and  the response is adequate. The number of infringements of the law will then show a real
•eduction,  and less energy will have to be expended on enforcement.
      A downward spiral could eventually be created, whereby:
      • The number of offences goes down.
      • A more flexible, revised policy of enforcement is developed,

2.2.1  Factor 1: The risk of being caught   -  •

      risk of being caught = number of recorded offences/number of offences committed

      The number of recorded offences refers to all offences which have come to notice within a
given period, be it through surveillance and investigation, or through  reports form third parties.
      The number of offences committed  refers to the total number of offences, in an  absolute
sense, which have been committed within the same period. It is only possible to estimate the total
number of offences, since forbidden activities often tend, by their nature, to remain elusive.
       If the risk of being caught infringing the WVO is sufficiently great, then potential offenders will
De less inclined to offend or, as the case may be, reoffend. One should, however, bear in mind that
:he risk of being caught must inevitably be greater in some situations than in others—priorities are
jnavoidable, A person  guilty of discharging highly toxic substances, for example, stands to profit
considerably (in a financial sense) by not being detected and  will,  therefore, only be deterred if the
Isk of detection is significantly higher than in the case of someone disposing of household waste
    r, for instance.                .         ;   ,
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268                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2.2.2   Factor 2: An adequate response

       adequate response = number of recorded offences against which adequate action is taken
                           number of recorded offences
       Although a high risk of being caught is undoubtedly important, the response to a deteete?
offence is perhaps even more important. There should be no "gap" between the number of recordec
offences and the number of offences which result in action—prosecution or otherwise—being taken
This would mean that some offences which came to notice were not acted upon in a way which was
either socially or politically required, and that the credibility of policy on enforcement would thereby
be damaged.
       The document "Enforcement equals action" assist enforcement officers in closing this "gap.
It expands upon the three criteria—greater consistency, effectiveness and efficiency—required for i
proper enforcement policy, and should  lead to an adequate response to reported offences.
3      CO-OPERATION AND CO-ORDINATION

       The  national association of water-boards, the association of provinces and the RWS an
members of a national steering committee "DUIV" (in connection with administrative enforcement
and to the Water Committee of the  Public Prosecution  Department (in connection with crimine
enforcement). Besides these committees there is a national co-ordination committee in whiel
administrative as well as criminal enforcement policies are discussed: the "LCCM." The mention©
authorities themselves are also represented in  provincial and  regional environmental consultativ
committees.
       All the authorities, involved with the implementation of the environmental laws and th
enforcement of these laws have agreed upon the goal that the implementation (e.g., granting permits
and enforcement have to be on an adequate level in 1995.
       In order to reach the enforcement-goal, a national,  provincial and regional structure has bee
created in order to stimulate co-ordination and co-operation between the authorities that are responsibl
for the WVO-enforcement and authorities that are competent to enforce other environmental laws (e.$
municipalities). Where possible water-board should operate together with these other official bodies
especially in order to  achieve an integrated compliance checking. (In this way  in  one  visit a
establishment can be inspected on every activity that can have effects on the environment.
       Co-operation however cannot always be achieved. The policy that is  formulated in th
document "Enforcement equals action" is focused on a national, uniform approach of complianc
checking and enforcement of the WVO, This policy includes directives for priorities,  As enforcemer
of other environmental laws can lead to other priorities, co-operation  by means of integrate
inspections  can easily be frustrated. Besides these differences in policies, practical problems ca
occur. Inspections of WVQ-permits are, for example, often carried out by means of measurement
and sampling during a couple of days or even weeks. Therefore it is not always practical and effectiv
to co-operate. Nevertheless it is important that water-boards make the best possible contribution t
the various co-operative structures.
 4     CONCLUSION

       Considering the developments that are viewed above,  it  is obvious that the compete!
 authorities in the Netherlands are growing to a more uniform and structured enforcement of th
 environmental laws. Within the area of the WVO there already exists a national, uniform approacl
 This co-ordination and co-operation within the field of the WVO however makes ft difficult for ti"
 WVO-authorities to co-operate with other official bodies. Co-operation therefore cannot be a goal
 itself, but has to lead to a more effective and efficient WVO-enforcement.
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        269


THE RELATIONSHIP BETWEEN CENTRAL GOVERNMENT AND
'ROVINCIAL/MUNICIPAL AUTHORITIES WITH REGARD TO ENFORCEMENT

JETERS,JEL!SA.

Director of Policy Affairs, Netherlands Ministry of Housing, Spatial Planning and the Environment,
^ijnstraat 8, RO. Etox 30945,2500 GX Trie Hague, Netherlands


      SUMMARY

      An outline is given of the cooperation between the government of the Netherlands and the
provincial and municipal authorities in  the field of environmental  policy.  The instruments for
;nvironmental lav/ enforcement are discussed. Finally, a  review is given of the new structure for the
;oordination of the enforcement activities of the various auttiorities concerned.


I      COOPERATION BETWEEN AUTHORITIES IN ENVIRONMENTAL POLICY

      In the Netherlands the provincial and municipal authorities carry out a number of important
snvironmental tasks. There are 12 provinces and 636 municipalities, each of which has its own elected
government. We prefer to call them "other authorities" rather than "lower authorities".
      For a long time the most  important task of the other authorities was the implementation of
3nvironmental legislation: granting licences and enforcing the law. In the last ten years it has become
apparent that environmental  laws were not being properly implemented. Many companies had an
Dutdated licence or no licence at all. This was due to the Increase in the number of regulations and
a lack of money and personnel. Given the growing  interest in the environment this was not an
accceptable situation.
      Agreements  were therefore made between the national government and the organisations
•epresenting the provinces and municipalities: the Association of Provincial Authorities (IPO) and the
Association of Netherlands Municipalities (VNG). In 1989 and 1990, the government allocated extra
xinds to the other authorities in order to eliminate the backlog, subject to certain conditions:
      «  Equal contributions to be paid from the provincial and municipal budgets;
      •  The money was to be used to reinforce the environmental staff;
      •  Municipalities with less than  70,000  inhabitants had  to  cooperate  with their
         neighbours, to ensure sufficient expertise;
      *  Proper programming of activities;
      «  Annual progress reports, approved .by the  Inspectorate, were to be sent to the
         environment ministry; and
      *  The implementation  of environmental  legislation must be adequate  by  1995
         (regular review of licenses, sufficient enforcement activities).
      The proper implementation of environmental legislation is not in itself sufficient to achieve the
objectives of the National Environmental Policy Plan (NEPP). Many other activities are needed, such
as promoting concern for  the environment within the various target groups (industry, agriculture,
transport, trade, consumers etc.), encouraging energy conservation, separate collection of waste, soil
olean-up, and the use of spatial planning to create better environmental conditions. Here, too, the
other authorities have an important role to play. Centra! government reached agreement with the IPO
and the VNG on their joint responsibility for the implementation of the first NEPP, that appeared in
1990. Both organisations drew up a framework plan for the implementation of these activities. Again,
the government made extra funds available.
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270                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       All the provinces and  a great many of the  municipalities  decided to participate in these
projects. In total, the provinces received  some  600 extra full-time equivalents (FTEs) and th«
municipalities around 2000 extra. The  Public Prosecutions Department and the police were alsc
allocated several hundred FTEs extra for their environmental tasks.
       The additional funding  available was certainly not the only reason for the participation of the
other authorities. In the last few years, environmental issues  have become very important in the
Netherlands. All the political parties are agreed that much more emphasis should be given to this
subject. The provincial executives and municipal councils have  committed themselves to intensifying
their environmental policies. The ideas contained in the NEPP obviously fell on fertile soil.
       Our experiences with these agreements have, generally speaking, been  good. Of course
there are problems. All the authorities  have had to cope with various new developments and se
priorities. A committee representing central and municipal government recently concluded that mos
municipalities will reach an adequate level of implementation of environmental legislation one or tw<
years behind schedule. Continued attention is needed to stimulate the improvement and intensificatior
of municipal environmental efforts.
       In December 1993 the  second NEPP was issued. Improved  implementation of environmenta
policy at all levels, with better resources,  is the ^underlying theme of this NEPR Fresh consultation;
with the IPO and the VNQ are necessary  to reach  agreement on the allocation of tasks.
2     ENFORCEMENT INSTRUMENTS

2.1    Powers of inspection

       Under Dutch environmental legislation the authority responsible for issuing licences  o
receiving notification is also responsible for administrative enforcement, including supervision. To fulf
this role, the authorities concerned need to have the right instruments at their disposal. First anc
foremost, they need to have the power to be able to check that the rules are being complied with
These authorities are therefore able to designate officials working for them as inspectors. The power:
of these inspectors are laid  down by law and can be summed up as follows;
       * Inspectors may enter all premises other than dwellings;
       » They must be given access to books, documents and computer files, of which they
         may make a copy;
       * They may inspect the load on a  vehicle or vessel  and, in  certain circumstances,
         order a vehicle or  vessel to stop;
       • They may inspect goods and take samples.

       These powers may as a rule be used only if they can reasonably be considered necessar
to the inspector's work.

2.2   Powers under criminal law

       The instruments available under criminal law are derived from the Code of Criminal Procedur«
and the Economic Offences Act, The most  important of these are:
       « Settlement out of court in consideration of a fine  (arranged by the investigating
         officer);
       » Drawing up an official police report for submission to the public prosecutor;
       • Preliminary judicial investigation;
       • Out-of-court settlement (public prosecutor drops charges);
       » Seizure of property;
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         271
       • Provisional rulings,  for  instance ordering the suspect  to  refrain  from certain
         activities or to keep property that is liable to seizure in a given place, or ordering
         that a company be partially or completely closed down or placed in the hands of
         the receivers.;
       • Pre-trial detention;
       • Tapping telephones; and           !
       • And of course, prosecution, trial and,' ultimately, conviction.

       The Economic Offences Act, which contains the bulk of environmental legislation, provides
for principal penalties, additional penalties and court orders.
       Principal  penalties consist of fines and detention or a custodial sentence. The maximum
penalties indicated are regarded in environmental circles and elsewhere as too low.
       Additional penalties include:
       • Closing down a company;
       • Forfeiture orders;
       • Publication of the judgement.

       The court orders that can be imposed under the Economic Offences Act include:
       • Putting a company into receivership;
       • Deprivation of illegally obtained advantage;
       • Restoration of what has been damaged to its previous state.

       Despite being court orders 'only' and not penalties, measures such as these can be a heavy
blow to the company concerned, which therefore feels that it is being punished. They can be very
effective.

2.3    Means of enforcement under administrative law

       An inspector will normally inform a company verbally of his findings, indicating the time-limit
within which any illegal activities he has discovered must cease. His findings are also entered in the
records of the enforcing authority. The company then usually receives a letter stating in writing the
offences being committed and the time-limit for ceasing these activities. It  is recommended that at
least one such warning letter should be sent/ If this warning—or a second or even  third letter—is
ignored, the question then arises of whether to drop the matter, to tolerate it or to take action of some
kind.  In the latter case, the following instruments  are available to the enforcing authority under
environmental law:
       • Administrative sanctions, including closing a company down;
       • Environmental performance bond (public iaw);
       • Withdrawal of the company's licence.

2.4    Means of enforcement under private law

       Under certain circumstances it is possible to compel a company to comply with environmental
regulations by resorting to private iaw instead of or as well as administrative law. Actions of this kind
can in principle be brought by private individuals as well as government bodies. A person who can
show that their interests have been damaged or are likely to be damaged can bring an action for
tort. The government, too, can bring an action for damages, for instance to recover the costs of
cleaning up soil contaminated at some point in'the past by a third party. The  State of the Netherlands,
which has been confronted with some big bills for cleaning up polluted soil, brought numerous actions
in the second half of the 1980s against the original polluters in order to recover the costs incurred,
and won.
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272                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Rulings by the highest civil court in the country support the right of the government to bring
such actions not only to recover financial losses but also to enforce compliance with environmenta
regulations. The court ruled that failure to comply with  the law can damage  the interests of the
government in protecting the environment.
       The government may resort to private law even if other options are open to it under public
law, provided that the former is not seriously at odds with the fatter. Offenders against environmenta
legislation can therefore, under certain circumstances,  be compelled indirectly to comply with the law
by resorting to private law.
       It should be added that the use  of private  law for this purpose  is still  in its infancy in the
Netherlands compared to other countries, notably the United States, where it is far more commonplace
This is mainly due to the difference in cultures (the readiness to sue).

2.5    Toleration

       In spring 1990 the transport and environment ministers wrote to the Lower House of Parliamenl
saying that too many offences were being deliberately  overlooked in the Netherlands, that this shoulc
be allowed to happen in very specific circumstances only and that, where it did happen, a decision
granting temporary exemption  should be issued. The content of this letter was subsequently
incorporated—some would say watered down—in a policy memorandum outlining a joint policy
framework for reducing the toleration of environmental offences, which was presented to the Lowei
House of Parliament  in October 1991. The memorandum was supported  by the Association 01
Netherlands Municipalities, the Association of Provincial Authorities and the Association of Watei
Boards as well as the two ministers concerned. Some  of the more interesting points are listed below,
       »  Toleration means a decision by the authorities not to use the means of enforcement
          available to them when an offence has been discovered  and the  issuing  by the
          authorities upon request of a statement to the fact that they will not take any action
          against an offence which has not yet been  committed, whether pending the issue
          of a licence or otherwise.
       •  The memorandum  applies to administrative bodies only and not to the Public
          Prosecutions Department.
       •  A distinction is made between the transitional  period from 1991 to 1994 and the
          period beyond 1995.
       •  A number of examples are given of instances  in which failure to comply with the
          regulations might be tolerated.
       •  The memorandum  ends by saying that  the aim is, by 1995, to  have gradually
          achieved a situation in which offences are tolerated only in circumstances involving
          force majeure or as a transitional measure. In the meantime  policy will take into
          account both the work now being done to eliminate the backlog and the anticipated
          improvements in the range of instruments available.
 3     THE NEW ENFORCEMENT STRUCTURE IN THE NETHERLANDS

       The growing number of enforcement activities  being undertaken as a result of the NEPF
 necessitated greater coordination between the various competent authorities and agencies. On the
 initiative of the Inspectorate for the Environment, a model was designed in 1990 by a working group
 comprising representatives of the provinces, municipalities and water boards, the police, the Public
 Prosecutions Department  and  the other four Ministries concerned  (Interior, Justice, Transport anc
 Agriculture). The main elements of this model are as follows:
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"HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         273
       • Establishment of structural consultative bodies (groups concerned with enforcement
         matters) at the three levels of government (bodies of civil servants and bodies of
         elected officials);                  ;
       • Annual programming of enforcement activities by all agencies, including the police,
         at the three levels of government;
       • Financing the cost of enforcement1 on the basis of commitments (business-like
         partnerships);
       • Use of intermunicipal cooperative associations as the core of enforcement activities;
         and
       • At intermunicipal  level there must be a  central  point from which enforcement
         activities are coordinated and a "team of enforcers".

       The main aim of the enforcement structure is to achieve the following:
       • All participants  working  together  at each level of government (all government
         departments, all provinces, all municipalities) as well as vertically (the three levels
         of government jointly);
       • Realisation of an integrated, multi-media approach;
       • The  administrative authorities on  the one hand and the police and the Public
         Prosecutions Department on the  other working together (not  as two separate
         systems); and
       • Municipalities working together or, starting to do so  within  an  intermunicipal
         cooperative association (of five to fifteen municipalities).
       To help set up the enforcement structure at regional level, six pilot projects were started up
in 1991  in order to determine what might be an effective structure and how it might be introduced.
Enforcement conferences were also organised  at regional level in 1991 and 1992 with a view to
providing information and reaching agreement on the enforcement structure. The pilot projects and
conferences were funded  by the  Inspectorate for the  Environment. In  addition activities  were
undertaken in many regions to promote cooperation in environmental law enforcement.
       The working group that designed the model for coordinating enforcement activities in 1990
is now continuing its work under the name: National Coordination Committee for Environmental Law
Enforcement (LCCM).  The main task of the Coordination Committee is to  monitor and promote the
implementation of the  enforcement structure, as described above, at all three levels of government.
The Committee also identifies bottlenecks and provides solutions (e.g. publication of an Enforcement
Structure Manual). The members of the Committee enjoy  equal  status,  each retaining their  own
responsibility and authority. In this way, systematic and  programmed cooperation among all the
enforcement agencies is ensured and each individual agency tends to operate in a more systematic
way.
       Under  the  new Environmental  Management Act  the provinces are  being given  statutory
responsibility for coordination environmental  policy at provincial level. The Provincial Environmental
Forum will play an important role in this respect. Under the new enforcement structure, however, the
emphasis will b« placed on the  regional level. Regional Environmental Forums are being set up at
both policymaking and executive level in the  Joint Regulations Act regions. Participants in the Forum
will include not just the municipalities and regions but also the other enforcement agencies in the
region in question. The consultations are designed to ensure that enforcement activities are properly
coordinated and consistent with each other. A'Regional Coordination and Information Centre is to be
set up for all the enforcement agencies in  each region.  In addition an enforcement team will be
appointed for the purposes of joint enforcement.
       At the initiative of the LCCM a  report was drawn  up in March 1992 on the progress made
towards introducing the enforcement structure at provincial and regional level. Among other things
this revealed that many provincial and regional forums had been set up. In many cases it was  sufficient
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274                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
to expand the existing forums with participants from other bodies. Recruitment of staff for the Regiona
Coordination and Information Centres and the enforcement teams was proving difficult, as was the
drawing up of regional implementation programmes. In addition there proved to be ambiguity abou
the way in which various elements of the aforementioned pilot projects were in fact  being
implemented, whereas these projects had in fact been designed to eliminate such ambiguities.
       In October 1992 the LCCM presented the national enforcement programme for 1993,  whicr
sets out four enforcement priorities.                       •   .
       The first of these concerns the depletion of water resources, especially the enforcement o
sprinkling bans. This is primarily the  responsibility of the provinces, water boards, police and the
Public Prosecutions Department.
       The second concerns the growing nutrient load  on the  environment and acidification. Ir
particular this concerns the enforcement of the various (fertiliser)  regulations,  which is primarily the
job of the General Inspectorate, the Regional Inspectorates for the Environment, the police and the
Public Prosecutions Department. The water  boards,  provinces and  municipalities also  have
responsibilities in this area, namely monitoring and enforcing compliance by livestock'farms with the
various decrees and the Nuisance Act under administrative law.
       The third priority is to prevent the spread of cadmium in the environment caused by industria
discharges, dredgings, sewage sludge, fertilisers and the discharge/dumping of cadmium-bearinc
products.                        .
       The fourth priority is to cut back the use of CFCs, especially for  industrial and commercia
refrigeration, halon fire-extinguishing agents,  solvents  and detergents. The  municipalities anc
provinces, in collaboration with the Inspectorate for the Environment, will monitor compliance with the
CFC decree during routine Nuisance Act inspections.
       National enforcement priorities are meant to percolate through into the provincial and regions
enforcement programmes. Various kinds of enforcement programmes may be distinguished:
       * The "omnibus model": a  collection of the plans of the  various enforcement
         agencies;
       » The "coordination model": the enforcement agencies coordinate their activities and
         keep one another advised of relevant findings;
       * The "implementation model": planning, programming and implementation are
         handled jointly.
       The Association of Netherlands Municipalities  has issued a circular setting out a step-by-stef
plan,  in  which the regional enforcement coordinators are provided with  a guide for drawing up ?
programme following the coordination model, plus certain features of the implementation model, ir
consultation with all the agencies concerned. In essence this gives rise to a joint programme of the
various  bodies  designated as competent authorities  under environmental legislation. In idea
circumstances coordinated enforcement should result in the. full regional  coordination and planning
of the input of financial and personnel resources  by all  the  agencies concerned, as well as full;
coordinated joint implementation. For various reasons this  will be difficult to achieve in the short term
Many of the agencies in questions assign fop priority to eliminating ttie backlogs that have built up
over the years and concentrate on the issuing of licences.  In addition the various agencies each have
their own responsibilities and  powers. Coordination is clearly required where there is an overlap o
tasks, but less priority is assigned to the joint programming of other activities.
 4      CONCLUSIONS

        In the Netherlands a fruitful cooperation is growing between central, provincial and loca
 governments and  agencies in environmental policy and enforcement. Characteristics of this
 cooperation are:
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         275
        The recognition that the various authorities and agencies are partners and that they
        carry together the responsability for a good environmental policy,
        Conversion of the strategically formulated objectives into concrete targets and
        actions for the regional and local authorities.
        Provision of the local and regional authorities with sufficient financial means and
        legal instruments.
        Enlargement  of professionalism  in implementation at the various governmental
        levels, .and promotion of cooperation between the smaller municipalities to reach
        adequate expertise and professionalism.
        Selection of the enforcement instruments (criminal, administrative or civil law) for
        concrete situations in mutual consultations.
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276                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        277


CONTROL OF LICENCE-HOLDERS FOR THE DISPOSAL OF CHEMICAL WASTE
IY THE INSPECTORATE FOR THE ENVIRONMENT IN THE NETHERLANDS

TAATS, HENRY

ispectorate for the Environment of the Ministry of Housing, Spatial Planning and the Environment
i/ROM), Willem Witsenplein 6 (IPC 681), Postbus 30945, 2500 GX The Hague, The Netherlands


      SUMMARY

      Over the last two years the Inspection for the Environment has carried out a standardized
heck on all licence-holders  for the disposal of chemical waste. Not only was compliance with the
cences checked,  but an assessment of the quality of the licences was made as well. The situation
if the companies;  was charted in detail, besides, recommendations were made for improvement.
/loreover, the data proved to be an excellent basis for delegating tasks to the provinces, who, as a
esult of a change in law, are responsible for the inspection of these licence-holders from 1 January
994.
      This paper describes the way in which the Inspectorate for the Environment has carried out
Te national investigation and results achieved.


      INTRODUCTION

      In the Netherlands licences  are required for collecting, storing, processing and dumping of
;hemical waste. Until 1 January  1994 these licences were granted by the Ministry of VROM. The
nonitoring of compliance was carried out by nine Regional Inspections for the Environment and the
Jhief Division Enforcement Environmental  Legislation of the Inspectorate for the Environment. The
ast two years an  extensive  nationwide investigation has  been undertaken into the state of affairs
imong licence-holders. The  objectives were the following:
      • to realise better compliance of the environmental  licences;
      • to provide a survey of the quality of the licences;
      • to point  out bottlenecks in legislation and regulations; and
      • to provide a basis for the transfer of enforcement tasks to the province.
      The Inspectorate for the Environment is a division of the Ministry of VROM. The Inspectorate's
ask is to promote the  Ministry's policy and to check its implementation. The lower authorities (such
is municipalities and provinces) are responsible for most of the implementation tasks. This means
hat the Inspectorate stimulates, among other things, the functioning of the lower authorities (in the
snvironmental field).
      The Inspectorate for  the Environment itself is primarily responsible for, e.g.:
      • Dangerous Substances Act.
      • Nuclear Energy Act.
      • Water Supply Act.
      • Chemical Waste Act.

      Since 1  January 1994 all twelve provinces  of the Netherlands  have become  competent
juthorities with regard to the licence-holders for the disposal of chemical waste as a result of an
imendment of the law (Chemical Waste Act).
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278                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
1.1     Organisation and procedure

       The situation in the companies involved in the disposal of chemical waste has been surveyei
extensively. In two years'  time all licence-holders for the  disposal of chemical waste have beei
subjected to a standardized check. Compliance with the licences was investigated, as well as tr>
quality of the environmental licences.
       This investigation has  been set up and executed  thematically. The project organisation i
composed of representatives of all nine Regional Inspectorates for the Environment and members c
the Chief Division Enforcement Environmental Legislation.
       The national project coordinator had the use of a bureau with a limited staff. This bureau gav
directions to the people responsible for executing the project, assisted the inspectors in carrying 01
their tasks and processed the control data for reports.
       The  execution of  the  project involved 45 persons. The total effort amounted to twent
man-years for two years.  During one and a half year 760 companies (Table 1) were visited an<
subjected to a detailed inspection. The enforcement activities  and re-checking after shortcoming
had been established c»ntinued for another half year after  termination of the investigation and hav
now been finished. There were 2000 company visits in all.

       Table 1.  Overview of Branches Visited
                                                                       Number of
       Overview of branches                                              licence-holders

       Distillers                                                               16
       Collecting and processing of used oil                                       12
       Depots for small chemical waste                                          480
       Collecting, storing and processing of chemical waste from shipping               90
       Storing of chemical waste                                                60
       Metal recovery and installations for the treatment of galvanic baths               21
       Soil sanitation companies and temporary depots for polluted soil                 17
       Collecting of chemical waste                                              44
       Burning and dumping of chemical waste                                    19
        The findings of this investigation have been described in nine section reports and a fins
 report. These reports are named in the References.
 2      FINDINGS

        The number of shortcomings which were established was high. Due to the fact that follow-u
 actions were immediately  undertaken with subsequent  re-checks, this  number  has decrease
 considerably.
        In Table 2 the reduction of the number of shortcomings is given per control round. The fin
 round represents the situation of a detailed control, the second and third round show the results <
 the re-checks.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         279
         Table 8.  Reduction Shortcomings par .Control Round

1st round
2nd round
3rd round
Number
shortcomings
2562
1037
119
Number
companies
540
381
53
Average
shortcomings
5
3
2
      The shortcomings concern the quality of the licences and compliance conduct of the licences.

:.1    Quality of licences

      In the case} of a great many licences regulations for the prevention of pollution of the soil (235
ompanies), of surface water and sewage (389 establishments) are lacking. Moreover, procedures
3 prevent danger are not specified in 122 establishments and in 403 companies a general regulation
ir more than one (administrative and/or procedural) did not even exist.

:,2    Compliance conduct

      Compiianoe conduct was assessed according to the licences. It is easy to comply with a bad
cence, a correct compliance conduct therefore does not necessarily mean that the environmental
trovisions are  adequate.
!      FOLLOW-UP ACTIVITIES

      In most cases a warning letter was sent to the companies. In 55 cases an official report was
ssued, 11  times a recognizance was imposed  and 3 times an order was issued to close the
ompanies.
      The competent authorities have been strongly advised to adjust the environmental licences.
tecommendations  have been made as to how these should be improved. Moreover, the term within
/hich this should take place has been set.    :
      Furthermore, a guideline has been drawn up in cooperation with other authorities, which states
ne conditions depots for small chemical waste have to fulfil.
      The privata sector trade association, in general, endorses the main conclusions and has
liscussed the results with the companies. A few recommendations,  in particular those  concerning
.dministrative and internal organisation, have already been incorporated in an environment and quality
afeguard system of the branche association.
      FINAL RESULTS

      Following, a brief overview of the results:
      • the investigation has given a good insight into the situation among licence-holders
        for the disposal of chemical waste;
      • the number of shortcomings in the companies has greatly diminished. Follow-up
        actions in combination with re-checking prove to be effective;
      • recommendations have been made with regard to:
           -  compliance of licence requirements;
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280                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

            -  quality of licence requirements;
            -  a guideline has been drawn up defining the conditions which the
               depots for small chemical waste have to satisfy.
       « agreements have been made about the way in which and the term within which the
         licences are to be adjusted.
       As a result of the enforcement action the environmental situation in companies has improve
noticeably. In addition, the results provide an excellent basis for transfer of enforcement tasks to th
provinces.
       A thematical transfer has been opted for. All licence-holders will be checked by the province
together with the Inspectorate for the Environment for a period of one year. The control syster
developed by the Inspectorate, as set out in this paper, will be used for friis purpose.


S      REFERENCES

       The following reports are produced in this National Enforcement project Chemical Waste Ac
       » Standarised check for the control of licence-holders for the disposal of chemical
         waste;
       • Handbook inspection licence-holders for the disposal of chemical waste and used
         oil (1993/78);
       « Distillers (1992/54);
       * Collecting and processing of used oil (1992/55);
 ..,-  - *_ Dep.otsJocseoalLchemtaaLwaste4l992/51);_	   .....,_	
       • Collecting, storing and processing of chemical waste from shipping (1992/59);
       » Storing of chemical waste (1992/67);
       • Metal recovery and installations for the treatment of galvanic baths (1992/68);
       • Soil sanitation companies and temporary depots for polluted soil (1993/69);
       • Collecting of chemical waste (1993/70);
       • Burning and dumping of chemical waste (1993/76);
       • Final report (1993/77).
       These references are only available in the dutch language.
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'HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                      281
                                 THEME 5:

            THE ROLE OF  COMMUNICATION IN AN

                     ENFORCEMENT PROGRAM


 1, A Tribute to Paul G. Keough	,	..283
 2, Changing Environmental Behavior In the United States Through the Use of
   Public Disclosure of Information, RG. Keough	285
 3. The Role of Communication for Implementing Enforcement Policy, J. C. M. Veenman	293
 4. Media Challenges in  Environmental Enforcement: The Case in Nigeria,
   0.0. Uwejamomere	301
 5. Planning and Executing Strategic Environmental Enforcement Initiatives: Maximizing
   Enforcement Impact,  ft van Heuvelen, RJ. Fontaine 	309
?ee related papers from other International Workshop and Conference Proceedings.

 1. Information Campaigns Benefit Enforcement of Environmental Laws, J. van Ekeren and M, van
   der Voet (additional paper), Volume 1, Budapest

 2. From Public Disclosure to Public Accountability: What Impact Will it Have On Compliance, F.
   Irwin, Volume I, Budapest

 3. Disclosure of Environmental Information and Enforcement of Environmental Law in Flanders:
   The Complementary Role of Governmental Authorities and NGOs, ft ete Saere, Volume I,
   Budapest

 4. Use of Public; Disclosure in Environmental 'Protection Programs to Enhance Compliance and
   Change Behavior in the United States, R Keough, Volume I, Budapest

 5. Public Disclosure and Its Impact on Compliance, N. Blackburn, Volume II, Budapest

 6, Public Disclosure and Citizen's Role in Enforcement, £.  Popov, Volume II, Budapest
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282                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN-
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        283
i TRIBUTE TO PAUL G. KEOUGH

      We pay tribute to Paul Keough, who was to serve as moderator for Conference Theme #5,
n the role of communications in an enforcement program. His paper, which follows, was completed
nortly  before he passed away quite suddenly, on January 17,  1994, at the young age of 48. The
abject of Paul Keough's paper is a fitting tribute to a career dedicated  to finding better ways to
ommunicate with the public on environmental concerns. He was a forceful advocate for investing in
ublic  education on  environmental  matters and  for an  open  and  aggressive  program of
ommunication with the news media. He believed in and had faith  in the public, and sought their
nderstanding and support for over a decade as the highest career official in EPA's Region I Office,
arving as Deputy Regional Administrator in Boston,  Massachusetts for the Northeastern US, He
•as a national leader in efforts to more effectively reach the news media  in order to leverage each
jgional and state enforcement action to gain broad support for compliance and pollution prevention.
le wielded the power of communications skillfully, working with the press to provide added pressure
n public officials to come into compliance with environmental requirements when authorities for
ursuing enforcement action against Federal governmental facilities seemed lacking.
      Paul  Keough  will be remembered by. participants at  the  first and second International
Conferences for his ready wit and humor, and for his ability to engender active participation in focused
iscussion. His public personna was matched by his dedication to  the employees of the Regional
ffices as well as to the environment and public health they strived to protect. Ever accessible, ever
ositive and uplifting, we pay tribute to a  man who always felt  there was  an answer to a problem,
tio never backeci away from a challenge, and always kept his sights on what we are all trying to
uild for a better tomorrow. As colleagues and friends we will miss Paul Keough as a person of great
umanity and dedication to the  goals of the Third International  Conference on Environmental
nforcement.
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284                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        285


CHANGING ENVIRONMENTAL BEHAVIOR IN THE UNITED STATES
'HROUGH THE USE OF PUBLIC DISCLOSURE OF INFORMATION

:EOUGH, PAUL G.

.cting Regional Administrator, Region I, U.S. Environmental Protection Agency, John F. Kennedy
ederal Building, Boston, Massachusetts 02203 USA


      SUMMARY

      In the United States, much of  the environmental legislation at the state and national level
ontains elements requiring industry to report on its emissions and stresses the importance of allowing
ie public complete and open access to this data. Public disclosure of this environmental information
i a cornerstone of the regulatory process in the U.S. Experience has shown that the public disclosure
f this data has had a major impact on compliance rates and has led to improved environmental
lanagement
      In this paper, the following points are highlighted:  (1) the regulated community knows that
ley must provide various state and federal agencies environmental data, and failure to provide this
iformation in a timely manner can  result in agency enforcement action; (2) the public has the clear
ght to have access to virtually all of the self-monitoring data submitted at the state and national level
nd  an agency can face sanctions if it does not live up to these  disclosure requirements; (3) the
alease of environmental data such as that under the Toxics Release Inventory Program, has led to
Iramatic reductions in  emissions and has prompted  the  regulated  community to increase  its
participation in voluntary emission reduction programs; (4) efforts need to be undertaken to guarantee
lat  the information  filed by  the regulated community is  accurate and quantifiable; stringent action
eeds to be taken against those who file false or inaccurate data; (5) proactive use of press releases
nd  other forms of publicity when enforcement actions are taken against violators does serve as a
leterrent and can lead to improved compliance rates;  (6)  some statutes in the U.S., such as the Safe
irinking Water_Act at_the national level, do require  public notification when violations do occur and
ie veryfacrtn"aTviolat6rs"are'required"to report to the~public on these violations, has led to improved
ompliance; (7) pollution prevention programs are  taking an increased importance in the US.;  (8)
ommunication of federal enforcement  goals is enhanced through meetings with the states, the news
ledia, industry, and non-governmental organizations.


      PUBLIC ACCESS TO COMPLIANCE MONITORING DATA

      in the United States, data furnished by the regulated community is relied upon not only to
letermine compliance status, i.e., is the source in or out of compliance with applicable regulations,
iut  also to  analyze compliance patterns, target compliance inspections and focus enforcement
ctions at the state and national level. Self-monitoring in some instances is required through legislative
ction or in some cases,  self-monitoring is required under rulemaking authority of the state or national
gency. Since there are hundreds of  thousands of sources to be regulated in the United States,
elf-monitoring and the  reporting of that data to  the responsible agency is the underpinning of this
ation's environmental control program. It simply is not possible to have inspectors check each and
very facility nor would monitoring by an outside organization be feasible in all cases.
      Virtually all of the self-reported  information in the United States is available to the media and
ne public, and the regulated community submitting data  is well aware of this. The mere fact that this
lata can be subjected to public scrutiny in and of itself can act as a powerful motivator. It helps make
ure that business and  industry files  all of the  required information and  in a growing number of
istances acts as an incentive for industry to go beyond mere compliance with the applicable law or
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286                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN"
regulation. Business and industry in the U.S. are increasingly concerned about their public image
They want to be perceived as "good neighbors."
       Regulatory agencies at the federal and state level undertake proactive programs in order t
make sure that the public has access to the data filed by the regulated community.
       Under the Clean Water Act, for example, sources holding an EPA permit to discharge int
waterways must implement as a permit condition sampling and testing programs. These discharg
monitoring reports give detailed data including facts on whether or not the source is in complianc
with all of its requirements and, if  not,  how the source intends  to correct the problem. Quarterl
non-compliance reports are routinely prepared and sent to individuals and groups on a mailing lis
Individuals wishing to receive this data can simply write to EPA and be added to the list. Copies c
these reports are also available for public  scrutiny at each of\the  ten EPA Regional Offices.
       EPA often is required to file annual reports to the U.S. Congress on certain pieces of dat
that it collects under the various statutes.  The agency routinely releases these reports to the publi
as well. Many of the states have similar requirements that make public disclosure mandatory.
       In many Regions of EPA, press releases are issued, briefings are held and reports release
on data submitted by various companies. The key objective is to make sure that the data obtaine
by a public agency actually reaches the public. Often, however, the data released as part of a proactiv
effort is cumulative in  nature—it gives a  general picture of the date from a Regional  or nation:
viewpoint—it is not industry- specific.
       Many representatives of the public want more specific information that pertains to an individu;
company or companies in a carefully-defined geographic area. In the U.S., thousands of request
for data of this kind are released to the public under the Freedom of Information Act or a comparab
state  statute. These laws were established to ensure that the public has total access to regulatoi
agencies' files,
       ~At the national level, the Freedom of Information Act was passed in 1978 and it is clear froi
its history that it was intended as a disclosure law, not a withholding law. In our Region, as well i
in all of tie  other parts of EPA, there is a  presumption in favor of releasing information. The Clintc
Administration, through the  Department of Justice, has  issued  policy guidance that stresses  tr
importance of public disclosure and has tightened requirements on what information can be withhed
       Only a few exemptions are allowed. First, a business or industry can  request that  certa
pieces of data be withheld because it contains trade secrets that would hurt them or help  one <
more of their competitors. Such a request is  not automatically guaranteed. EPA must rule on
case-by-case basis that it contains confidential information that should not be released. If such 2
exemption  is granted,  the confidential business information  must be handled very differently the
other data filed by the  regulatory community.
       In a region like  ours, only a  handful of people who have certain security clearances and wr
have passed a required annual test have access to such information. This group  also must sic
documents  pledging that they will not divulge this confidential information and the penalties f
violating that pledge are very serious. This high .level of security is necessary in order to make su
that this confidential data is not inadvertently released.
       Second, draft (documents and working  papers are also exempt from public access as  a
sensitive enforcement information, individual personnel records, matters of national defense or foreic
policy, internal agency  rules and information exempted under any other statute.
       Handling the requests that come in under this act can be extremely resource  intensive. In o
region, for example, some 2200 requests  for various pieces of data were received in 1993.
       When  the request comes in it must be logged in, assigned a number and input into tl
computer for tracking purposes. This is critical since under the law, the agency has 10 working da;
to respond  to the request. The request then has to be  reviewed by the person in charge of th
information as well as by an attorney. In most instances, it is determined that the information can I
immediately released. In our region, in about 15 percent of the cases, it is determined that portion
or all of the request must  be denied because the information is exempted under the law. EPA mi
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         287
otify the requestor of that denial and state specifically why that data cannot be released. The
jquestor does have appeal rights and in some instances the information ends up being released.
      Once a positive determination is made, the information must be copied and sent back to the
2questor. Often the files are voluminous and it takes a good deal of effort to complete that copying
•rocess. Under the law, EPA can charge a requestor a specified amount for that task. The agency
iust notify the requestor of the estimated cost before the copying gets underway. In many instances,
ie agency is asked to waive those costs since release of the data would clearly be "in the  public
iterest."  Those waivers are granted for the most part except in cases where the requestor is gaining
ie information for a profit-making venture (such as requests from environmental consulting firms that
re trying to get Information to augment its business contacts). While the  act has worked from a
iublic disclosure standpoint, it is a key resource-intensive program because of the volume of requests
aceived.
:      PUBLIC DISCLOSURE OF ENVIRONMENTAL RELEASES

      One telling example of a disclosure law In the United States yielding unexpected benefits, is
ne Toxics Release  Inventory (TRI)  program under the Emergency  Planning  and Community
light-to-Know Act of 1986 (EPCRA). This law requires manufacturers who discharge/use more than
0,000 pounds of any of 320 chemicals or chemical categories, to record and report to the U.S.
invironmental Protection Agency on any releases and off-site transfers. TRI is essentially a reporting
md public disclosure instrument.
      While the Act has worked from a public disclosure standpoint, it is a big resource intensive
irogram because of the volume of requests received.
      Since 1987, EPA has issued an annual  public  report on the data contained in the Toxics
telease Inventory submitted by more  than 22,000 facilities all across the United States.
      When the first report was issued, U.S. regulators, reporting corporate officials and the general
iublic at large  were stunned at the high volume of toxics being released into the environment or
seing transferred off site. This was the first comprehensive report of its kind and it showed that more
nan 7 billion pounds of toxics were being released or transferred off site by U.S. facilities. The public
i/as in an uproar and the release of this data had a profound impact oh the regulated community.
      It should be noted that, under TRI, a company is not required to  reduce their emissions, but
•ecause of the negative publicity resulting from full disclosure of the TRI data, many U.S. corporations
lave embarked on aggressive programs to minimize waste, to use smaller amounts of toxic materials,
tnd to substitute less toxic constituents in their processes.
      Even where the use and release of toxic chemicals is legally permissible per agency standards
ind legal requirements,  public disclosure of the amounts of these releases by EPA has prompted
najor action  by sources to reduce such use  and releases. No facility wants to be identified as a
najor emitter or user of chemicals even when their actions are completely legal.
      The public release of the TRI  data is accomplishing its intended goal.  Each year there has
>een  an overall decrease in total releases and transfers. For example, there has been a 15 percent
iecrease in TRI releases and transfers in the last two years. From 1988 to 1991,  the last year in which
iata  is  available!,  total  releases have decreased thirty-one percent  (31%).  This represents
ipproxlmately 1.5 billion pounds.
      This simple act of reporting and the  public disclosure of self-generated data  has had a
>ersuasive and dramatic effect at U.S. facilities that use and release chemicals.
      As a direct result of the release of the TRI data, national legislation was enacted in 1990 (the
'Dilution Prevention Act) that expanded EPA's role in encouraging industrial source reduction and
ecycling in all of  its regulatory and non-regulatory programs by requiring sources  to report on what
sfforts they have underway to reduce, recycle, reuse or treat each chemical reported on a TRi form.
      The publication of this data has also produced an avalanche of  legislation at the state level
equirlng more specific  information reporting from  companies. Approximately 26 states, through
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288                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
legislation, now variously require sources to report to regulating agencies on how they plan to reduo
their emissions, reduce their use of toxics materials, reduce waste streams and prevent pollution.
       On August 3,  1993, President Clinton signed the Pollution Prevention Order For Feders
Agencies, The Executive Order requires by 1999 that federal  facilities  reduce by half their fixes
emissions and report any releases of toxic pollutants to the public.
       Federal facilities  that manufacture,  process  or use toxic chemicals, are also required ti
publicly  report their  wastes  and releases under the Emergency  Planning  and Communit
Rjght-to-Know Act. Under the Toxic Release Inventory (TRI) requirements of this new law, federe
facilities will report their toxic emissions to EPA and to the states where the chemicals are emittec
The public can obtain this information from a national computer data base and from their respectiv
states.
       On January 6,1994, the Administrator of EPA, Carol Browner, announced a proposal to ad
313 chemicals to the reporting requirements under TRI. One-hundred and seventy (170)  of the ne\
chemicals are active  ingredients in pesticides, This would bring the  total number of chemical
requiring reporting of releases to 633,
       Additional changes proposed in the law would  expand its applicability  beyond reportin
releases from manufacturers to process releases or facilities which otherwise use and release greate
than 10,000 Ibs. More industries will be announced in future proposed changes in the law in Apr!
This proposal would likely seek to regulate utilities, waste processors, publicly-owned treatment work:
service industries and mining.
       Another new tool is  EPA's  33/50 program. This has gained  commitments from 1,19
companies to voluntarily reduce releases of 17 toxic chemicals. As of December 1993, EPA project
a minimum of 354 million pounds in emission reduction  through this program by 1995, This woul
take the 33/50 program more than halfway to its overall goal of 700 million pounds in reduced release:
       The  TRI data      is completely  computerized and the public has full access to ths
information. EPA,  in many regional offices, has undertaken training programs on how to access th
data. In the New Englsmd region, for example, training courses for environmental newspaper, radi
and television reporters were  held, The Region has also trained environmental group leaders an
staff members of elected officials. This type of training is critical to ensure wide public disseminatic
of the material contained in TRI. Under the TRI program, information about the emissions of a sing
company can be  obtained. Emissions of a specific chemical can also be shown. Total emissions
a specific geographic area can also be accessed.
 3     PUBLIC NOTICE AS AN ENFORCEMENT TOOL

       In many instances, the release of self-generated data can be very useful in returning a violati
 to compliance or in actually generating a formal enforcement action.
       As noted earlier, under the Clean Water Act, summaries of the discharge monitoring repor
 filed by  business  and  industry are routinely circulated. Citizen groups also review EPA files
 determine if any violators of the Clean Water Act have been reported by those holding permits.
       As a result, over the years, groups have brought a number of suits against companies f>
 violation of these permits. Approximately 100 cases a year have been brought under the Clean Wat
 Act citizen suit provisions. It is clear then ttiat under the Clean Water Act, a company's own data
 being used to generate enforcement action. This certainly acts as an incentive to companies to ste
 in compliance.
       It should be noted that in many  instances these  citizen suits have been filed because tt
 government at the federal or state level has been unwilling or unable to take enforcement action.
 some instances these suits have helped  the government improve its compliance rates.
       Another form of public disclosure can be found  in the Safe Drinking Water Act.  Under th
 law, water suppliers must routinely sample drinking water, typically once a month, obtain Independe
 laboratory certification of contaminant levels, keep records and report compliance status on a montr
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-IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         289
asis to the regulatory agency. Depending on the seriousness of the violations, sources must make
full disclosure to tie appropriate regulatory agency within 48 hours.
      In addition, if monitoring reveals serious non-compliance, water supply customers must be
Dtified by radio/television broadcast, newspapers and/or by direct mail within specified time frames.
aturally, such disclosure of problems with a water supply can lead to a lot of pressure on the supplier
» immediately correct the deficiency. The consumers will  demand  quick response, Once such
Dntamination is reported, subsequent remediation or corrective action must also be publicly noticed
id reported regularly to the agency until water quality is  restored.
      Water suppliers take extra steps to ensure a safe water supply knowing full well that there will
3 full public disclosure of any problems.
     THE POWER OF THE PRESS

     As noted earlier, the press has access to much of the self-generated environmental data
squired of the regulated community. This can act as an incentive for sources to provide data required
y the government In a complete, accurate and timely fashion. Non-reporting in and of itself can be
amaging to a company's public image and can lead to civil or criminal liability.
      In the U.S., as in many other countries, the fear of adverse publicity acts as a strong deterrent
)  non-compliance with environmental requirements.  Having a positive image  in a  society of
nvironmentaliy-concerned  citizens/consumers  is important  to regulated sources.  In the  U.S.,
ompanies  want to be known  as "green" companies; they do not want to be labelled "polluters."
ecause public disclosure of non-compliance is damaging, this mechanism is used deliberately as
tool by lawmakers, courts, agencies and environmental groups to obtain compliance.
      In the U.S., State and Federal environmental agencies commonly issue press releases about
on-eompliance by individual sources. Agency records of non-compliance, even when based on
3urce-furnished data, are available to the public and often are publicly disclosed.
      In the U.S., EPA's national and regional offices routinely issue press releases and news stories
bout enforcement actions and penalties assessed against non-complying sources. The same is true
f  state  environmental agencies.
      EPA annually issues an Enforcement Accomplishment Report which includes individual case
jmmaries. This is widely disseminated to citizens throughout the country. The agency also reports
n its efforts to Congress and this data is also available to the public,
      Members of the press and environmental groups commonly review compliance information
i  agency files that has been supplied by sources. This too can lead to press-related stories and
ven citizen law suits against non-complying sources.
      Corporations In One U.S. fear bad publicity. It is bad for their image. It can hurt their sales and
damaged reputation can sometimes put a company out of business. The fear of a negative image
s very real, and therefore, many companies knowing that there will be public disclosure of data they
re providing, go out of their way to ensure compliance.
      Business and industry also utilize the press. When monitoring and data show Improvements
r  significant reductions in pollution  levels, U.S. industry  routinely contacts the media to get that
lessage out. Industry has come to recognize that being more open and releasing information on a
mely fashion can be to their advantage.
      In our region, we have found  that the  press can be a major ally in helping to  improve
ompliance. Often after publicizing an enforcement case, we will hear from other  companies who
lay be having a problem and want to talk to us about how they can resolve their noncompliance.
tompanies have often asked us to withhold the issuance of a press release or have asked us if they
an review such a release  before it is sent out to the press. In our region, we issue  a  release on
very enforcement action. Whether to issue a release or  not is nonnegotiable. We do not  allow a
ompany to review a press release before it is.issued;  however, if a facility is cooperating  with us
nd moving quickly to correct the problem, we will give them credit for that activity in our release.
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290                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
We also have received "tips" about similar compliance problems from people who read or hear abot
an enforcement action in the press. We send inspectors out to follow up on these complaints. W
are the only region (among the ten EPA regions) that issues a release on every action. We certain
feel that making this information available to the media - and therefore the public - helps mal<
business and industry want to comply with the law. The press can be a powerful ally.
       It should be noted that efforts are made to promote the practices of business and industi
that  are undertaking innovative programs to  reduce emissions and enhance  compliance.  It
imperative to recognize good achievements as well as penalize those who do not comply.
5      INTEGRITY OF DATA IS KEY           |

       In order to have full and complete disclosure, EPA as well as state agencies, undertake
number of programs to ensure data integrity.  ...  !
       First and foremost, it is important to make sure that all sources that are required to fl
self-monitoring data, do exactly that. The agency aoes take action against those who fail, to file tr
required information and there are stiff monetary/ penalties for those who refuse to cooperate. F<
example, under the TR1 program, more than $34 million  in penalties for not filing timely reports h?
been assessed. Tracking is done under the Clean Water Act to make sure that the required discharge
monitoring reports are filed. When a report is not filed on a timely basis penalties can be assessei
       Making sure that the data is complete and accurate is also important. EPA relies heavily c
data generated by the regulated community. The agency takes a number of steps to make sure th
what is being filed is accurate information. Surprise audits of a company's discharge are undertake
for example.                                         .       .
     .. -The penalties for filing false or inaccurate data are very .severe and can even result in crimin
actions. In our region we have initiated criminal actions against several companies we believed file
false data in order to avoid a showing of non-compliance. The agency has shown its willingness
use  every enforcement tool at its disposal to guarantee the integrity of its data, in 1994, a maj
national effort on data integrity enforcement is planned.
 6     PUBLIC DISCLOSURE HAS LED TO MAJOR POLLUTION PREVENTION EFFORTS

       Having a good environmental record is of primary importance to many U.S. businesses ar
 industry. The regulated community also has come to recognize that a heavy emphasis on enforceme
 at the state and federal level has made it very costly to go out of compliance.
       Businesses are well aware that the data they submit  to regulators will be open to pub
 scrutiny. As a result, many corporations, particularly major ones, have begun to implement ambitioi
 pollution prevention programs. Instead of cleaning up pollution at the end of the pipeline, business
 have begun to implement programs to prevent pollution from occurring  in the first place. Th«
 therefore,  in their report to the regulating agencies, will  show progress. Many businesses ar
 industries in order to get full credit for their efforts, issue press releases or progress reports on thi
 efforts. It is the regulated community itself that utilizes public disclosure when there is a good stc
 to tell. Many U.S. corporations have recognized the importance of disclosing environmental succe
 stories and this has  led to more awareness that it is necessary to implement pollution prevent!!
 programs. EPA and  many states have begun to develop awards programs to give recognition
 those in the regulated community who are doing more than is required under the law or who ha
 found innovative approaches to solving environmental problems.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        291
      PUBLIC OUTREACH

      Press conferences are held to announce major enforcement actions and settlements. Often
lese actions are the combined effort of federal and state enforcement agencies such as the United
tales Justice Department and State Attorney General. Major local television networks usually attend
) provide coverage during prime time news shows.
      In our regional office, EPA almost exclusively takes the lead in coordinating press releases
nd  conferences when two or more agencies are involved. A long-term communication plan  is
eveloped and includes communication goals, contacts in the public and a draft press release. Each
gency involved in  the enforcement case is provided opportunity to make a statement in the press
jlease.
      Press  conferences are coordinated by EPA so that each agency understands what will be
nnounced, when each announcement will be made and who will make the announcement. EPA's
entral role in coordinating press releases and press conferences provides a point of accountability
Dr these assignments and tasks.
      EPA also finds opportunity for outreach in the business trade  press, environmental journals
nd  other small journals. These publications have provided good coverage of enforcement policy,
litiatives and penalty actions.  Most businesses subscribe to at least one trade journal to maintain
n awareness of their competition. These publications provide a major enforcement deterrence when
sed in this manner.
      Many  of our efforts to communicate enforcement activities to  the public include  getting out
nd  personally meeting the public.  Our regional office holds enforcement seminars in several states
Dr the business community. These seminars include state representatives and provide an opportunity
3 communicate federal and state environmental enforcement priorities and goals. They also provide
n important opportunity to  hear how the federal and state environmental programs are perceived
nd  whether we have been effective.
      We meet frequently with representatives  of the  legal profession and the environmental
rganizations  to exchange information and solicit their ideas for improving the federal enforcement
rogranns.
      Visits to specific industries  by the key agency officers  are conducted  and the news media
i invited to tour the facility. Visits take place at facilities which were subject to federal enforcement
ction, returned to compliance and invested in pollution prevention projects beyond the requirements
•f the law. We believe it is beneficial to promote, by communicating through the news media, industry
fforts to go beyond the law in reducing  the amount of waste  they generate. Both the environment
nd  industry benefit, as profit from  these pollution prevention activities is often realized within a year.
      Other successful means of publicizing our enforcement goals and policies include conducting
iterviews with newspaper editors, and television and radio news stations. For example, in our region
IQ conducted weekly interviews with the  Cable News Network.
      Our regional office also conducts seminars on how and when to develop public  information
laterial and 'marketing and distribution techniques.
i      CONCLUSION

      Full and open disclosure of virtually all data supplied to the government by the regulated
ommunity is a somewhat unique feature of the U.S. regulatory process. While some in the regulated
ommunity may not like it, the fact is that  disclosure has brought many benefits to environmental
nanagement in the U.S. The public has come to expect full and open disclosure as  part of the
sgulatory process.
      Communication of federal enforcement programs is enhanced through meetings with states,
idustry, environmental organizations and the news media.
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292                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
       It can be expected that under the Clinton Administration, aggressive efforts will be undertake
to "open up agency files," to make sure that the "customers" of the government, namely the public
are being served and have access to agency records and agency officials. Customer surveys ar
being done by every agency to see how they can better serve the needs of the public.
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-MRP INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        293


HE ROLE OF COMMUNICATION FOR IMPLEMENTING ENFORCEMENT POLICY

EENMAN, J.C.M,

linistry of Housing, Spatial Planning and the Environment, Department of Information and External
elations, P.O. Box 20951,2500 EZ The Hague, The Netherlands


     SUMMARY

     In order to improve the quality and the effect of enforcement efforts, a lot of importance is
teched in the Netherlands to adequate information on enforcement. Enforcers must have a good
sight into the possibilities of communicating information to the public, they must have sufficient
jotivation and they must be given the opportunity to provide this information in practice. This paper
sals with the way in which this takes place in the Netherlands.


     INTRODUCTION

     500 years ago Machiavelli saw two basic means to order society: by taw and by violence.
ater on the English said: "by law and order*. Government is a ruler of society. Public administrators
ave always  showed  a  strong belief in law. Disappointments, however,  are obvious. °0ff with her
sad", the queen shouted at the top of her voice. Nobody moved. (Lewis Carroll, Alice in Wonderland),
 well-known verse of the Dutch poet Willem Eisschot says: "In between dreams and action are legal
bstacies and practical objections". Although  everyone is supposed to  know the law, one  cannot
jtomatically assume this. That is why communication and information are  so very  important,
articularly in the complex field of environmental  legislation. Private  citizens and companies are
Dually essential for the implementation of government policies. The ideal communication policy
louid result  in environmentally-friendly behaviour at the individual level, either from habit or from
snviction. However, that is as much a dream as the idea that individuals will always behave according
) the law. So'laws and communication  depend on one another,  and  the same is true of law and
iforcement. Part of the public will act properly .by conviction, part of the public will abide by  the law
ecause it is a common thing to do so and part will refuse to behave correctly because of individual
sasons (money or other motives of self-interest). Certainly for the latter part of the public enforcement
: inevitable; for trie middle part perhaps as well, but it is probably more effective in combination with
iformation.
      In the case of environmental issues it often concerns large, starkly different target  groups
hich are asked  to change their behaviour patterns. Think, for example, of the large  numbers of car
rivers in the northern countries who must obey the speed limits or who ought to make more use of
le public transport system.
      Environmentally-friendly behaviour is very difficult to enforce in such large and complex target
roups.  A combination of facilities that  make environmentally-friendly behaviour possible or even
jward it, and communication concerning the necessity of a change in behaviour and alternative
jrms of behaviour, are a good deal more effective. The use of information is absolutely essential in
Diving many environmental problems.
     This paper explores three aspects of environmental communication:
      • What functions does information have in the environmental policy?
      « The role of communication in the implementation of enforcement tasks.
      • The Dutch information approach in the enforcement of environmental laws.
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294                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN


2      THE FUNCTIONS OF INFORMATION IN THE ENVIRONMENTAL POLICY

       Information can have various functions:

2.1     Make government policies public

       The first and most common function is to make government policies public, normally by mear
of press releases, press conferences, interviews, lectures etc. that  explain the ins and  outs
environmental policies and measures.

2.2    Public service

       Dutch legislation  is very complicated and environmental  laws are no exception. As soon i
a law comes into effect the Dutch government is obliged under the Public Information Act to provic
adequate information on this  law. As  a public service, the government must give proper informatic
to the various target groups that are  involved in this law by means of written information, meetinc
etc.
       Besides these two functions aimed at providing correct information on policy developmer
and  measures such as laws,  there is a third function:

2.3    Information as a policy instrument

       Information as a policy instrument.  Information  can increase  knowledge of change tl
attitudes of certain target groups, or sometimes to some extent it can change behaviour patterns ;
well. Enforcers should correct certain forms of behaviour directly, but we must realise that changii
wrong behaviour is  only possible by first discovering the real causes of wrong  behaviour. One
those causes can be insufficient enforcement.  In that case, information will be of little help. Whi
there is a shortage of knowledge or motivation, information can be effective.
 3     THE ROLE OF COMMUNICATION IN THE IMPLEMENTATION OF
       ENFORCEMENT TASKS

 3.1    Preventive and repressive enforcement

       There are two types of enforcement: preventive enforcement and repressive enforcement.
 the case of preventive enforcement there is active supervision on following up rules in order to obfe
 compliance with them. Here it is not a question of specific offenses against the law.  Advice ai
 information are important activities.
       In the case of repressive enforcement, misbehaviour is suspected or it has taken place a
 will be punished. Effective preventive enforcement, including information, means less repress!
 enforcement, In other words, information can improve enforcement activities. The enforcement
 environmental laws is not only necessary in certain target groups but it also enhances the credibi
 of environmental policies. Publicising the results of enforcement activities is important. It makes visit
 to the public at large  that  the government is taking  the  law  seriously.  Misconduct,  or ev
 environmental crime, is made public as a warning to others.

 3.2    What is the chance of getting caught, and how can this be increased through information'

       This brings me to a very interesting aspect of communication policies for enforcement: t
 phenomenon of subjective chance of getting caught. A distinction can be made between object
 chance of getting caught - which is the actual chance of getting caught,  e.g. for illegally dumpi
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IIRO INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         295
lemical waste - and subjective chance of getting caught. The latter is an individual's perception of
e chance of getting caught. This may differ from the actual chance,
     Information can increase subjective chance of getting caught and make people more aware
general, An interesting example of this is the experiment on Dutch roads to warn people in advance
a radio and television that there will be a speed trap the next day  between 9 am and 9 pm on
Jrtain highways. Thus warned, drivers appear to observe maximum speed limits much better in the
lecified stretches of road, and that after several repetitions they behave better structurally as well.
je to the  announcement of  intensive speedcontrol actions, the traffic-police noticed important
iprovements. In about one month time the average speed went down with 7-8% and the number
id length of congestions reduced with respectively 30 and 43%.
     Another example is that inspections  of illegal crop protection chemicals in horticulture are
mounced in advance. This prior warning causes many market gardeners to quickly hand in illegal
lemicals. When the inspection starts several weeks later, and prohibited chemicals are  found, the
arket gardener is served with a summons. As the saying goes: "Forewarned is forearmed".
     Making enforcement activities public in advance or showing  the results of  these activities
eans increasing the subjective chance of getting  caught.

3    The importance of providing examples

     There is a choice between showing examples of good behaviour and showing examples of
id behaviour. Although law enforcement agents  seem to me to be focusing more on catching
fenders and showing these results,  learning  theories hold that  showing good examples of
wironmentatly-friendly behaviour is more effective.  Strengthening the  example  function  is an
iportant communication objective.
     In general it can be said that providing feedback of enforcement activities is important for the
iforcers themselves and for the target groups such as producers of chemical waste. To give warnings
' showing cases of unlawful behaviour is useful once in a while, but showing good examples and
>ring the results of good behaviour are more effective.
     The  general conclusion is that  communication strategies  are more  effective in  preventive
iforcemert activities thanjn repressive ^actjyitiea  				

4    Communication must be credible

     Strengthening  the symbolic aspects of policies by showing  the awful dangers of bad
shaviour, improving the subjective chance of getting caught, communicating the positive results of
iforcement activities,  or even  putting someone in the pillory, can be  useful but they must be used
th caution. For example, if an inspection is announced and people find out it is a fake, one loses
edibility. The same is true when one accuses a company of environmental misconduct in public
id later on in court one cannot make the case stick because of lack of evidence: again one loses
edibility. In the Netherlands it  happened that procedural errors even caused a judge to mitigate the
rtence. Naturally, this has a negative  effect on the enforcement policy.
     Making enforcement activities more visible can be very useful, but beware of  the vague
jrderline between showing symbolic actions and providing information on real and proven activities.

5    The importance of information according to enforcers

     We asked enforcers which type  of policy instrument they think contributes most to a proper
ivironmental policy. It resulted in the following picture.
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296                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
Table 1.  Importance of Policy Instruments

Environmental care within companies
Environmental technology
Agreements
Information
Subsidies
Regulations
Licensing
Enforcement
In Practice
4.8
5.7
5.9
4.0
5.4
4.0
2.3
3.0
Ideal
Situation
3.2
4.4
5.8
2.7
5.9
3.9
3.3
2.2
Difference
+1.6
+1.3
-0.1
+1.3
-0.5
+0.1
-1.0
+0.8
       Conclusion:
       •  Enforcement and licensing are considered the most important activities according
          to enforcers, followed by information.
       «  To Utilize more often environmental care and technology is useful, but also it seems
          ideal to enforcers to give more priority towards information and enforcement.
       •  Overall one  can  conclude that according to enforcers in the  Netherlands
       .   enforcement and information are key activities within environmental policies.


 4     THE DUTCH INFORMATION APPROACH TO ENFORCING ENVIRONMENTAL LAWS

       Before explaining the Dutch information approach to enforcement policies, I  should menti
 that information officers  in the Netherlands have learned to think analytically and strategically. Th
 do this in  terms of information objectives, target groups, information resources and messages. Wh
 a certain  problem must be solved, it often happens that someone says to the information offlc
 "Make me a nice brochure". Having learned from practice, the information officer will then immediat
 ask: "Why a brochure, for what purpose, about what subject, for whom and when?" Very ofter
 simple brochure is not the correct action.

 4.1    Three-track information strategy

       In 1985 an intensification programme on environmental law enforcement was initiated. As p
 of this programme, a general enforcement information strategy was developed, since it was cl<
 that without information a successful enforcement of environmental laws is hard to imagine. T
 information strategy was based on a three-track strategy:
       •  To inform and motivate enforcers. Provide enforcers with information on legislation
          and on the various branches of industry that they must monitor.
       •  To motivate administrators  and government officials in order  to achieve political
          priority for (local) enforcement programmes, with enough  manpower and  financial
          resources.
       •  To inform industry and  companies that must  comply  with, for  example, the
          Chemical V/aste  Act by  providing them with very practical information  such as
          where to dispose of chemical waste.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         297
     This strategy basically comes down to a preventive enforcement approach with the aid of
formation.

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298                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
enforceable. It often happens that a law is too detailed and not sufficiently oriented towards actu?
practice, with the result that it is difficult to enforce, A solution might be to increase and improve th
exchange of information between enforcers and the legislature and between enforcers and the publi
or companies.

4.2    A public information strategy

       Informing the public  is a prerequisite for obtaining general  support. Public priority for th
environment in general and  public interest in the enforcement of environmental  laws in particul;
exerts a great influence! oh the political priorities. In the Netherlands there is a lot of effort to increas
general awareness and to influence the commitment and attitudes of the general public. Researc
under the Dutch population learned that the personal involvement towards environmental problerr
increased rapidly  from about 1985. At the moment environmental problems are considered mo
important to the public together with insecurity. Table 2 shows the 7 most important social matte
amongst which quite a number of environmental problems.

       Table 2.  Social Problems
Personal
Involvement

Environmental problems
Public insecurity
Industrial pollution
Public Health Service
Acid rain
Car traffic
Greenhouse effect
1987
33
43
31
47
29
23
—
1992
59
53
50
49
40
39
38
Willingness To
Action
1987
20
14
20
15
16
7
—
1992
29
19
22
18
19
12
17
       In terms of communication policies it \s interesting to notice that in the Netherlands t
 awareness and personal involvement with environmental problems in general is rather high. Furfr
 improvements are ha'dly possible. But research also shows that the willingness to take action
 environmental issues is still lagging  behind.  Environmental aspects hardly influence individi
 behaviour and there is little knowledge about possible alternatives. In the coming years this requir
 a lot of communication efforts.
       In October 1990 a general environmental information campaign was launched. It functic
 like a sort of umbrella for all information on environmental issues directed at the public. Its logo a
 slogan "A better environment starts with you" is very recognisable and therefore very well-known
 the public. We are not going to use the logo and slogan for the information provided to enforcers
 administrators because we consider them partners in monitoring compliance. It would not be corn
 to put them on the same level as the general public or companies.

 4.3   The importance  of information for enforcers

       information for  enforcers should deal with environmental  laws, decrees  and standai
 because they must know what to enforce. Furthermore, they must have information on product
 processes (all  ins arid  outs of the industry) and  information  on the  instruments of enforcem
 because they must know how to enforce.
       In the second part of  1992 we did research under enforcers on the levels of knowled
 attitudes and behaviour  (KAB) towards enforcing environmental laws. The average KAB variated fr
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oderate {police!} to reasonably good. 61% Of the enforcers said that they have enough information,
 particular the police enforcers  need better  information (-facilities).  Enforcers prefer practical
formation concerning their tasks  by various means. Letters and meetings are considered most
fective but also written Information material is needed. Trie Ministry of Environment is the most
iportant source of information for  enforcers,

      Table 3.  Levels of knowledge, attitudes and behaviour of enforcers (1992)
                            Knowledge           Attitude           Behaviour
Police 0
Judiciary ±/+
Provinces ±
Municipalities ±
+/- 0
±/+ ±/+
0 ±/+
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300                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL
         A readership survey showed that the magazine meets  information  needs. A
         characteristic feature of this magazine is that it does not necessarily express the
         opinion or policy of the  Minister  but that there  is space for other viewpoints,
         recognisable from the enforcer's position. As well as a wide variety of practical
         information for enforcers on policy, regulations etc., the magazine offers a platform
         for the exchange of experiences and for showing examples  of  successful
         information and enforcement campaigns. The magazine is free for all those who
         are in charge of enforcement.
       • There  is a range of brochures  containing, for example, information concerning
         legislation on dangerous  chemical waste aimed at various branches of industry.
         Some 400,000 copies have been distributed.
       • We also publish brochures or reports for enforcers. These series of reports contain
         information on acts and decrees, branches of industry, instruments of enforcement
         and the results of enforcement.  Up to  now some 55 of these reports have been
         published.
       • There is also a pocket book entitled Enforcement of environmental legislation.

       I  have shown you a  number  of  examples  of information in the Netherlands aimed
enforcement. We believe that  information plays a very important role in this as it can contribute
the reduction of repressive enforcement. Notwithstanding, I wish to warn you not to regard informal!'
as a cure for all  ills. We, too, have had our share of disappointments in this area.


5     CONCLUSION

       I would like to conclude by saying that the use or provision of information by enforcers requir
that they:
       • Are well aware of the importance of good enforcement information.
       • Are motivated to give attention  and spend time to information and that they are
         offered the opportunity to just that.
       • Are able  to handle the  double role  of information provider and, if necessary,
         inspector.
       • Have the knowledge, resources and skills to provide information adequately.
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IEDIA CHALLENGES IN ENVIRONMENTAL ENFORCEMENT:
HE CASE IN NIGERIA

WEJAMOMERE, O'TIMEYIN 0.

ousing and Environment Correspondent, The Guardian, Lagos, Guardian Newspapers Limited,
utam House, Isolo, P.M.B. 1217, Oshodi, Lagos, Nigeria


      SUMMARY

      Prior to 1988,  the  Nigerian media had  mainly  concerned itself  with issues of local
ivironmental sanitation.  A few opinion features, especially at the occurrence of a disaster or on
sues of soil, marine, and forest resources management  also appeared in the print media or as
ocumentaries on the broadcast media. But the disclosure by the media of a toxic waste dump in
ie  port town of Koto catalyzed its advocacy role in environmental compliance monitoring and
nforcement. This paper illustrates with two case studies the local media's attempt to move from the
aditional role of awareness  building to generating community participation; achieving mass
ducation, attention and support;  and earning enough  confidence and the status required  to
uarantee easy access to environmental information. It also highlights the drags on the way of the
ledia.
      NATIONAL FRAMEWORK FOR ENFORCEMENT AND COMPLIANCE MONITORING

      Following the disclosure of a toxic waste dump at Koko, a port town in the Delta of the Niger
:iver, the Federal Environmental Protection Agency (FEPA) was created by Decree 58 of 1988 as the
utonomous body  with the overall responsibility for protecting the Nigerian environment.
      The agency has continued to evolve a structure and put in place instruments of intervention
i order to arrest Ihe spate of environmental degradation nationally. Priority enyirgnmenta! problems
'hich required the agency's immediate intervention were highlighted in the National" Policy on the
nvironment launched in November 1989. By 1993, several regulations for environmental protection
ad been articulated and promulgated into law.
      Following ihe merger of FEPA with the Natural Resources Conservation Council (NARESCON)
nd the departments of Land and Natural Resources and of Erosion Control—both of the Ministry of
.griculture, Water Resources and Rural Development—the new FEPA, under the FEPA Amendment
lecree 59 of 1992, now also has responsibility for implementing the National Conservation Strategy.
he amalgamation which took effect in August 1993 has tinkered with the structure of the erstwhile
gency, making it very unclear.
      Hitherto, however, the agency  had operated  six departments, with  the Inspectorate and
riforcement Department (established in 1991) being responsible for standards, regulations, and
sgistrations, including the issuance of permits and accreditations; chemical tracking under the Prior
iformed Consent (PIC) and Chemical .Notification Procedure for Chemicals in international trade and
azardous waste traffic using Nigeria's "Cradle to Grave* strategy; and compliance monitoring. A
'ublic Complaints Ombudsman Unit harmonizes the relationship between the three divisions and the
'Ublic.
      The Planning and Evaluation Department was  responsible for environmental education and
.wareness, information and databank, publications, and liaison with relevant local and international
istitutions  and non-governmental  organizations (NGO), In collaboration with the Environmental
schnology Department, it has acquired the necessary  machinery for the establishment of a National
Environmental Information Management and Monitoring Network since October 1992. It is also the
Deal point of the Infoterra services of the United Nations Environment Programme (UNEP), set up to
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302                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
handle the exchange of data and other environmental information with other organizations an
individuals worldwide.
2     THE MEDIA AND ENVIRONMENTAL ADVOCACY IN NIGERIA

2.1    Overview of the media

       The communication media as it is known worldwide has undergone something close to
revolution in Africa, and indeed in Nigeria.  The present state of journalism, especially print journalist
which began about a century ago, shows that standards have improved torn what it used to b(
particularly in the areas of infrastructure, equipment, and personnel. However, perhaps because t
the general poverty of the continent, an unconducive working environment  still pervades  the industr
Operatives lack tools and equipment as well as job security and opportunities for training.
       They are, however, expected to produce several editions of national newspapers in a counti
with  a diverse population  in location,  language, taste, and  interest and with a  very errat
communication system. Besides, the print  media exhibits a retinue of private investors whose intere
vary from profit motive to the gains of political propaganda.
       The government which had held the sole rights to the broadcast media only recently grante
licences  to the private  sector under  the private  broadcasting  scheme through  the  Nation
Broadcasting Commission (NBC). The private broadcast stations, however,  have yet to commenc
operation.
       However, the prevailing highhandedness of government is the most worrisome fear hangir
over the media in Nigeria. The official control of the media, through various restrictive press-curbir
'legislations, "Cornels ridiculous "as stating" punishments for "publications  which  may embarras
government officials, put journalists in a position where they are extremely self-censored. There a
others called security Acts which allow detention without trials. Public officers and organizations als
engender repressiveness and intolerance.  Hence, ministers or heads of government parastatals an
of course, operatives in the private sector seek coalitions with sycophants. You therefore find a cowe
journalism unable to question authority.
       Under these precarious circumstances the Nigerian media  has striven to establish itself i
one of the most free and vibrant in Africa. The public has also come to recognize the important re
and power of the media in the sustenance of civil society, especially for its recent role in promotir
democratic norms. Certainly the fate  of the media is changing  for the  better,  towards great
liberalization of media policies and empowerment of communicators.
 2.2    Media specialization and advocacy

        Unlike the dominance of ill-trained job seekers who, in times past, chose the profession i
 a last resort, journalism is now marked  by specialization and clear-cut division of labour, with
 profusion of university trained staff. More journalists are now assigned to special beats, perhaps
 response to the increasing competition for the market: advertisement and sales share. Currently, tl
 Nigerian mass media has developed such specialized beats as Health, Science, Business ai
 Economy, Tourism, Transport and Aviation, Education, Appointments and Vacancy, Women, Childre
 and Property.
        The Guardian, has catalyzed the development of these specialized units. Its Property Des
 which started as a^focus on the  real estate industry, soon took over in more detail  issues of tl
 environment, architecture, building contracts, materials, housing, and physical planning in 1991.
        The discovery in June 1988 of a toxic waste dump in the port town of Koko stimulated greal
 attention and focus on environmental issues within the specialized science beats in both the broadcs
 and print media. A few periodic magazines also took their root in the toxic waste episode. Preparatio
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         303


>r the  1992 United Nations Conference on Environment and Development (UNCED) further fueled
ie momentum generated.
      The specific challenges of the media in environmental enforcement are best highlighted by
vo case studies of national experiences.

.2.1   Case Study 1:  Media and international enforcement and compliance monitoring

      Nigeria's experience with international enforcement and compliance monitoring had been as
 third, but concerned, party prior to 1987. By a letter sent by the Nigerian Student Union, Pisa Branch
taly), to the media, the nation became aware of its vulnerability to the international hazardous wastes
affic/trade. The wastes were first shipped to Koko by a Danish ship, MVDanix, in 1987, with another
onsignment of about 1,000 tons being shipped into the country aboard MV Line, a West German
sgistered ship.
      Two significant reactions came  from the media upon the receipt of the said letter. The first
'as the rhetorical questions raised by The Vanguard newspaper in a story asking  if toxic waste had
een dumped in Nigeria. Security agents  promptly "visited" the  newspaper house questioning the
ditor, perhaps in an attempt to locate the source of the story. It should be recalled that the Nigerian
overnment had been following development in the Republic of Benin, Nigeria's western neighbour,
(here plans were on to bury about 5 million tons of toxic wastes  annually at a border fishing village
nown  as Agege,  located within the coastal swamp area by the mouth of the river Oueme.
      The Guardian, in April  1988, had reported the Nigerian government's concern over the
•reposed shipment by Sesco-Gibraltar, a British Company affiliated with South Africa, following a
ontract signed on January 12, 1988,  with the. Republic of Benin. The shipment was expected to
?ave a French port'near Marcoule, southeast of Paris. Immediate action was taken by the Nigerian
lovernment to verify the allegations, made by a Brussels-based ecological group, Entente
liropeenne Pour L'environment, and avert the action.
      The Nigerian External Affairs Ministry secured a resolution  of the Organization of African Unity
DAU), which condemned the dumping of waste in Africa and demanded that African countries that
.ave signed contracts to receive hazardous waste should terminate such contracts. It was in the heat
if this that it became apparent that toxic waste may have been dumped in Nigeria (1).
      The second significant reaction was the dispatch of two reporters by The  Guardian on what
/as tagged "Mission Patriotism" to verify the allegation. The journalists found "a huge dump of drums,
teel cast, huge poly-propylene bags  and containers marked 'R1, an  acknowledged international
nethod of labelling industrial waste products."(2)
      The 8,000 drums of about  3,500  tons of deadly substances had been imported by one
Suanfransco Racffeli, an Italian businessman, with the connivance of certain persons under the
ctitious name of "Iruekpen Construction Company", which had leased the premises of an ignorant
illager, Sunday Nana, 67, at a monthly fee of N500.00 ($50). It was here that they dumped the wastes
see Appendix 1  for a list of the substances dumped).
      The grisly details of how the ignorant Nana family had drunk water from some of the containers
ised to store the waste, and the subsequent death of Mr. Nana and its likely causes barely three
•ears after the wastes were dumped in his backyard, were reported by the media. The inhabitants
)f the town also never knew how dangerous the cargo was although it produced "so  much heat" it
>urned rubber gloves when they assisted in unloading the cargo on arrival.
      In fact, beitween June 1988, when  it was first reported, and the greater part of the following
\wo years, 1989 and  1990, the issue of the toxic waste dump found in Koko engaged the attention
>f the media. In a nutshell, the media could be said to have been at their peak and most informative
sra on  environmental issues during this period.  Their stories were in-depth although  sometimes
efuted and later updated  in follow-up  editions.  Essentially, the scope of coverage and contents of
he articles and news stories range from the genesis of the episode, through the various legal actions
aken to achieve the  evacuation of the wastes, to the assumed effects of the dumps on the health
)f residents of Koko.
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 304                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN"
        For  instance,  in very lucid reports, the media informed on the environmental restoratioi
 settlement process involving the evacuation of the over 8,000 poisonous chemicals, and about 2,00'
 tons of contaminated soil within a 500-metre radius and 60 centimetre depth of the dump site; thi
 acquisition of Mr. Nana's house as a research out-station, after necessary repairs and modificatior
 and his compensation with a freshly built four-bedroom bungalow on a plot some distance from th
 site.
        The reports of esxperts from Japan, the United Kingdom, and the United States on the wastes
 the absence of legal restriction and reasons why the importers of the waste could not be prosecute"
 under the then-existing  regulations; the  intention  of the community to sue  the government  fc
 endangering their lives; the plans of the Federal Government to sue the Italian Government at th
 International Court of Justice at the Hague, Holland; and the consequent actions of the Feden
 Government in championing  campaigns against  further waste  dump  internationally were als
 published (3).
        In fact, within two months  in 1992, about 20 worldwide alerts of proposed transboundar
 shipments of hazardous wastes towards ttie Nigerian shore were reported. These media actions hav
 created an  "enforcement presence" and an atmosphere of deterrence.

 2.2.2   Case Study 2: Media and national enforcement and compliance monitoring

        Nationally, enforcement and compliance monitoring activities are still in their infancy. Apa
 from a few  initial site visits and field citations, which attracted press coverage, the role of the medi
 has been minimal. However, on the release of the  regulations on waste  management,  pollutio
. abatement, effluent limitation, and environmental impact accessrnent (EIA) requirements, journalist
 in search of sensationalism have attempted to generate debate over certain situations only to b
. informed by FEPA of a moratorium to enable industrialists to put in place the technology to contrt
 the level of waste discharges.
        However, having  researched the environmental implications of a real estate development c
 a swampy estuarian site at the borders of  Lagos and Ogun  State,  The Guardian was und<
 self-censorship because of the political implications of the findings to the project. However,  evenl
 soon led to the disclosure of the findings.
        About ten years ago,  Hie Ogun State government, through the Ogun State  Property an
 Investment Company (OPIC), conceived a 10,020 hectare Isheri Estate Project. The project was I
 be built on  land encompassing the Ogun River flood plains, especially the low-lying tributaries of th
 Ogun River including Ofiki, Opeki, and Ose, earlier earmarked to  sustain a number of dams, wit
 suitable reservoir operation to guarantee the future water requirements of metropolitan Lagos,
        The project offers single residential plots that could be up to a half acre in size;  about A
 plots for nursery, primary, and secondary schools; 30 plots for clinics, health centres, and hospital;
 200 plots for service industries (hotels, petrol stations, restaurants, and supermarkets);  and 20 polk
 posts and 2 main police stations. It was also designed to provide  18 postal agencies and one ma
 post office, a telephone exchange, an electricity sub-station, two memorial parks, and two mots
 depots. The "new town" was to traverse the  Lagos-lbadan inter-city, four-lane traffic route.
        Several groups had raised questions over the OPIC Estate offering, calling attention to tr
 environmental implications of  the development on  the swampy estuarian site  area. Most of thes
 groups, including Federal and Lagos State officials, professional bodies, and environmental  NGO
 however, could not bring up the issue for  national discourse. An attempt by officials of both Lagc
 and Ogun States to outline a code of conduct over common problems of urban development alor
 their borders in 1981 was shortlived.
        In 1991, a cycles of the seasonal flooding of the Ogun River was experienced, less than a ye;
 after OPIC moved to the site to commence work on the project. The flood disrupted work and renewe
 the issues. The Guardian at a public forum in September 1991, had sought the views of the Lagc
 State Commissioner for Environment and Physical Planning on the  project. His response, which wj
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    INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         305
ported in The Guardian on the following day, brought the issues to the platform of national discourse.
le earlier, unrevealed research details were used as backup for the commissioner's comments (4).
     Before long, the desk officer of the then,newly created  NARESCON invited The Guardian for
discussion on his intention to call a colloquium on the issues raised. The colloquium was held in
scember 1993, two years after the press report. From the initial discussion it was resolved that such
colloquium would require a working document and the attendance of all interested  parties. The
ficer was given the names and contacts of the groups who assisted in the research for the story,
id with its retinue! of officers NARESCON conducted a site study and produced a document entitled
icological Impact Assessment of Real Estate Development on Ogun River Flood Plain at Isheri".
     The communique of the colloquium (Appendix 2), attended by OPIC officers, revealed that a
oper EIA may not have been conducted before the project's commencement. NARESCON has
nee been  merged with FEPA, but the newly established department—Conservation Monitoring
sntre—is to supervise the colloquium's recommendations which observed that  the indigenous
jmmunities may not have been adequately involved in the planning process, and that while the
heri-Olofin community welcomed the development project, the Ibafo Community had expressed
rong objections  to the scheme.
     A section of the colloquium believed that at the completion of its recommended environmental
Jdit a large percentage of marine biological diversity may  have  been endangered, creating an
:ological imbalance. They stress the necessity for the conservation of a large portion of the site
hile restricting any development to the inland areas.
     CONSTRAINTS ON THE MEDIA IN ENFORCEABIUTY AND COMPLIANCE MONITORING

     From the foregoing, several factors can be identified as constraints on media in enforcement
id compliance monitoring in Nigeria. These are:
     •  Tendency for authorities, leaders of communities, and or journalist to connive with
        polluting bodies and therefore conceal information.
     •  Private sector  influence over the media through law  suits  and advertisement
        control.                           i          	          _
     •  Repression of the media by  legislation and various forms of censorship, which
        limits or excludes the possibility of uncovering controversial issues.
     •  Absence  of the right status  for  journalists to endear themselves to sources of
        information, and restrictive policies of government and industry on press interviews.
     •  Lack  cf  proper training  for specialized journalists  in  the language  of  the
        environment (technicalities and terms), leading to errors  which further alienate the
        few available sources from disclosing information.
     •  Traditional attitudes and culture of researchers and scientists, which restrict them
        from granting press interviews for fear of their research findings being  misquoted
        or misrepresented.
     •  The media's tendency to satisfy  its commercial interest at the expense of social
        and scientific interest.
     •  Over-sensationalisation of certain  issues leading to distortion.
     •  Inaccuracy in reporting by way of estimation,  accessments, or statements which
        distort facts and lead to loss of credibility.
     •  The problem of editing to optimize space, and the urgency to  meet deadlines
        which sometimes reduces the media: houses' ability to sustain public interest and
        spur the community to action. This also arises from the media's oversimplification
        of complex and important issues.
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306                .         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
       • The absence of a national language which can coalesce the over 490 languages
         and dialects and ensure the transference of indigenous values and value systems.

       However, the various strengths of the media still present it as the first platform in the moveme
from public disclosure to public accountability. These strengths include:
       • Its ability to reach more persons at less cost and to reach out to diverse persons
         and interest groups at a time.
       • Due to its diversity of coverage, even persons who would normally not patronize
         environmental information are  exposed to it in their  search  for other  kinds  of
         information.
       • Where properly written and illustrated,  media information  is easier to read and
         comprehend when compared with scientific and technical documents.
       • The  speed at which the media reaches its audience and its ability to overcome
         barriers of culture and language, especially through pictorial illustrations which also
         give it strength over other communication medium.
       • Its ability to create an "enforcement presence" and an atmosphere of deterrence
         due to polluters, especially industries, fear of the stigma of bad publicity.
4     CONCLUSION

       Beyond the use of the media for announcements and information distribution, therefore,
ability to deter potential violators through public pressure for compliance offers  it as an ally
.compliance monitoring and environmental enforcement. To harness the  momentum  alreai
generated, "enforcement" authorities may cohsidefthe" issuance of regular press releases either as ;
incentive for facilities iwho meet inspection standards or as a deterrence for their non-compliance,
is essential to make press releases a statutory aspect of all enforcement action.
       However, to ensure that the press releases satisfy the mutual needs of the enforcers and tl
media, the issuing department must recognize that the media has its limitations in the depth ai
extent of coverage it can offer. Consequently, the releases must be made relevant to the gene
public and be of sufficient current interest. The message  must also be considerably useful to t
general public, unambiguous, and written in simple, non-technical terms.
       It  is also important that  the message is illustrated with examples and diagrams, whe
appropriate, and is made as entertaining and attractive as possible. There is the paramount need •
authenticity, quoting the right authorities were possible. Perhaps more importantly the release mi
be endorsed by an appropriate officer  of the issuing agency.
       It is a challenge to the creativity and dexterity of the environmental community to harness t
various strengths of the mass media to reach a greater number of the people.
        REFERENCES

 1. Akingbade, T, On the Trial of the Environment, Triple 'E1 Systems Associates Ltd., Lagos, 195
   pp. 1-24.

 2. Ogbeide, E. and Ogunseitan, S., The Guardian, GNL, Lagos, June 5,1988, p. 10.

 3. Uwejamomere, O'l, A Thematic Overview of Media Consciousness of the Environment in Niger
   1985-1992 Contenl: Analysis and Case Study of Four Newspapers, a commissioned paper, Octal:
   1992, pp. 7-8.

 4. Uwejamomere, T, The Guardian, GNL, Lagos, September 1991, pp. 13, 22.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                             307
     APPENDIX 1: SUBSTANCES DUMPED AT KOKO
irms
Substances
Notes
.R.R
. Giveaio Su LEGMANO,
dILAU-ITALY)

APROS
MRTERA, ITALY)

XDMETA
.AINATE, ITALY)

AGHIM INCHIOSTRO
:LORENCE, ITALY)

AVIDSON
3ENOA, ITALY)

AVID
HOMO, ITALY)

EIFIS
3IVISELLO, BALSAMO,
'ALY)

OMMER
/IANZA, ITALY)

'NO-CYANAMID
NORWAY)

IOECHST
/VEST GERMANY)

IAYER
/VEST GERMANY)

JFOCTIRUSBV
HOLLAND)

-1.P.C
i. GIORGIO SU LEGNANA
MILAN, ITALY)

V.I.
V1ILAN, ITALY)


V.I. SOUTH
SAIVANA NAPLES, ITALY)
DIMETHYL FORMAMIDE
VITHAWES


WASTES FROM
NEWSPAPER INDUSTRY

NOT STATED


NOT STATED


SOLVENTS AND
COATING WASTES

COATING WASTES
PESTICIDES


METHYL MELAMINE
BUTHANOL, PHENOL,
CRESOLS
REFRIGERATING LIQUIDS
RESINS
ETHYLACETATE
DI-METHYL FORMAMIDE

CATOLAC
POU-URETHANES
POLI-CHLOROBIPHENYL

LEAD-BASED COATINGS
HIGHLY
INFLAMMABLE
 Source: Akingbade, T, 1991.
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308                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'


       APPENDIX 2: COMMUNIQUE OF THE COLLOQUIUM ON OPIC REAL ESTATE
       DEVELOPMENT IN ISHERI HELD ON DECEMBER 17,1993

       A group of recognized scientists and academics, from different disciplines and institution
and two communities (Isheri and ibafo communities), met for a one-day colloquium to discuss th
Ecological Impact of Real Estate Development on Ogun River Flood Plain.
       The participants observed that:
       • The colloquium  is a novelty  which has  been tried in  four other project and
         ecological problem areas in Nigeria,
       • An EIA may not have been done for the scheme.
       * Lack of adequate communication between the various government agencies may
         have impeded collaborative efforts.
       • The communities were not adequately involved in  he planning process of the
         proposed project.

       The colloquium recognized that:
       • While the Isheri Olofin Community welcomes the development project, the  Ibafo
         Community has strong objections to tiie project,
       • OPIC activities affect the biotic and abiotic components  of the  Isheri flood plain
         ecosystem, leading to various socio-economic and  socio-cultural consequences
         on the communities.
       • The colloquium's attention was drawn to the legal aspects, enumerating laws and
         decrees both recent and those promulgated some decades ago.
	... .• The participants also recognized that the Federal Government of Nigeria (FGN) has
       -  now put in place an EIA Decree No. 86 of 1992.

       RECOMMENDATIONS

       The colloquium therefore resolved to recommend as follows:
       • The Federal Government should initiate dialogue among the various interest groups.
       * There is the immediate need for an Environmental Audit of the Project.
       • All future development projects should take cognisance of the EIA Decree No. 86
         of 1992.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        309


LANN1NG AND EXECUTING STRATEGIC ENVIRONMENTAL ENFORCEMENT
I1TIATIVES: MAXIMIZING ENFORCEMENT IMPACT

\N HEUVELEN, ROBERT I.1 and FONTAINE, PETER J.2

Director, Office of Civil Enforcement, U.S. EPA
Attorney and Special Assistant, Office of Civil Enforcement, U.S. Environmental Protection Agency,
31 M Street, SW, Washington, DC  20460 USA


     SUMMARY

     The environmental enforcement program of the  United States Environmental  Protection
gency (EPA) increasingly strives to maximize the environmental results and deterrence impacts of
iforcement actions  through strategically targeted  environmental  enforcement  initiatives. Special
wironmental law  enforcement initiatives can be designed to address patterns  of noncompliance
smonstrated by  discrete industries,  processes  or multi-facility corporations. Enforcement case
itiatives have also been used to encourage sources of a specific individual pollutant to reduce their
scharges and emissions which may present Common, discrete or widespread human health and
wironmental problems. Critical and sensitive geographic areas or ecosystems  that are burdened
/ loadings from industrial sources of pollution are  also possible focuses for special enforcement
itiatives. This paper describes several recent EPA enforcement initiatives and explains in detail the
ements necessay to  successfully plan and execute these enforcement strategies.


     INTRODUCTION

     In the U.S., protection of the public health, welfare, and the natural environment from risks
Dsed by industrial pollutants, commercial chemicals and pesticides is primarily the responsibility of
PA. To fulfill its mission, EPA develops, implements, and enforces  pollution  control standards
jthorized by  nationalenvironmental  laws passed  by theU.S; Congress.  EPA has a variety of
dministrative enforcement tools  available to respond to environmental violations, including the
jthority to issue  orders, notices of violation  and administrative complaints assessing monetary
snalties. In cases  of more serious environmental violations, EPA has the  authority  to  refer
iforcement actions to the U.S. Department of Justice (DOJ) which can file civil or criminal complaints
 the various U.S.  District Courts across the country. The development, filing and resolution of federal
ivironmental enforcement actions require the teamwork of literally dozens of individuals, ranging
Dm data analysts who study industry compliance and emissions patterns, to field inspectors who
itially identify  facility-specific violations, to engineers who review the sufficiency of existing control
chnology and prescribe technology improvements, to EPA lawyers who develop and assemble the
Mence necessary  to prove violations, to DOJ lawyers who work  with EPA  to file actions for
jjudication in federal  courts.
      Nearly  all federal  environmental laws also give significant environmental  protection
isponsibllities to the fifty individual states and five territorial jurisdictions comprising the United States
: America. Under most of the American federal environmental laws, states can promulgate their own
wironmental laws and standards, which may operate in lieu of the federal standards, provided state
andards are at least  as protective as those promulgated by EPA,  (1)  Therefore, protection of the
wironment in the United States is a responsibility shared by EPA and the individual states.
      Recent data compiled in the U.S. suggest that very large American sources of pollution, as
ell as  large corporate entities which own or operate polluting sources  in the U.S., have made
lormous strides in terms of compliance with U.S. federal and state environmental requirements. (2)
onetheless, both because more effort is needed to comply with old regulations and because new
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 310                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
 regulatory standards are coming into place, many national health and environmental standards hav
 yet to be attained. As a result, the U.S. Congress has asked EPA to focus on the control of ev<
 smaller sources of pollution  in order to achieve national environmental protection goals. This \\z
 resulted in a vast expansion in the number of environmentally regulated facilities in the U.S. Althouc
 the exact number of  such facilities is unknown,  estimates range upwards of 500,000 to I.OOO.OC
 facilities.
        The burden placed on EPA and the states to monitor compliance with the increasing numb
 of state and federal environmental regulations and regulated facilities is magnified by reductions
 the amount of federal resources available for  environmental protection. Since 1979, EPA's operatir
 budget has remained essentially frozen, despite the passage and implementation of a large numb
 of new environmental laws, and the promulgation of a large number of new enforceable regulation
 (3)   Maximizing the  effectiveness of  expenditures on environmental programs has become ?
 increasingly significant EPA priority as the  agency strives to "do more with less."
        As is the  case  with standard setting, responsibility to enforce environmental standards
 shared with the fifty American states, territories and Indian Tribes. In fact, many state regulatory ar
 enforcement programs have both the resources, the skill, and the  knowledge to monitor ft
 compliance  of facilities located within  their borders often with more efficiency than EPA, which
 centrally organized around a headquarters office and ten regional offices. Although EPA maintains
 staff of inspectors and  investigators, this is a smaller force than the collective state resources ar
 EPA generally defers to the states the  responsibility to  conduct the day-to-day  environmenl
 compliance  monitoring and  enforcement  work.  For example, in fiscal  year 1993, the states to<
 approximately 10,000 enforcement actions compared to approximately 4,000 actions taken by EP.
 (4)                -.,.....-..         .---,--.-.
        Notwithstanding the states' role as the  primary day-to-day front-line enforcers of environmenl
• standards,  EPA is better positioned to detect, and respond to, patterns of environmental violatioi
 and  environmental problems which are national and regional in scope. Many ecological  problen
 caused by environmental pollution,  such as habitat loss and ecosystem destruction, cannot even I
 identified, let alone solved, by individual  states. Moreover, responding to  pervasive environmen'
 noncompliance by large national corporations or industry sectors likewise  exceeds the capacity
 any single state. Solutions to these broader environmental and regulatory noncompliance probler
 may require a coordinated enforcement response  that only  EPA is  capable  of undertaking
 partnership with the myriad state environmental agencies.
        The growing number of regulated pollution sources, limited federal resources, and the bro:
 scope of some environmental problems  have all  given rise to the critical need to deploy me
 strategically federal enforcement resources. Special enforcement initiatives are, in simple terms, .
 attempt to maximize 'the deterrence impact,  efficiency, and environmental results of enforceme
 activity by coordinating the development, filing, and resolution of enforcement responses to identifi<
 environmental problems. Enforcement initiatives essentially coordinate  the timing of  individi
 enforcement actions  which share some common characteristic. By bundling separate enforceme
 actions into a coordinated enforcement response, EPA is able to focus the attention of the public ai
 the regulated community on an identified  problem which  is illustrated by the collective action.
        EPA enforcement initiatives have  been used to address:  (i) a specific industry sector tr
 demonstrated pervasive noncompliance; (ii) a large corporation that showed a pattern of violatior
 (iii) an industrial process that presented increased health risks from noncompliance with environmen
 standards; (iv) a pervasive toxic pollutant that poses serious health risks; and,  (v) a geographic ar
 that is burdened by heavy industrialization. (5)
        The following sections discuss five different enforcement initiatives undertaken by EPA in t
 past several years. Later sections will explain important ingredients to successfully plan and execi
 enforcement initiatives.
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HRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         3Tf


!     Industry-specific initiative: pulp & paper

     A  1991  U.S. EPA study of historic rates of violations within nineteen separate industries
included that pulp  and paper  manufacturers violated  water  and air  pollution standards  more
iquently than  many other industries and were among the largest American contributors of toxic
illutants to the environment. Research by EPA's Pulp and Paper Cluster Committee (6) also indicated
at despite feasible engineering options for preventing and reducing pollution in the manufacturing
ocess, large numbers of pulp and paper facilities continued to employ outdated manufacturing
ocesses which were less effective in preventing pollution. (7)
     In response to these findings, EPA developed a targeted enforcement initiative designed to
tighten the awareness of the Industry to the importance of complying with environmental standards
id to promote pollution prevention options, Under the initiative, EPA simultaneously filed twelve
iforcement actions against pulp and paper facilities. In anticipation of  the  filing, a handbook on
illution prevention opportunities in the pulp and paper process, which included cost, feasibility, and
'ectiveness information, was also developed for the use of federal and state enforcement personnel
resolving outstanding violations.
     The filing of the enforcement initiative  prompted the pulp and paper trade association to
quest a meeting with EPA enforcement officials to discuss ways of improving the compliance record
 their members. Only eighteen  months after filing the initiative, the industry's trade association
serted  that  annual environmental violations were decreasing at  a rate 50% better than  other
iustries. (8)  Furthermore, one pulp and paper facility that was subject to the enforcement initiative
bsequently installed a new process which completely eliminated the use of chlorine, a source of
axin and other toxic chlorinated compounds. (9) The facility is the first of its kind  in the U.S. to move
/vard producing 100% of its pulp with a chlorine-free bleaching process.

2    Company-specific initiative: Louisiana Pacific Corporation

     At a yearly  meeting in the spring of 1991, EPA regional enforcement officials realized that
luisiana Pacific Corporation (LP). a large corporation with fiber board manufacturing facilities located
 the Southeast (Region IV) and Rocky Mountain  (Region  VIII) regions, appeared  to  have
stematically Understated the magnitude of air'pollutants emitted by company-owned facilities to
oid Clean Air Act permitting requirements. A subsequent comprehensive nationwide analysis of
"s facilities showed that in fact fourteen facilities located in eleven states had not accurately reported
5 magnitude of volatile organic compound (VOC) emissions. As a result of the underestimation, LP
oided  classification as a "major stationary source" of air pollution. Consequently, the company
oided the need to obtain air pollution permits that would have required the installation of the "best
ailable control technology", the capital and maintenance costs of which were in the tens of millions
 dollars. (10)
     In contrast to the traditional piecemeal enforcement approach, in which enforcement actions
lainst the fourteen different LP facilities would be pursued independently, EPA,  in concert with the
3J, decided to combine individual actions into a single large enforcement  initiative against LR In
 s way,  LP's pattern  of corporate-wide noncompliance could be  addressed in a  single
lionally-managecl or coordinated action. In addition, a single action against LP was thought to be
nore effective method of bringing the company into compliance, and thereby  preserving the integrity
 the underlying regulations.
     As a result of the combined enforcement action, LP agreed on the eve of the filing to install
ite-of-the-art pollution control equipment at most of the facilities that captures 90% of volatile organic
 mpounds (VOCs) and 95% of particulate  matter (PM) air pollution. LP also was forced to pay a
il penalty of $11,1 million, which in part represented the disgorgement of economic benefit obtained
  LP from its violations. The penalty was the largest ever recovered  under the Clean Air Act as well
  the second largest civil penalty ever recovered by EPA under any environmental statute.
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312                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
1,3    Process-specific initiative: hazardous waste combustion in boilers & industrial furnaces

       The land disposal of hazardous waste has declined significantly in the last decade in larg
part due to the implementation of stringent Federal  regulations  restricting the land disposal <
untreated hazardous waste. The costs associated with  such treatment  have probably led mar
hazardous waste generators to turn increasingly to combustion  as a means of disposing of sue
waste.
       Some hazardous waste is readily  combusted in boilers and industrial furnaces (BIF
commonly  found in manufacturing industries! which makes it an attractive source for  ener<
production  and a means to recover useful materials. EPA is obviously concerned that such activi
be conducted in a safe and responsible manner. To minimize risks presented by  the burning
hazardous wastes, EPA issued regulations in 1989 which established feed rate limits, performanc
and operating  standards, and emission limits for boilers  and industrial furnaces that combu
hazardous waste (BIF rule.)
       In 1990, concern that a large number of BIFs were burning hazardous waste in violation
ERA'S BIF rule  prompted EPA's Region IV office (Southeast U.S.) to inspect a number of  BIFs
determine the overall state of compliance with the new rule. This  pilot investigation revealed that tl
BIF industry in the Southeast U.S. was experiencing widespread noncompliance with the standarc
When confronted with Region IV's findings of pervasive noncompliance,  EPA Headquarters
Washington, D.C. decided to undertake a nationwide initiative to enforce the BIF rules. The goals
the initiative were to: (i) penalize and return to compliance violators of the BIF rules, (ii) to emphasi
to the regulated community the importance of complying with the rules, and (iii) to address the public
legitimate interest in ensuring that facilities which burn hazardous waste do so properly.
       In September 1993, EPA Administrator Carol Browner held a press conference at which s
announced that the Agency had filed, or assisted in the filing of, federal and state  actions  agair
thirty-six boilers, industrial furnaces, and incinerators. The actions sought over $18 million for violatio
of RCRA hazardous waste combustion rules. In addition to these enforcement actions, settlemer
announced as part of the  initiative  recovered over a half a million dollars in penalties and provid
for significant injunctive relief and over $1.6 million in additional environmentally beneficial projec
As a result of the initiative, the hazardous waste combustion  industry, and the public, were ma
aware that violations of our hazardous waste combustion requirements will not be tolerated,

1.4    Pollutant-specific initiative: lead

        EPA has embraced pollution prevention, focusing specifically  on  toxic pollutants. To:
pollutants that can be reduced more effectively by means of a coordinated enforcement approach •<.
another potential focus of enforcement initiatives. Contaminants that readily transfer across regulati
program boundaries (e.g., air to water) may not be addressed  adequately by the  enforcement
media-specific regulations. Coordinated  enforcement initiatives, which focus all enforcem*
authorities on an individual toxic pollutant, have the potential to close "loop-holes" between regulah
programs which can encourage the transfer of pollution from one medium of the  environment
another.
        Increasing  concern among the medical profession  and by EPA with the problem  of le
contamination convinced EPA to undertake an enforcement initiative directed toward reducing lev
of lead in the environment. Lead exposures can produce a range of acute and chronic health effec
particularly in children and fetuses, including disorders  of the nervous and reproductive syster
delays  in  neurological and physical development, changes in  cognition and behavior,  a
hypertension. Lead, which is ubiquitous, is found in soil (from combustion of leaded automobile f
and from stationary source lead emissions), drinking water (from the leaching of lead service lin
pipes, and fixtures), paint, and surface water (from the discharge of lead by electroplaters and otS
metal-intensive industries.)
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         313


      EPA's lead enforcement initiative was launched in July 1991, with the simultaneous filing of
verity-four judicfel enforcement actions in federal courts around the U.S. and twelve administrative
ctions. The actions were filed under a number of environmental laws, including the: (i) Resource
tonservation and Recovery Act (RCRA); (ii) Comprehensive Environmental Response, Compensation,
nd Liability Act (CERCLA, or Superfund Law); (iii) Clean Water Act (CWA); (iv) Safe Drinking Water
,ct (SDWA); (v) Clean Air Act (CAA); and, (vi) Emergency Planning and Community Right to Know
,ct (EPCRA). The coordinated  cross-media enforcement initiative  was designed to improve
ompliance with E-PA regulations governing lead emissions and to place EPA's regulated community
n notice that the Agency insists on nothing less than full compliance with lead standards.

.5    Geographic initiative: S.E.  Chicago/N.W, Indiana

      Special enforcement initiatives have also been brought to bear to reduce the risks to human
ealth or ecosystems in specific geographic areas. Geographically focussed enforcement initiatives
re usually strategies to more vigorously enforce environmental requirements at industrial sources in
 defined area that has become environmentally degraded by pollution. A series of individual
nforcement actions are then used as vehicles to implement a broader comprehensive environmental
smediation strategy  for improving  the environment in the area. Comprehensive  settlement
greements, pursuant  to which individual defendants to the enforcement actions agree to conduct
nvironmentaliy beneficial activities, contribute to overall environmental improvement. These initiatives
an also focus on enhancing protection of sensitive and pristine ecosystems and resources, such
s estuaries, tidal water bodies, and groundwater basins.
      EPA's Region V office, which is located in Chicago, Illinois and covers the "industrial heartland"
lorthern Midwest Region of the  US., has undertaken an enforcement initiative focused on more
igorous enforcement of environmental  standards at facilities  located in  the  geographic  region
omprising Southeast Chicago and Northwest Indiana. (11) The initiative has grown out of concerns
lat the large population and the Lake Michigan ecosystem contained within this heavily industrialized
sgion  are cumulatively affected by significant exposures to high levels  of air, surface water, ground
/ater, and soil contamination produced by manufacturing  facilities.
      The initiative began in October 1990 with the simultaneous filing by EPA and DOJ, of three
Ml actions against several large facilities in the area found to be in violation of air, water, and
azardous waste standards. The goals of the initiative are to increase environmental compliance
ates, to restore damaged ecological systems by leveraging industry commitments to cleanup the
rea,  and to encourage industry to adopt  pollution prevention measures. Several subsequent
nforcement actions against facilities located in; the area have been initiated since 1990. As a result
f the  initiative, several  companies have agreed to remove contaminated sediments that are a
ontinuing source of water contamination in the water basin, while additional agreements are expected
3 produce other environmentally beneficial projects to  improve the health of people and the
nvironment in the area.
      ELEMENTS OF INITIATIVE PLANNING AND EXECUTION

      The preceding sections discussed examples of successful EPA enforcement initiatives. The
uccess of these coordinated enforcement actions was the product of careful planning by the various
omponents of EPA and  the  participating  states. Because  responsibility for environmental
nforcement in the U.S. is shared by numerous organizations within EPA, including its headquarters
nd ten regional offices, by DOJ, and by the numerous states enforcement agencies, careful initiative
•fanning and  coordination  is absolutely essential. Ten elements of initiative planning include: (i)
tentifying initiative targets, (ii)  pilot  testing of  initiatives; (iii) establishing reasonable goals;  (iv)
•roviding adequate lead time; (iv) generating sufficient numbers of enforcement actions to maximize
npact, (v) identifying technology and other pollution reduction measures to be implemented; (vi)
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314                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
formulating a strategy for treating individual companies which volunteer to disclose violations befor
enforcement initiated; (vii) formulating a communications plan; (viii) coordinating simultaneous filings
(ix) formulating a plan for communicating to the public and the regulated community; and, (>
measuring performance.

2.1    Identifying appropriate initiative targets

       There is no universal process for identifying appropriate targets for coordinated enforcemei
responses. Targeting approaches employed by EPA in the past include the use of:
         (i)  targeting committees comprised of enforcement personnel,
         (ii)  computers which analyze compliance and pollution data, and,
         (iv) anecdotal information.

2.1.1   Targeting committee

       The targeting committee approach relies on the collective experience of enforcement official
often compliance inspectors and enforcement lawyers, to decide on what are appropriate initiati\
targets. For example, the hazardous waste combustion initiative, discussed above, was the produ
of an Agency hazardous waste targeting committee. The committee, which was established to identi
yearly enforcement initiative targets,  is comprised of various enforcement officials from the EF
headquarters  and  regional offices,  as  well as from several state  environmental enforceme
organizations. The committee meets several times a year to compare experiences in the enforceme
of the nation's hazardous waste law and to identify common problem areas that appear to be natior
in scope. After analyzing compliance information in one region of the country, and exchanging EF
field experience from other regions of the country, the hazardous waste targeting committee decide
that hazardous waste combustion conducted by boilers and  industrial furnaces was a compliant
and risk problem of national scope. Accordingly, boilers and  industrial furnaces became the targ
of an EPA enforcement initiative.

2.1.2  Computer analysis of compliance and pollution data: the "Black Box"

       EPA has also begun to utilize new computer capabilities to analyze compliance and pollutii
data for the purpose of identifying patterns  of noncompliance  or pollution trends  among Indus
sectors, companies, a;nd geographic  areas.	
       The EPA's Integrated Data for Enforcement Analysis ("IDEA') system is one computer syste
that integrates compliance data managed by each of EPA's individual national programs. The syste
provides enforcement personnel instantaneous access to compliance data and  toxic release d«
(12) on individual facilities. By integrating compliance data and toxic release data, EPA can idenl
priority industries, facilities, and geographic  areas which are appropriate subjects  for  enforcerm
initiatives.
       For example, the IDEA system was integral to identifying pulp and paper as an appropri?
target for an enforcement initiative based on a finding that violations occurred more frequently in tl
industry. EPA analyzed the environmental compliance and toxic release data for nineteen differ*
manufacturing industries over a two year period. By comparing the incidence  of violations in ea
industry sector,  EPA identified three  industries;  pulp and  paper, industrial organic chemicals, a
primary metals, that appeared to have particularly significant compliance problems.  Analysis of to
release data also revealed that these same  industries released large quantities of  toxic enemies
both in terms of total releases per industry and average releases per facility. Based on this informatk
EPA decided that a coordinated enforcement initiative targeted at these three industry sectors wot
help garner public and  industry attention, thereby raising compliance levels and encouraging to
release reductions.
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    INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                  ,       315
     EPA is also  developing the capability  to  array environmental data and facility-specific
Dmpliance data on a geographic  basis. Maps produced by these computerized  Geographic
formation Systems  (QIS) are expected to show where regulatory noncomptiance and environmental
sgradation are most prevalent. One such model is currently under development by EPA that will
3lp identify the geographic areas and component ecosystems which are most heavily burdened by
Dilution regulated by EPA. This ecosystem enforcement targeting model will allow EPA to identify
Dpropriate enforcement targets within critical geographic areas with the goal of enhancing protection
: component ecosystems through targeted enforcement.

1.3  Enforcement  officials' experience

     The third approach to initiative targeting is simply to rely on the experience and creativity of
dividual environmental enforcement officials.  Individuals  working in the field may encounter
rcumstances indicating a larger compliance or risk problem that can be addressed in some measure
^ a coordinated enforcement response. Excellent ideas for enforcement initiatives are often prompted
/ specific circumstances encountered while inspecting, or  resolving  outstanding violations,  at a
city. For example,  the company-specific initiative against the Louisiana Pacific Corporation was in
rge part the prociuct of a single EPA enforcement official who,  after conducting a probing inquiry
: one facility, suspected that a single facility's violations were merely "the tip of the iceberg"  of a
xporate-wide compliance problem. This serious probe was obviously critical to a history-making
ivironmental enforcement event.

2    Testing ideas through  "pilot" initiatives

     In some instances, there may be preliminary but incomplete information indicating a possible
rger compliance or risk problem that may, with further research, be an appropriate initiative target.
'here limited but promising data exists, in several  instances EPA has implemented initiatives on a
nited basis to test  whether they are appropriate for full-scale implementation on a national basis.
lis makes good sense in Instances where anecdotal, as opposed to empirical, information causes
PA to suspect there may be a problem which can be addressed  by an enforcement initiative. For
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316                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEh
process that was previously a low enforcement priority), a longer period of time will be necessary f
implementation.  This  is particularly true when an initiative requires a significant number of ne
inspections. Frequently,  an interval of at least eighteen months  will  be required between tt
identification of the national enforcement priority and the execution of the initiative.
       Past experience has shown that failure to provide adequate lead time to implement signifies
new enforcement priorities through an enforcement initiative  can diminish the overall impact ar
effectiveness of  the  initiative.  Performing  new; regulatory compliance inspections and developir
enforcement actions is a foundational event in developing and enforcement initiative. This requin
planning, time and resources. Inadequate lead time can disrupt the ability to perform fundamen
"baseline" or "core"  enforcement activities. To the extent that new national enforcement initiativ
divert resources that would otherwise be devoted to important local enforcement priorities, necesse
partnership and cooperation cannot be achieved.
       Certain initiatives are better implemented through a multi-year strategy, which allows El
regional offices and states the lead time to allocate inspection resources  to the areas identified. Tr
is particularly true if the  goals of an initiative  are complex or ambitious, such as the reduction
industry rates of noncompliance as opposed to merely the drawing of attention to the need to comf
with a new regulation. In contrast, initiatives that rely primarily on "packaging" enforcement actio
already in the "enforcement case pipeline" require less lead time to implement. Generally, howev
at least a year is needed simply to plan and conduct inspections, with an additional six months
more required to develop and file enforcement actions.

2.5    Generating critical mass

       Careful enforcement initiative targeting is critical in ensuring that there are a sufficient numk
of enforcement actions to achieve "critical mass."- Critical mass, in this instance, means a sufficis
number of enforcement actions, penalties, and well-known corporate entities to focus the attenti
of the public and the regulated community on the particular problem at issue in  the initiative. As
general rule, initiatives are successful only if  they seize the  attention of  the target audience: t
regulated community and the public. Simply stated, if an EPA enforcement initiative generates
publicity the expected synergies achieved by deterring other similarly-situated violators, or
focussing public attention on a particular risk problem, may not be realized.
       In the U.S., an environmental enforcement initiative is generally more likely to receive public
if it involves a significant number of enforcement actions, and if several of those actions seek relativ
significant technology, remedial relief, and  large monetary penalties from well-known companies. ('
Identifying enforcement actions that meet the criteria for inclusion in the initiative is therefore extrem
important. This task can be difficult since so many different Jurisdictions are responsible for enforc
environmental laws in the U.S. In addition  to the ten EPA regional offices, from which the majority
EPA's enforcement actions originate, there are  fifty states and  five territories that undertake the "Ik
share" of environmental enforcement activity.
       Generating enforcement actions generally requires EPA headquarters to  issue, early in
process, a written memorandum to the ten regional  offices discussing the national enforcem
initiative and soliciting regional participation. EPA regional offices participate in initiatives by work
with their state program enforcement counterparts, by generating enforcement actions with their c
staff that  meet specified criteria, and by coordinating  the filing of enforcement actions to coinc
with the national strategy. Since EPA also-favors the participation of      environmental enforcem
agencies, the memorandum may also be  issued to individual states and territories.
       After a list of candidate  enforcement actions  is compiled, it is important  to maintain cl<
communications with the particular individuals who are developing the cases in the regions and sis
to  ensure that the cases will be ready for filing on the  date of the initiative. Periodic telephc
conference calls, case lists and  summaries are all helpful in coordinating the development of
initiative.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         317
,6    Identifying appropriate injunctive relief

      For those enforcement initiatives involving a common industrial process, pollutant, or violation,
 is often appropriate to analyze in advance the type of injunctive relief, and supplemental relief, that
hould be sought in the enforcement  actions. By "injunctive relief," we mean those actions which
lust be taken by a facility to reduce pollutant loadings to a level which achieves compliance with
nvironmental standards. By "supplemental relief," we mean those actions that can be  taken by a
icility to further reduce pollutant discharges  beyond  existing standards. Advance  planning
oncerning the type of pollution control equipment, process changes, raw materials substitutions, or
ousekeeping improvements that should be pursued as relief in the enforcement action increases
re efficiency of case development and resolution,

.7    Formulating a strategy for treatment of self-disclosures of violations

      As previously discussed, enforcement initiatives  maximize  deterrence  by capturing  the
ttention of the regulated community with respect to the importance of complying with environmental
tandards. The synergistic benefits of  enforcement initiatives are  greatest when individual violators,
'hich are not the subject of any enforcement action, voluntarily disclose their noncompliance to EPA,
his form of "leveraged enforcement"  is possible when the regulated community perceives that the
sks associated with not disclosing violations exceed those associated with disclosure. The decision
) voluntarily disclose violations  is  influenced  by a number of factors, including the likelihood that
 PA will detect the violations in the normal course, the swiftness and stringency of any sanctions that
re anticipated once violations are  detected, and the extent to which the violator perceives there to
e some pecuniary or other benefit to  voluntarily disclosing the violation. (14)
      To encourage self-disclosure, virtually all EPA penalty policies authorize enforcement officials
> reduce penalties in  exchange for the self-disclosure of violations.  Although such penalty policy
revisions can be effective, in certain instances EPA has pursued more deliberate means to persuade
ompanies to voluntarily reveal violations. Enforcement initiatives can be  designed specifically to
ncourage I he voluntary disclosure of violations by certain classes of violators which are specifically
irgeted for more vigorous enforcement by EPA.
      In contrast to most initiatives in which the Government declares its intentions "after the fact"
i a strategy designed to "surprise", this type of initiative hinges on publicizing enforcement intentions
p front before actions are filed.  Such initiatives generally notify  the regulated community of a plan
) increase  the compliance monitoring and enforcement of specific standards and to treat more
sniently companies that voluntarily disclose violations. By stipulating in advance to the penalty amount
lat will be assessed for specified violations,  EPA eliminates much of the  uncertainty that typically
 iscourages voluntary disclosures.
      For example, EPA recently  implemented an initiative designed to encourage manufacturers
 f commercial chemicals to disclose failures to report, as required by regulations, any new information
 •hich indicates that such  chemicals present unreasonable risks. The initiative has been successful
 i encouraging companies to implement internal programs to audit their compliance with the reporting
 jquirements and to disclose violations when detected. To date, over 10,000 health effects and aquatic
 jxicity studies have been provided to EPA under the initiative. (15)

 .8    Formulating a communications plan

      As discussed earlier, enforcement initiatives are primarily a technique to draw the attention of
 le regulated community and  the public to some environmental compliance  or risk problem,
 •eveloping  a plan or  blueprint  for communicating what EPA is trying to  accomplish through the
 litiative is therefore absolutely essential to ensuring ultimate success.
      A communications plan,  which should be written and distributed to the individuals who are
 orking on  the initiative, typically  has several elements. The plan should  identify, in a short and
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318                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
succinct manner, the essential concept that is being advanced through the enforcement initiative; R
example, the  essential concept communicated through the September  1993 hazardous wasl
combustion initiative was that improper burning of hazardous waste presents serious public healt
risks the reduction of which was an important EPA priority.
       The communications plan should also identify the audience to which communications will t
directed.  EPA's audience for enforcement initiatives generally consists of the particular segment <
the regulated community, if any, that will be subject to the enforcement actions. Secondary audience
include the broader regulated community, trade  associations, states,  the  U.S. Congress, and tr
general public, particularly in instances where public education and involvement can help to achiev
environmental  goals. The target audience for the initiative will also influence the type of information
medium or "vehicle" used to convey the desired message. EPA generally tries to convey its rnessag
through the popular press (i.e., newspapers, wire services) and industry trade publications.
       The plan should anticipate possible negative reactions by the various target audiences f
the purpose of  preparing appropriate  responses.  Developing responses to anticipated negate
reactions allows the EPA to readily answer questions from the media, the public, and the regulate
community with the ultimate goal of delivering more effectively the central message embodied by tt
initiative.
       The communications  plan  should  designate  the  key individuals, and  their respecth
responsibilities, who will execute the initiative. The plan should set forth the timeframe for executir
the initiative, including appropriate planning milestones.  The timeframe and milestones should s
forth the  "what, where, when, and how" for the cases to be filed under the initiative.

2.9    Coordinating simultaneous filings of enforcement actions to maximize impact

       As  a general rule, impact is maximized when a large number of related enforcement actioi
are filed  on the same day, or over several  days, and  those  actions  assess substantial monets
penalties against violators. As previously discussed, the diffusion of environmental enforceme
responsibility  in the U.S. across  the EPA regional  offices, DOJ, and the states, compels clo
cooperation and  coordination. This fragmentation,  and  the fact that  the  filing  of any givi
environmental enforcement action  may require the teamwork of  dozens of individuals,  mak
extremely challenging the task of orchestrating a simultaneous filing of numerous enforcement actio
in various ERA administrative, federal judicial, and state courts across the country. Careful plannii
and coordination early in the initiative development process  is therefore an absolute necessity.
       Probably the most critical factor in  executing a simultaneous filing of enforcement actions
obtaining the support, or "buy-in", of each of the organizational participants in the initiative (i.e., t
EPA regional offices,  DOJ, and the  states.)  Buy-in  is achieved early in the process by effectM
explaining  and communicating the rationale and need for the initiative  (i.e., what is the problem a
how will  the initiative  help to solve  it.)   Since significant resources  managed by other offices a
organizations must be devoted to supporting the development of enforcement actions, a commitrm
to support the initiative should be secured from each organization.
       Candidate actions for inclusion in the initiative must also  be identified early in the planni
process  and tracked  throughout their development and referral to DOJ (for judicial actions.)  T
central organizers of the initiative  should establish  relationships with the  numerous perso
responsible for developing the individual actions to be included  in the  filing. These  persons mi
view their individual role and contribution as integral to the eventual success of the initiative.
       Finally, clear milestones and "firm" deadlines must be established for critical junctures lead!
up to the cluster filing of cases in order to manage the effort. Deadlines should be established f
(I)  referring judicial cases  to DOJ; (ii) submitting case summaries and descriptions; and, •
committing to the filing of actions.
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-IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         319
      MANAGING COMMUNICATIONS WITH THE PUBLIC

      Execution  of the  communications plan requires the development  of materials that are
istributed to the various audiences which have been identified well in advance of implementation.
/pical audiences include the regulated community, trade groups,  states, the U.S. Congress, and
itizen groups.
      A fact sheet is developed which describes in detail what EPA is seeking to accomplish through
te initiative.  The  fact sheet generally explains EPA's rationale and process for deciding on the
articular initiative target (e.g., a noncompiiant industry sector) which helps to persuade the audience
lat EPA's actions are reasonable and worthy of attention. The document also describes several of
IB most signifcijnt enforcement actions which illustrate the nature of the problem EPA is trying to
ddress with  the initiative.
      A shorter description of EPA's action, in the form of a press release, is also developed for
istribution to the popular press. The press release contains a short summary of the  action and
everal quotations from high-ranking EPA officials, such as the Administrator and Assistant
dministrator for Enforcement, which convey the appropriate message.

.1    Measuring success

      Enforcement initiatives should  not end with the cluster filing of enforcement actions. In order
3 assess  whether an environmental enforcement  initiative  has achieved  desired  results (e.g.,
icreases in compliance  rates, reductions in pollutant loadings, garnering of public attention) for
urposes of improving upon future efforts follow-up analysis  should be conducted. As previously
iscussed, parameters for assessing  the success of enforcement initiatives should be established
arly in the planning process to help clarify the underlying purpose of the initiative. Traditionally, EPA
as devoted relatively few resources to empirically analyzing whether enforcement initiatives achieved
esired goals.  Although  there is  a widely-held opinion that enforcement  initiatives are effective
trategies if properly targeted and effectively implemented little "hard" evidence has been assembled
3 definitively prove this assumption.
      Measuring the  success of enforcement initiatives can be done in a number of different ways.
Effectiveness of industry-specific or company-specific initiatives can be measured by assessing any
hanges in compliance rates within the industry sector or company. Initiatives that target enforcement
'f discrete reporting requirements, such as the TSCA Section 8(e) initiative, can be measured easily
y tracking any relative increases in the number of reports filed following the initiative.
      Enforcement initiatives that are more difficult to measure are those which focus on a particular
lollutant, environmental problem, or geographic area. Reductions in the annual pounds of a given
ollutant released to the environment,  increases in biological productivity (e.g., species diversity, fish
« shellfish yields),  and decreases in ambient pollution concentrations are all possible measures of
uccess. Measuring success based on these parameters, however, will require longer periods of time
;nd greater amounts of resources.
      CONCLUSION

      The expansion of the environmental regulatory net, the scarcity of resources, and the breadth
if many environmental problems have all given rise to the critical need to deploy more strategically
invironmental enforcement resources. Special enforcement initiatives are, in simple terms, a means
if maximizing deterrence, efficiency, and environmental results by  coordinating the development,
•ling, and resolution of enforcement actions that share some common element or characteristic. EPA's
sxperience in conducting enforcement initiatives over  the past several  years has yielded several
•aluable lessons which may inform the efforts of other nations and organizations who may wish to
ixperiment with these approaches.
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320                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       ENDNOTES AND REFERENCES

 1.  See, e.g., Resource Conservation and Recovery Act ("RCRA1) § 3006,42 U.S.C.A. § 6926, Feden
    Water Pollution Control Act ("FWPCA') § 402(b), 42 U.S.CA § 1342(b) (NPDES program), Saf
    Drinking Water Act ("SDWA") § 1425, 42 U.S.C.A. § SOOh-4 (Underground injection Control), Clea
    Air Act  ("CAA") § 112(1), 42 U.S.CA  §  7412(1)  (Hazardous Air  Pollutants), Comprehensiv
    Emergency Response, Compensation and  Liability Act ("CERCLA1) § 121 (d),  42 U.S.C.A.
    9621 (d) (Clean-up Standards.)

 2.  See, Van Heuvelen, Robert and Rosenberg,  Peter D., Successful Compliance and Enforcemei
    Approaches (discussion of major source enforcement effort in early 1980's), appearing in thes
    same Proceedings.

 3.  U.S. General Accounting  Office, Environmental Protection: Meeting Public Expectations  Wit
    Limited Resources, p. 16, (June 18,1991).

 4.  U.S. EPA, Fiscal Year 1993 Enforcement Accomplishments (December 1993).

 5.  See Peterson, Lynn, The Great Lakes Enforcement Strategy: Using Resources  to Maximize RK
    Reduction and Environmental Restoration In the Great Lakes Basin, aid Van Heuveien & Rosenber<
    Successful Compliance and Enforcement Approaches, appearing in these same Proceedings.

 6.  EPA's Cluster Committees are teams of staff and managers from relevant EPA program office
    which meet on a regular basis to integrate formally separate activities with respect to specif
    industries, environmental resources, and other significant areas that are a concern of the EPA
    regulatory programs. Sector-based clusters include the Oil and  Gas Exploration and Productic
    Cluster, Petroleum Refining Industry Cluster, Pulp and Paper Industry Cluster, Printing Industi
    Cluster, Transportation Cluster, and Smaii Communities Cluster. See U.S. ERA, EPA's Clusters:
    New Approach For Environmental Management (July 1992).

 7. For example, a recent EPA study found that many U.S. pulp mills continued  to use element
    chlorine to bleach paper to the desired brightness when several less toxic alternatives, such £
    chlorine dioxide,  were available at a reasonable cost.  See U.S.  EPA,  Pollution Preventic
    Technology tor the Bleached Kraft Segment of the U.S. Pulp and Paper Industiy (Aug. 1993).

 8. Letter from Josephine Cooper, Vice President, American Forest and Paper Association to Steve
    A. Herman, ERA Assistant Administrator for Enforcement (Nov. 17,  1993), p. 2,

 9- See- United States v. Louisiana Pacific Corporation, C-78-0567-MHP (N.D, CA) (Jan. 15, 1995
    see also Van Heuveien & Rosenberg, Successful Compliance and Enforcement Approaches.

 10. See, Van Heuveten & Rosenberg, Successful Compliance and Enforcement Approaches,

 11. See Peterson, The Great Lakes Enforcement Strategy.

 12, Pursuant to Section 313 of the Emergency  Planning and Community Right-To-Know Act, mo
    U.S. manufacturing facilities must report to EPA the amount of releases and off-site transfers
    some 302 toxic chemicals.

 13. In 1992, EPA surveyed popular press  and  trade press journalists reporting on environment
    matters to help identify what factors influence  their decisions to cover a particular enforceme
    action.  The  survey revealed that among the most important  factors  is  whether a give
    environmental enforcement action: (i)  is judicial rattier than administrative, (ii) involves a larj
    monetary penalty, or (iii) is against a well-known company.

 14. See generally, U.S. EPA, Principles of Environmental Enforcement, p. 2-3 (Feb. 1992) (discussir
    factors affecting compliance.)

 15. See, Van Heuveien & Rosenberg, Successful Compliance and Enforcement Approaches.
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URD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                     321
                              THEME 6:
       ESTABLISHING INTERNATIONAL NETWORKS
 , The European Union Network of Environmental Enforcement Authorities,
  D. Slater	,	„„.,.,	;	323
!. The Caribbean Enviornmental Programme as a Network for the
  Caribbean Region, M.I Szauer Umana	331
}. Environmental Crime and the Role of ICPO-INTERPOL, S. Klem	335
\. North American Trading Partners: Canada, United States, and Mexico as an
  Enforcement Network, S.C. Fulton, LI. Sperling 	343
5. The Enforcement Project on  Transboundary Movements of Hazardous
  Waste Within Europe, Ft. deKrom, H. Kesselaar	,.,,,,,..365
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322            •       .   THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        323


HE EUROPEAN UNION NETWORK OF ENVIRONMENTAL
;NFORCEMEMT AUTHORITIES

LATER, DAVID

'irector and Chief Inspector, Her Majesty's Inspectorate of Pollution, Romney House, London SW1P
PY United Kingdom


      SUMMARY

      An outline  of the conceptual thinking behind  the setting up  of a network of European
nvironmental enforcement agencies is given. The early development is reported together with more
jcent  moves towards the establishment of the network as a formal part of the European Unions
nvironmental protection strategy.


      INTRODUCTION

      During 1991  the Netherlands Ministry  of Housing, Physical Planning and Environment
onducted an extensive survey of European Community (now known as the European Union)
•rganlsations involved in the enforcement of environmental legislation. The initiative arose out of
oncern that the growth in environmental legislation had not been matched  by improvements in
nvironmental quality and from the need to ensure that all the links in the regulatory chain - legislation
.nd  standards,  permitting and implementation,  compliance checking and enforcement - must be
trong.
      The survey concluded that there was a need' for greater consistency between EC  Member
tales. Examples where  inconsistencies were found included:
      • administrative procedures;
      • numbers of permits required;            	
      » technical standards applied;
      • charges made for permits; and
      » public access to information.
      Such  inconsistencies or weaknesses  were thought likely to impose unequal burdens on
ndustry across the Community, It was therefore proposed that an environmental enforcement network
ie created within  the Community. Similar networks were cited as examples of the benefits  to be
ibtained from such systems, for example, for the implementation of the Seveso  Directive, Senior
abour Inspectors Network, etc.
      In addition, based upon a series of seminars and exchanges with the  U.S. EPA under their
>ilateral Memorandum of Understanding, the Dutch Minister believed that  their Presidency of the
European Community offered a unique opportunity to seek to apply some of these experiences to
Drming a European network, despite obvious differences in the status of EEC member states as
iovereigns. The Dutch Minister requested a special series of briefings in the U.S. to explore  possible
ransfers of the U.S. experience to Europe. These briefings reviewed the full range of counterparts at
he National and Regional levels, including its Steering Committee on the State/Federal Enforcement
telationship with high-level officials from all programs at the Federal, Regional and State levels.
      The Dutch proposed that the following topics be included in the programme of the Network:
      » exchange of experience in compliance.testing, monitoring efficiency and effectiveness;
      » analysis of elements of common interest, such as improvements to infrastructures
        for enforcement within and among Member States;
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324                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'


       » training of compliance and enforcement staff;
       • assisting the development of enforceable legislation;
       • exchange of information on detailed guidelines' standards and procedures;
       * evaluation of enforcement at the facility level; and
       * informal exchange of advice on specific enforcement issues.

       The Dutch study was considered at an informal meeting of Environment Council in Octob«
1991, when the Presidesncy concluded that:

       "...Ministers agreed that it would be desirable as a first step to establish a Network
       of representatives of relevant  national authorities and the  Commission in the field of
       enforcement, primarily aimed at the exchange of information and experience in the
       field of compliance and enforcement, and at the development of common approaches
       at a practical level,"


2      THE CHESTER NETWORK

       The Dutch study was considered at a meeting of the EC Environment Council  on 12-1
December 1991  and as a result Ministers  agreed to set up  a  Network of national pollutic
inspectorates. The UK offered to host the first meeting during its Presidency,  HMIP was  given tf"
task by DOE of coordinating the UK input to the Network and of organising the first meeting. Th
was duly held in Chester on 3-6 November 1992.
       The objective of the first  meeting was to:

       "Establish an EC Network of [national] pollution regulation inspectorates,  agree the
       terms of  reference of the Network and develop a suitable work programme for the
       group."

       At the meeting the delegates overwhelmingly welcomed  the establishment of the Networ
the main aim was to provide a mechanism for the  exchange of information and experience betwee
environmental enforcement bodies within the European Union in  order to address issues  of mutu
concern and to enhance the quality of enforcement.
       They  agreed that  participation in the Network should  be  open to representatives froi
environmental enforcement bodies concerned with the regulation of major industrial  installations with
the member states and to the European Union.
       They  agreed that  the  Network should address the technical  and practical aspects  <
enforcement, in particular through the following activities:
       * exchanges of information and experience via a network of contact points in each
         country (to be set out in a Network Directory), and by convening regular meetings;
       « exchanges of personnel between participating bodies;
       » establishment of working groups to address specific issues of mutual interest; and
       »  provision of advice on practical and enforcement aspects in the development  of
         environmental legislation.

       The meeting agreed upon a framework for future work, including the establishment of workir
groups to examine the following:
       • Working Group 1: The technical aspects  of permitting;
       « Working Group 2: The procedural/legal aspects of permitting;
       « Working Group 3: Compliance monitoring and inspection;
       » Working Group 3b: Transfrontier shipment of waste, case studies; and
       • Working Group 4: Managing the enforcement process.
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IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         325
     The second meeting of the Network took place in Copenhagen on 24-26 May 1993. All Member
ates of the Community took part in the meeting, which was hosted by the Danish Presidency and
aired by the Danish EPA. Apart from information exchange, the Network discussed reports from
3 five working groups set up in Chester.

1    Progress of the working groups

     Following the first meeting of the Network in Chester there have been at least two meetings
 each of the working  groups. Each group had produced written reports which had been sent to
eeting delegates in advance. All Member States agreed that the work of tie working groups had
sen very constructive and useful.

1.1   Working Group 1: Technical aspects of permitting (Germany)

     The group has made a thorough comparison between the implementation and enforcement
 certain areas, mostly covered by EC directives.
     These sectors were:
     • technical licensing requirements for industrial plants
     •  large combustion plants
     •  oil refineries (no EC directive)
     « waste incineration plants
     »  sewage treatment plants.

     Large differences were found among Member States both In implementation and in practical
iforcement, but the exchange of views which took place was found very useful. It was agreed that
ere was a need to continue the exchange of information, data and know-how and to look into the
oblem of translating standards into licences,-in particular how the use of cleaner technology can
j encouraged. The group is currently examining the cement, glass, aluminium, chipboard, pulp and
jper industries.

1.2  Working Group 2: Legal and procedural aspects of permitting (UK)

     The working group discussed a wide range  of legal and procedural issues, including:
gisiative background; pre-application procedures; application procedures; consultation with public
id other agencies; and decision making procedures (assessing application and producing a permit),
     The working group agreed to the following terms of reference: To exchange information on
e legal and procedural aspects of regulating industrial processes to protect the environment, and
 include specific reference to implementation of European Union legislation.
     The working group meeting had provided useful information about exchange of information
id about systems in other countries,  and the group agreed that it would be useful to know more
rout permitting systems in the Member States which were not present at the meeting. The working
oup meeting discussed the European directives on Environmental Impact Assessment (85/337),
eedom of Access to Information on the Environment  (90/313) and on the Major-Accident hazards
 certain industrial Activities (85/501).
      The second meeting of the working group involved exchanging information on legal and
ocedural aspects of the decision making phase of the permitting process, focusing in particular oh
 ocedures developed to:
      • assess the application
      • perform environmental impact assessment
      • determine the BAT and BATNEEC option
      « write the permit, Including timing of issue, life-time of permits and public participation
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326                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
2.1.3   Working  Group  3:  Compliance monitoring,  inspection and enforcement  of  permitte
       installation (Denmark)

       Working Group 3 has exchanged information on compliance checking, inspection, monitorin
and enforcement. A special topic being examined is the statistical analysis of  inspection an
enforcement functions, such as:  enforcement tools and enforcement practices;  problems related 1
measurements of efficiency in enforcement;  and the relationship between discharge complianc
monitoring and environmental quality.
       The group is currently considering:
       • the experiences on inspection and enforcement in authorities with an integrated
         and non integrated approach
       • the experiences on enforceability of various EEC directives
       • a  model or alternative  models for  effective enforcement  and effective use  of
         enforcement tools
       • the relation iDetween environmental monitoring and compliance checking
       • experiences with proceedings and standards of sampling as a part of inspection
         and enforcement
       • making a  survey of  the annual reports, that are issued by  inspection and
         enforcement authorities around the EEC countries

2.1.4   Working  Group 3: Monitoring and enforcement concerning the transboundary shipment
       hazardous waste (The Netherlands)

       Ad hoc Working Group 3 has developed a project involving a detailed case  study includin
       • a desk study;
       • company visits;
       • transport inspections; and
       • sampling hazardous waste.
       The waste streams selected for the desk study were paint waste and chlorinated solven-
This was successfully carried out and the group  is currently:
       • consolidating the operational network built up so far to ensure cooperative regular
         enforcement activities;
       • starting a second project in 1994 on a larger scale to:
       • extend the network (e.g. Italy, France, Spain);
       • get more experience and results to develop a structural network at EC level;
       • achieve more effective enforcement.

2.1.5   Working  Group 4: Managing the enforcement process (The Netherlands)

       Working  Group 4 discussed several possible initiatives as well as short term and long te!
objectives. Priority was given to  providing mechanisms for the exchange of qualified inspectors, a
to developing a  training manual and a database  of inspector skills.
 3      IMPLEMENTATION NETWORK (ECONET)

        Within the space of a year, the Chester Network as it is known, developed from the embryoi
 state to addressing practical regulatory issues across the wide spectrum of the authorisation a
 enforcement process. The next stage was to build upon the good work being done. But this w
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•IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        327


implicated by the need for the Network to fill the role for an implementation network envisaged
ider the European Commission's Fifth Environmental Action Programme.
     Chapter 9 of the  Commission's Fifth Environmental Action Plan contains the following
ference to the establishment of the Network:

     "Integrated implementation and enforcement mechanisms will be developed as a first
     step; following this an IMPLEMENTATION AND  ENFORCEMENT NETWORK of
     environmental inspectors and enforcement bodies of the Member States and the
     Commission,  with the assistance as necessary.from the European  Environment
     Agency will be established. The purpose of the Network will be to promote consistency
     and equality in the implementation and'enforcement of Community policy and rules
     between the Member States. This will involve, inter alia, a continuing review of progress
     and problems in the  implementation of legislation, exchanges of information on
     technical developments, compliance initiatives and precautionary  actions  and
     assessments of the training needs of enforcement officers. Member States might also
     avail themselves of the Network's expertise or assistance for advice on local or national
     compliance mechanisms, audits and reporting arrangements."

     The third meeting of the Network was held in Steenokkerzeel on 9-10 December 1993, with
articipants from the United  Kingdom,  Denmark, Greece (Ellas), Germany, France, Spain, Ireland,
etherlands, Luxembourg, Portugal, Belgium and the European Commission.
     The meeting considered the reports from the working groups and how the Chester network
jght expand its activities to cover the work envisaged for the network proposed under chapter 9 of
e  Fifth  Environmental Action Programme. The  participants reiterated their common desire to
Dntinue to work on a cooperative  basis to promote  the consistent and effective implementation,
Dplication and enforcement of environmental legislation throughout the Community and agreed to
jrsue the work initiated in Chester in the form of a EUROPEAN COMMUNITY (UNION) NETWORK
DR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW (ECONET), in
jcordance with the objectives, organizational arrangements and work programme set out in Annex

     The meeting also agreed to revise the terms of reference of Working Group 2 to cover the
:tivities envisaged under the Fifth Action Programme i.e. the working group will exchange information
i the procedural and legal aspects of regulating processes to protect the environment, with a special
nphasis on the implementation of  European legislation.
     In particular, the group will focus on:
     * examining and discussing in depth'the applicability  and  application  of existing
        Community legislation;
     • collecting the factual data necessary to compare applicability and application;
     • tackling problems experienced by Member States in the practical implementation
        of Community legislation;
     • making known, through the  network,  the views and  recommendations of those
        responsible for implementing legislation in order to ensure that past experience is
        duly taken into consideration in the development of new legislation.
     The following areas of Community legislation were identified for consideration by the group
 1994-1995:
     • water
     • air
     • waste
     The group will examine the implementation and practical enforcement of these Directives in
e context of the legal, organisational and judicial structure of the Member States, and use examples
: particular industrial processes to  facilitate the analyses.
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328                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
       Working groups 1, 3 and 4 will continue to work in accordance with their existing terms
reference, as agreed at the Chester and Copenhagen meetings.
4      CONCLUSIONS

       The Chester network of environmental enforcement authorities has developed from conce
to being an integral part of the implementation of EU legislation. It also serves as a very practic
forum  for informal exchange of ideas and experience among those at the working face
environmental regulation.  One thing is very clear. The  problems associated with protecting tf
environment from industry activity are common to most if not all countries. Sharing experience throu?
well organised but largely informal networks can help each of us do our job that much better.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         329
      ANNEX 1
      TERMS OF REFERENCE OF A EUROPEAN UNION NETWORK FOR THE
      IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW (ECONET)

      Objectives of the Network

      The objective of the ECONET is to create the necessary impetus in the European Union to
lake progress on ensuring a more effective application of environmental legislation. The network
hall promote  the; exchange of information  and experience and the  development of a greater
onsistency of approach  in the  implementation, application and the enforcement of environmental
igislation, with a special emphasis on  the  Union's environmental legislation. It shall  provide a
amework for  policy makers and environmental inspectors and enforcement officers to exchange
ieas both jointly and separately and to encourage the development of enforcement structures.
      The implementation, application and enforcement process  includes:
      • the elaboration  of national legislation and  action  programmes as required  by
        European law;
      • the administrative and technical task of translating national and European legal
        standards and  action  programmes into  specific  requirements  for particular
        activities through permitting and other appropriate procedures;
      • the monitoring of compliance with environmental requirements through inspection
        procedures and other  appropriate instruments; and
      • the enforcement of environmental requirements.

      Organizational Arrangements

      The network shall build on the existing arrangements established at Chester. It shall continue
3 work in an informal way for the time being (Phase 1). Based on the experience acquired during
le informal phase, the  European Commission  will consider  submitting a proposal  for a legal
istrument to the European Environment Council before the end of 1995 (Phase 2)
      During the; first phase, the network shall consist of a plenary meeting chaired jointly by the
lember State holding the Council Presidency and by the Commission and working groups shall be
haired by the lead country or by the Commission. The number and duration of working groups shall
e limited. Their  terms of  reference shall be determined by the  plenary meeting. The network shall
perate not only through meetings, but also through national coordinators and on the basis of
orrespondence, information technology and other channels of communication.
      The costs of the network shall be borne jointly  by the Member States and the Commission.
he Commission will provide logistical  support and secretarial assistance for the plenary meetings.
he secretariat of the working groups shall be ensured by the lead country or the Commission, where
 holds the chair.
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330                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
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IRQ INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        331
HE CARIBBEAN ENVIRONMENTAL PROGRAMME AS A NETWORK FOR THE
(\RIBBEAN REGION

MNA, MARIA TERESA SZAUER

jputy Director of Environmental Department, National Institute for the Environment and Natural
isources, Carrera 10-A #20-30, 80 piso, Bogota, Colombia
     SUMMARY

     The Caribbean Environmental Programme (CEP) comprises the insular and coastal States
id Territories of Caribbean Sea, the Gulf of Mexico and their adjacent water, the United States Coast
ates, the islands of the Bahamas and south to the French Department of Guiana. In total, it adds
i to 28 States and 8 Territories. The ECC also participates, having several Territories on the region.
     The Caribbean Environmental Programme was established as a result of the belief that only
cooperative regional approach would be  suitable to address the increasing threat caused by
ismanagement of the marine environment of the region.
     In order to consolidate the Caribbean Environmental Programme, an Action Plan was adopted
 1981.  The long-term goal of the plan was to "achieve sustainable development of  marine and
iastal resources  in the Wider Caribbean Region, through effective integrated management that
ows for increased economic growth".
     Later in 1983, the Convention for the Protection and Development of the Marine Environment
 the Wider Caribbean Region was adopted in Cartagena.  The Convention entered into force in
186, and has so far been ratified by 19 States of the region.
     The programme is financed by the Caribbean Trust Fund to which all States and Territories
 the region contribute. Financial support is also obtained from the UNEP Environmental Fund and
>m Counterpart contributions.
     MECHANISMS EMPLOYED TOWARDS A NETWORK IMPLEMENTATION

     Within  the most  important mechanisms employed by the Caribbean Environmental
ogramme, for the consolidation of the programme as a Network for the Caribbean Region are:
     • Intergovernmental meetings.
     • Meetings of the Monitoring Committee on the Action Plan.
     • Expert meetings on different specific subjects.
     • The Regional Coordinating Unit (RCU) of The Caribbean Environment Programme.
     • National Focal Points, (National) Technical Focal Points.

     The  above institutional  arrangements constitute a region-wide networking mechanism,
>ordinated, maintained and facilitated by the Regional Coordinating  Unit. This networking
echanism  is  a year-round  continued  operation, where the meetings referred to above, serve as
leek-points for its smooth operation, as  well as to provide  monitoring and guidance to the
irformance and  progress of the entire Caribbean Environmental Programme,  and for strategical
jcision-making.
     In addition to the above  outlined  overall networking  mechanism, a number of more
oject-specific networking systems are continuously being developed in support of initiated  and
igoing activities  of the Action Plan.  Examples of these are  the network being developed for the
iplementation and monitoring  of the Special Protected Areas And Wildlife (SPAW), Regional
ogramme, the network of institutions developed for the implementation of  the activity on Planning
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332                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEr
and Management of Heavily Contaminated Bays and Coastal Areas, the establishment of a netwc
of Regional Programme For The Assessment And Control of Marine Pollution (CEPPOL), Focal Poir
to assist in the Caribbean Environmental Programme, activities on marine pollution etc.
       The convening of regional seminars, workshops,  expert meetings, etc., in  relation  to t
various activities of Caribbean Environmental Programme,  is a third, and very important mechanic
for networking.   This mechanism is implemented with  the  aim  of  both obtaining region-wi'
expert-input and support to the implementation of the activities, as well as to disseminate the res
of the activities, to benefit of the entire region.
       The core of the networking mechanism of the Caribbean Environmental Programme, in terr
of region-wide data compilation and distribution, is the Regional Programme on Information Syster
for the Management of Coastal and Marine Resources in the Wider Caribbean. Its objectives inclu
the development of databases of specific relevance to the Caribbean Environmental Programme, t
publication and distribution of Caribbean Environmental Programme, Technical Reports and ott
relevant documents, and the Caribbean Environmental Programme, newsletter: CEPNEWS.
2      SPECIFIC ACHIEVEMENTS OF THE CARIBBEAN ENVIRONMENTAL PROGRAMME

       In  1990 The Action Plan was modified in order to introduce the concept of five regio
programmes, in addition to an overall management function (OCCC), with the objectives to addre
in a comprehensive and  integrated approach, priority issues related to the marine and coas
environment of the  region.  The  following paragraphs provide  a brief description of  the me
achievements,  within many others, of each individual programme.
 3     OVERALL COORDINATION AND COMMON COSTS (OCCC)

       In addition to the overall coordination.and management of the Regional Coordinating I
 (RCU), and the Programme, the following main activities could be attributed to the OCCC:
       • Development of Regional Activity Centres and Regional Activity Networks (RAC/
         RAN). The concept of RAC/RAN was introduced to the Caribbean Environmental
         Programme, Action Plan in 1990-1991.
       • In keeping with Article  7  of the Cartagena Convention, and a decision from the
         1987  intergovernmental Meeting,  several steps  have been taken towards the
         development of a protocol on land-based sources of pullution for the region.
       • In co-operation with I MO, a proposal on  the establishment of a Regional Marine
         Pollution Emergency Information to be presented  to the 1994 Intergovernmental
         Meeting for approval and to be included in the Action Plan.
       SPECIAL PROTECTED AREAS AND WILDLIFE (SPAW)

       • The convening, since 1992, of the Meetings of  Interim Scientific and Technical
         Advisory  Committee (ISTAC)  to  assist  with the  implementation of the  Special
         Protected /tteas And Wildlife (SPAW), Regional Programme and the Protocol -1992.
       • Guidelines for the establishment and management of Protected Areas of the region
         -1994 - to be approved by the up-coming Intergovernmental Meeting in 1994.
       • Establishment  of Special  Protected Areas And Wildlife (SPAW), Technical Focal
         Points in most of the participating countries -1992/1993.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       333
     REGIONAL PROGRAMME FOR THE ASSESSMENT AND CONTROL OF MARINE
     POLLUTION (CEPPOL)

     • Establishment of (National) CEPPPOL Technical Focal  Points in all participating
       countries-1990.
     • Regional Consolidated Overview on Land-Based Sources of Marine Pollution in the
       region-1994.
     • A  number of on-going  and  completed  pilot studies on pesticides,  damage
       ecosystems, oil and marine debris, the development and coastal sedimentation.
     REGIONAL PROGRAMME ON INTEGRATED PLANNING AND INSTITUTIONAL
     DEVELOPMENT FOR THE MANAGEMENT OF COASTAL AND MARINE
     RESOURCES OF THE REGION

     •  On-going pilot case-studies on integrated coastal planning in five countries, and
        another three case studies being initiated.
     •  Assistance being provided to the planning and environmental management of
        heavily contaminated bays and coastal areas in eight countries of the region. In
        four of these - pre-investment studies will be carried out shortly in co-operation with
        GEF.
     •  The establishment of a Technical Advisory Committee to provide guidance to the
        above activity and to function as a network for exchange of information an expertise.
     •  Strengthening of the monitoring network of tide-gauges to assess  the changes in
        sea level and temperature rise in the region.
      REGIONAL PROGRAMME ON INFORMATION SYSTEMS FOR THE MANAGEMENT
      OF MARINE AND COASTAL RESOURCES IN THE REGION

      •  Continued development of data-bases of relevance for the management of the
        coastal and marine resources of the region.
      •  Periodic production of Caribbean Environmental Programme, Technical Reports
        and NEWS.
      REGIONAL PROGRAMME ON EDUCATION, TRAINING AND AWARENESS FOR THE
      MANAGEMENT OF MARINE AND COASTAL RESOURCES OF THE REGION

      •  Development of effective guidelines and establishment  of small-grant funds for
        training, designed around  community-based approaches towards marine  and
        coastal resources management -1993.
      •  Regional seminar on training of media personnel in reporting on coastal  and
        marine  management issues -  1992 and the  publication of  a related  media
        handbook-1994.
      REFERENCE

      This document was written based on the information prepared by the Regional Coordinating
Jnit (Kingston-Jcimaica) of the Caribbean Environmental Programme.
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334                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
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mo INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         335


NVIRONMENTAL CRIME AND THE ROLE OP ICPO-INTERPOL

uEM, S0REN

IRQ, - Interpol, General Secretariat, 50, Qual Achille Llgnon, 69006, Lyon France


     SUMMARY

     Interpol is an international police organization comprising 174 member states from all over
le world. The puipose of Interpol  is to ensure the widest possible mutual assistance between all
iminal police authorities, within the limits of the laws existing in its member states and to establish
nd develop all institutions likely to contribute effectively to the prevention and suppression of ordinary
.w crimes,
     The  principles on which Interpol's functioning is based have stood the test of time.  It has
ecome clear that the organization  cannot have teams of detectives with supranational powers who
avel around investigation cases in different countries. Briefly, international police co-operation is the
Dordinated action of the member states'  police forces, all of which supply and request information
nd services.
     The  Interpol general secretariat is the center for coordinating the fight against international
rime. Its activities, conducted at the request of police departments and judicial authorities of member
tales, are all focused  on crime prevention and enforcement. Each of the 174 member states have
ppointed an Interpol  National Central Bureau  (NCB)  as  its national department to serve as the
ermanent focal point for international police co-operation.


     INTERPOL'S MANDATE TO COMBAT INTERNATIONAL ENVIRONMENTAL CRIME

      Environmental crime is a relatively new phenomenon for any police force in the world and
onsequently also for Interpol and  its general secretariat. This type of crime is extremely diversified
nd encompasses a large number of related offenses which can be covered in either specific, general
r civil legislation depending on the legal systems and type of crimes committed  in the countries
oncerned.  In this connection it should be noted that Interpol is mandated to fight international
nvironmental crime only in cases where the crimes are being investigated and prosecuted under
•rdinary criminal law.
     As early as 1976 an Interpol resolution was adopted on combating the illegal traffic in species
if wild flora and fauna. Today, however, the general secretariat's major preoccupation is the illegal
•affic in hazardous waste and dangerous substances,  a problem which is becoming more and more
langerous for the public health in many countries.
      So far approximately 70 cases involving environmental crimes have  been reported to the
leneral secretariat by member states. About 80 percent of these cases were  reported by European
ountries, 15  percent from  the United States and the rest from Africa and the Middle East. For the
nost part the cases concern illegal transborder movements of dangerous substances, i.e. waste
•affic and dumping and/or traffic in radioactive substances.
      In this connection the basel convention, the international treaty which regulates the transborder
novements of waste among the more than 45 nations which have ratified it,  is a clear invitation to
ne international law enforcement community and  therefore Interpol to become actively involved in
ne fight against this kind of criminality.
      Under article 4 of the convention,  contracting parties agree to the following:
      • Section  3: the parties consider that illegal traffic In hazardous wastes  or other
        wastes is criminal.
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336                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       • Section 4: each party shall take appropriate  legal,  administrative and other
         measures to  implement and enforce the provisions of this convention,  including
         measures to prevent and punish conduct in contravention of the convention.

       It is obvious that  legislative tools to fight international environmental crime will mean little
unless the capabilities to enforce those laws are  also improved nationally as well as internationally.
 2     ACTIONS TAKEN BY 1NTERPOL TO FIGHT INTERNATIONAL
       ENVIRONMENTAL CRIME

       Experience has shown that investigations into cases relating to international environments
 crime encounter many problems because information is often widely scattered, there is generally n<
 central contact  point, there is no uniform international definition of "environmental crime", ant
 professional environmental criminals generally  hide their illegal activities behind a legal facad
 sometimes involving the corruption of government officials.
       interpol is currently trying to improve this situation and a number of recommendations hav
 recently been adopted by the Interpol general assembly to combat international environmental crim
 and more particularly the illegal transborder movements of hazardous waste.
       The most  recent  initiative taken by Interpol general  secretariat to combat internatiorc
 environmental crime was to set up a working group on the subject.
       The working group was established on the basis of a resolution on environmental crime whic
 was adopted at the general assembly's session in Daka in November 1992. Following this resolutior
 a series of meetings on environmental crime  - and especially on traffic in hazardous waste - will b
. held under Interpol's auspices.                                -  .
       The aim of the working party is to identify the various problems that arise in connection wit
 environmental crime investigations and to find  possible solutions.  Such solutions could inciud
 improving  co-operation and the exchange of information through existing Interpol channels an
 distributing information, possibly in the form of a handbook covering environmental crime, to membc
 states. The working party could also make recommendations regarding the adoption of legislation t
 combat environmental crime and the harmonization of existing legislation.
       The working party's first  meeting took place at the general  secretariat on 16th and 17t
 September 1993.
       Delegates  from  11 countries  (belgtunvchile, denmark, france, germany, the netherland;
 Nigeria, norway, saudi arabia, spain  and the United States) participated in  the meeting, and th
 following items were discussed:
       •  Transborder movement and dumping of waste products.
       •  Illegal traffic in radioactive substances
       «  Illegal traffic in species of wild flora and fauna.
       •  Training courses relating to environmental crime.

       Let me comment briefly on each of these items.

 2.1    Transborder movement and dumping  of waste products

       First, the illegal transborder movement and dumping of waste products.
       A typical situation is one where a company wishing to dispose of its waste is approached t
 a dealer offering to do it at a very cheap price. Instead of processing the waste, the dealer illegal
 dumps it in another country and presents the firm with  a forged invoice from an alleged processin
 company.
       More and more often, waste brokers operating at international level are handling the transpoi
 export and disposal of waste materials. There  are indications of organized crime structures. Tt"
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URD INTEBNATIONAL CONFERENCE ON ENVIBQNM'ENTAL ENFORCEMENT                         337
imes of the suspect companies may constantly change,  but the people responsible behind the
:enes remain the same. An increasing  number  of  criminals are coming to notice who have
perience in the field of white-collar crime.
     Let me give you  two examples of such cases reported to the general secretariat by Interpol
ember states.

1.1  Case example from Nigeria

     In 1988,  in Nigeria, it became known that since august 1987 huge consignments of toxic
aste had been illegally imported from  Italy and dumped in a small port called "koto town" on the
jtskirts of warri in delta state.               ]
     The main suspect in this case was an Italian national, working for a construction company in
igeria. Through a Nigerian accomplice he managed to get a permit to import  chemicals and other
instances into  the country. He subsequently transported huge amounts of toxic waste to Nigeria
 five ships from different places in Italy and Illegally dumped the waste in the port of koko town.
     Investigations revealed extensive irregularities in  the clearing of the toxic waste consignments.
one of the shipping documents described in the manifest corresponded to the items listed in the
narmaceutical pe;rmit. The items listed in the permit were clearly different  from what was imported.
     Investigations at the dumping  site revealed that the waste was toxic  and radioactive and
armful to human lives, animals, plants and the environment. Many of the drums containing the waste
ad  been damaged  due to poor handling and storage, and  others as a result of corrosion.
onsequently, the contents of the drums had been spilled, contaminating the soil, the ground water
jpplies and the nearby river in koko.
     Many international agencies and experts were  immediately mobilized to evacuate the toxic
aste and clean up the  dumping site in koko town. About 4.000 tons of toxic and radioactive waste
laterials were eventually taken back to Italy and the Italian government took over the responsibility
>r cleaning up arid decontamination of the dumping site in Nigeria
     As a result of the koko toxic waste episode the Nigerian government promulgated a decree
-  November 1988 under which  all activities relating  to the purchase, sale,  importation,  transit,
ansportation, deposit and storage of harmful waste were declared a criminal offence liable to a
laximum sentence of life imprisonment.

.1.2 Case example from the United States

     Another interesting case was reported to the general secretariat in September 1993 by the
nited States Environmental Protection Agency (U.S. EPA).
     The case,  known  as "United States vs. Stoller Chemical Company et al.",  was recently
oncluded and  resulted in the conviction of three individuals and two  corporations for illegally
ttempting to export hazardous waste from the United States to Bangladesh  and Australia after it
ad been mixed with fertilizer.
     The stoller company had been lawfully authorized to use a certain category of waste product
om copper processing plants, known  as ko61, as a feed stock in making fertilizer, principally due
)  the waste's high zinc content.  Because this reclamation process is recognized by law, ko61  is
xempt from regulations that otherwise require reporting and environmentally sound disposal of such
"aste. An investigation into stoller's environmental management practices revealed a shortage of the
o61 material during the period of time when stoller was mixing a 3000 ton shipment of fertilizer for
se in bangladesih and  australia. At about the same time, a waste broker  who regularly supplied
toller with the koS1 waste had an excess of similar waste product that also had the high zinc content
esired for fertilizer supplementation. However, this waste also contained high amounts of lead and
admium, above the toxicity limits that render it a regulated hazardous waste, which preclude its use
s a fertilizer supplement.
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338                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEME!*
       The investigation revealed that it was this hazardous waste product that was mixed with tt
fertilizer and was being shipped abroad. When confronted with this finding, the suspect broker claim*
that the waste had undergone treatment to remove the lead and cadmium. In fact, no such treatme
existed. There was also evidence of a "commission"  being paid to the waste broker for processir
which never took place. Luckily the us authorities managed to alert the receiving countries and preve
the hazardous waste from being used as fertilizers there.
       Three people have now been convicted, including the waste broker and company manag
who  authorized  his "commission". They all face significant terms of imprisonment, as well as fines

2.1.3  Measures which will be taken to improve International law enforcement in cases relating
       waste traffic and dumping

       Based on the experiences gained from these and other previous cases, a number of practic
measures have now been recommended by the tnterpol working party to improve international k
enforcement in  cases relating to waste traffic and dumping.
       The measures will all be taken within the framework of Interpol's  existing facilities, includii
the Interpol telecommunications and criminal information system.
       The aim of the measures will be:
       •  To improve the exchange of information, i.e. operational, statistical, legal and other
          information on the subject
       •  To look into the illicit waste streams
       •  To look into the modus operand! used by waste brokers
       •  To learn from previous cases
       •  To look into the possibilities of analysis of information at international level
       •  To establish an international network of knowledgeable law enforcement contacts
       •  To establish profiles of international waste and chemical brokers
       •  To  establish a database concerning the  sites which purport  to be recycling,
          reclamation of disposal facilities and which  accept waste from foreign nationals
       •  To develop a listing of toxic and hazardous waste products according to national
          laws  and distribute it to member states

2.1.4  Interpol study on environmental crime with the emphasis on the Illegal transborder movemer
       of hazardous waste

       In order to know more about this relatively new kind of criminality the general secretariat h
completed a study on environmental crime with the emphasis on the illegal transborder movemer
of hazardous waste. We have also circulated information on national and international  legislation
the Interpol member states.
       The study on environmental crime was based on the replies received from 48 member stat
general secretariat questionnaire and the results were distributed  to member states in septemt
1992.                        .
       From the documentation received it appeared that north america and western europe h
relatively more  legislation and law enforcement capabilities to deal with the problems than countri
in africa, south america and asia.
       It also appeared that countries which had limited or no statistics on environmental crime a!
had relatively limited legislation to deal with this problem including illegal traffic and dumping of was
The collection,  analysis and interpretation of statistics seems to cause tremendous problems. Firs
there is usually a considerable backlog in the collection and processing of this data. Secondly, t
statistical problems are closely connected to the legal definition of environmental crime which oft
varies considerably from country to country as well as from state to state.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         339
      It was noted that illegal waste traffic and dumping are associated with violations in other fields
f law, such as fraud, fraudulent conversion, bribery, document forgery, etc.
      In many countries, higher priority has  been given to the fight against environmental crime,
nd for example in the  United States and Canada specialized units have been established.
      Furthermore, closer co-operation has been established between the relevant police units and'
ivil administrations including environmental control agencies.
      Cross-border co-operation  to combat international  environmental crime has  so far been
arried out on a regional basis and  between  neighboring countries. An example of this is the
o-operation  between law enforcement agencies  in Canada and  the United States and between
ountries in western europe.
      On an intsrnational level, the basel convention is a very important tool to fight this kind of
riminality. Many of the countries which have signed the basel convention are presently in the process
•f developing domestic legislation before they can ratify the treaty. However, as already mentioned,
/e will need to improve the capacity to conduct international police investigations if this convention
; to be effective.

 .2    Illegal traffic in radioactive substances

      The most recent phenomenon which we have classified within the context of environmental
 rime is the illegal traffic in radioactive substances. This problem is currently predominant in europe
/here radioactive substances have been offered for sale more and more frequently after the collapse
if the former eastern bloc,  in most cases these substances do not even exist and the only intention
s to defraud, in some cases, however, radioactive substances have been located and seized by the
lolice. Both the quantities of the radioactive  substances which  have so far been seized and their
enrichment are far too low to be used in the production of nuclear weapons. However, Ihe substances
;an  be extremely dangerous for individuals who  come into contact with them. Tiny quantities of
adioactive substances could kill a large number  of human beings  if they were introduced into a
 entilation system, for instance or into drinking water.
      At the request of  germany, a meeting  on this subject was held at the general secretariat on
 9th and 20th January this year. It was  attended by  representatives from 24 european countries. At
ne meeting  a list was drawn up of police  liaison officers to  contact  in urgent cases involving
adioactive substances. Furthermore, a  proposal was made that a working  party should be
iStablished under the  auspices of  Interpol to deal  with the subject. However, the illegal traffic in
adioactive substances is not only a european problem.
      With this in mind  it was decided to make the subject of  radioactive substances an integral
)art of the program of the  present working party on environmental crime which I referred to earlier.

!.3    Illegal traffic in species of wild flora and fauna

      As to the illegal traffic in species of wild flora and fauna an Interpol resolution on this  specific
opic was adopted in 1976  as a result of the Washington convention, the so-called convention on
iternational trades in endangered species of wild fauna and flora, also called "cites", which has now
>een signed by 120 countries,
      As you know, cites is part of the united  nations environment program with its secretariat based
n geneva.  Its task is to preserve species of wild  fauna and flora which are threatened with extinction.
T practical terms this means to control the international trade in them by issuing export and import
 censes and check the validity of the licenses presented.
      Jo carry out its task, it is crucial for this organization to  get support from the customs and
ralice authorities in particular.
      In this connection, Interpol plays an important role as a coordinator between national police
orces and cites in geneva. The previously mentioned Interpol working party is currently exchanging
nformation on the following points:
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340                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
       •  Persons and/or companies involved in the illegal trade in flora and fauna
       •  Organizations involved in this trade
       •  Methods/trends of such illegal trade, including the use of false cites documents,
          forgery and means of transport

2.4    Training courses relating to environmental crime

       As to training programs relating to environmental crime, it is important to note that polic
officers dealing with these cases require special  skills including scientific knowledge as well as
good understanding of police tactics and investigation techniques, criminology and white collar crimi
       A number of training  programs on the subject are currently taking place at national ar
regional level and the working party intends to co-ordinate these activities and to make sure th
experience and knowledge are being shared by the various countries involved in these projects.
        Germany is currently organizing such training programs for european police officers, and chi
will host an arnerican regional training course on environmental crime which is planned to take plac
in Santiago in march next year. Also, a number of national training programs on environmental crirr
are being held  mostly in north america, western europe and industrialized asian countries such i
japan.
 3     FACILITIES AVAILABLE IN INTERPOL FOR COMBATING INTERNATIONAL
       ENVIRONMENTAL CRIME

._; _ ... Interpol and its genera! secretariat already offer a wide range of possibilities for combatir
 international environmental crime.
       Let me mention just a few very important facilities which are currently available to the 1"
 Interpol member states.
       First, system for exchanging  information rapidly  and under secure conditions through  o
 independent world-wide telecommunications network. The system allows for the use of all standa
 forms of communication, ranging from telex to satellite via the computerized facilities now in operatic
 (amss, x.400 system);
       Second, a computerized criminal records' system including archives, indexes and files of tl
 names,  fingerprints  and photographs  of  international offenders,  investigation  analyses ar
 summaries, etc.
       Third, international notices; notices  circulated  at the request  of national authorities abc
 offenders recorded or wanted at international level, stolen property, methods used by criminals et
      " Fourth, an analytical criminal intelligence unit (aciu)     providing professional analysis
 criminal information;
       Fifth, our legal and police expertise.
       The general secretariat co-ordinates  the organization's activities and maintains and develoi
 co-operation with other  international organizations including;
       •  The commission of the european communities in brussels
       •  The world wildlife fund in Washington D.C.
       »  The environmental protection agency in United States
       *  The regional environmental center for central and eastern europe in budapest
       »  The convention on international trade in endangered  species of wild fauna and
          flora, "cites" in geneva

       When we receive information on traffic in hazardous waste  for instance we immediafo
 respond to the countries concerned  if elements in the message appear in the general secretaria
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IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         341
is particularly of course if this information is not already known to the countries. This response is
irmally sent out immediately and in any case within 24 hours.
     Furthermore, if we see crime patterns or trends we send out a general broadcast to inform
d warn countries for example regarding a group of criminals or a special kind of modus operand!,
is message can be sent all over the world within seconds,
     Interpol  provides the machinery for  international police co-operation which is increasingly
cessary  In today's  world. Criminals  are  not impeded  by national frontiers. Law enforcement
lencies must work together in spite of the vast differences in laws, customs, judicial systems and
v enforcement methods.
     Interpol's main mission is to facilitate and foster better understanding and closer co-operation
itween members of the international law enforcement community, and also with other appropriate
ernational bodies.
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342                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
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(IRQ INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        343


ORTH AMERICAN TRADING PARTNERS: CANADA, UNITED STATES, AND
EXICO AS AM ENFORCEMENT NETWORK

JLTON, SCOTT C.1 and SPERLING, LAWRENCE I.2

Deputy Assistant Administrator
Senior Attorney-Advisor

ffice of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 401 M
reet SW, Washington, DC 20460


     SUMMARY

     This paper will suggest several possible components of a successful international network of
joperation in environmental enforcement. It will then examine the evolution of the environmental
iforcement  network in North  America, including the recent  creation  of the North American
ommission for Environmental Cooperation. Finally, it will suggest ways to enhance environmental
iforcement cooperation in North America in each of the areas of cooperation previously outlined,
lalyzing several legal and policy challenges in building an international enforcement network.
     THE CHALLENGE AND OPPORTUNITY OF A NORTH AMERICAN ENVIRONMENTAL
     ENFORCEMENT NETWORK

     The  United States, Canada and Mexico  have committed to strengthening environmental
iforcement within each nation, as well as mutual support and cooperation  in carrying  out this
ission.  In  recent years, the three  countries have begun exploring a variety of ways in which
joperation can enhance their ability to address  environmental problems. The three countries are
3w presented with an important new opportunity to enhance their environmental  protection
ipabilities through new international arrangements which formalize an evolving  network  of
iforcement cooperation. The experience of enforcement cooperation in North America suggests a
nge of new possibilities for similar networks to develop around the  globe.
     The entry into force this year of the North American  Free Trade Agreement (NAFTA)  marks a
sw era of challenge and opportunity in working to achieve environmental protection in North America.
AFTA's promise;  of increased commerce brings with it a potential increase  in domestic and
ansboundary environmental risks.  In addition, free trade requires a level playing field of  effective
iforcement of each country's environmental laws, to prevent unfair  trade advantages which might
ise from inadequate enforcement.  NAFTA's environmental side agreement, the North American
greement on Environmental Cooperation (NAAEC), (1) however, establishes ground-breaking new
Dmmitments to Eiddress the environmental challenges of regional free trade.  At the same time, this
novative Agreement  creates a new institutional framework for building on past experiences  to
svelop an  increasingly sophisticated  and effective network of environmental enforcement
joperation.
     BUILDING AN ENVIRONMENTAL ENFORCEMENT NETWORK

     This section  offers an analytical framework for developing international  networks  of
ivironmental eniorcement cooperation, describing several possible key aspects and components.
any of the components are suggested by  past experience in enforcement cooperation in North
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344                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEI*
America; others  are yet to be fully utilized, but show promise in enhancing the  effectiveness
enforcement cooperation in North America and elsewhere.

2.1    Respect for national sovereignty

       Law enforcement is a unique attribute of national sovereignty. The environmental inspect
represents the power of the State to impose order through the rule of law — a function which prope
lies within the exclusive territorial jurisdiction  of  individual nations.  Thus,  respect for natior
sovereignty must be a fundamental guiding principle in developing a network of cooperation
environmental enforcement. The challenge  is to build a network of cooperation which maximizes ti
capacity of each country to enforce its environmental  laws, which is responsive to transbounds
effects of pollution, and which is solidly based on the principles of sovereignty and comity.

2.2    Institutional frameworks for cooperation

       Although  international cooperation on  environmental enforcement often develops on
ad-hoc basis, a rational  institutional framework for cooperation can enhance the success of
international  enforcement network.   Mechanisms for cooperation may be  formally created
international agreement, or may be informal. Attention to the rational design of such institutions
needed on all levels of interaction: multilateral, bilateral, and internally,  among agencies at the natior
and political subdivision levels.
       An effective enforcement network combjnes partnership among the various actors within a
among each government,  empowering all stakeholders in the enforcement process. Institutions
cooperation can be structured to allow participation by all relevant agencies, including national a
local  environmental authorities,  and other law enforcement agencies (e.g. customs, transportatic
and criminal  enforcement authorities).  They can also be structured to promote cooperation amo
equivalent authorities of the countries involved.  At  the same time, they can be designed to accoi
for different organizational structures and levels of centralization among the governments.

2.3     Cooperation in solving environmental problems

        Cooperative relationships in environmental enforcement often develop in response to spec
environmental problems.  Transboundary environmental problems, for example, provide  a nati
back-drop for developing a network of cooperation.  Countries also often face similar  dome;
environmental problems.  For example, they may share similar industries which emit similar pollutar
and are sometimes owned by common multinational corporations.  Thus, enforcement cooperat
may be  of assistance in helping each country solve even wholly domestic environmental probler
There are many possible types of cooperation,  depending on the type of environmental problem

2.3.1    Strategic priority-setting and targeting

        By establishing common goals, priorities, and strategies for using enforcement tools to addn
common environmental problems, countries can maximize the impact that their enforcement actic
will have on compliance in their respective jurisdictions. Industry will be more likely to comply with
law of the jurisdiction in which it operates, when its managers know that the governments have adop
a conscious, cooperative strategy to mutually enhance their respective enforcement capacities.
        Countries may address local transboundary environmental problems through common resc
to focus enforcement resources on a particular type of pollutant, industry, environmental requirerrw
or sensitive transboundary ecosystem.  Countries may also demonstrate their common resolve
address environmental problems caused by similar types of operations in each country, even wh
transboundary impacts are not apparent.  For example, coordination in strategic priority-setting r
be appropriate following an agreement by the countries to harmonize and upgrade their environmei
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•IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         345


andards applicable to a particular industry or category.  This kind of sector-based cooperation and
rgeting  can seive a  key  role in ensuring the  level playing field required for free trade between
wereign nations.
      Strategic cooperation requires a high degree of sensitivity to concerns that "joint" decisions
Dout enforcement targets  may be perceived as compromising national sovereignty.  This problem
an be  avoided, however. For example, common priorities can be determined mutually by the parties
volved,  and then implemented by each country's exercise of its own authorities, taking independent
itbrcement actions within  its territory in a manner which  respects the exclusive territorial jurisdiction
: the other countries.  Countries may also cooperate in developing information to identify common
Tvironmental problems, but unilaterally  choose a different mix of tools to address the problem.
nforcement represents one such tool, which countries independently may employ with  differing
agrees of emphasis relative to other tools, such as compliance promotion activities.

3,2   Cooperative compliance promotion

      Countries may benefit from cooperative efforts to encourage voluntary compliance by industry.
Dr example, countries may collaborate in encouraging multinational corporations to ensure that their
ireign operations comply with the host counfry's environmental laws, undertake environmental
Dmpliance audits, or  initiate voluntary  plant or management improvements  which exceed
ivironmental standards and prevent pollution at  tine source.  Countries may  also cooperate in
sveioping  and presenting technical compliance information to common industries which operate
omesticaliy withm each of the countries.

3,3   Cooperative compliance monitoring

      Cooperation may be particularly useful in routine monitoring to detect violations. For example,
le transboundary movement of hazardous substances,  wastes, and other regulated products,
rovides  a perfect forum for development of cooperative links in this area. Monitoring of ambient air,
ater and groundwater quality in one country's jurisdiction may also provide useful data to identify
olations committed by facilities in a neighboring jurisdiction. Technology can play an essential role
i  developing mutual  capacity to detect violations, such  as through collaboration in developing
ectronic databases and direct electronic data reporting capabilities for tracking of transboundary
lipments of regulated materials. (2)

,3.4   Cooperation on specific enforcement cases

      The enforcement authorities of different countries may assist each other in investigations of
oecific  cases of violations.  Such  cooperation may facilitate enforcement of environmental
jquirements for transboundary shipments of hazardous wastes, toxic chemicals, pesticides, and
shicies,  when materials found in one country  provide evidence of a violation of the other's laws.
ooperation may also be desired when transboundary effects of air or water pollution is evidence of
  violation  in the country where the pollution originated, or when a foreign  corporation exerts
lanagement control over a local subsidiary which  is in violation of the host country's laws.
      In addition to case  investigations, cooperation may assist in fashioning appropriate remedies
ir violations.   Violations  in  one country  may cause environmental threats  in another,  requiring
Doperation to ensure that adequate authorities are brought to bear to redress injuries that cross
iternational borders. (3) A sound enforcement network can provide for cooperation at every stage
f case development,  from initial investigations to implementation of enforcement remedies.
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346                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
2.3.5   Sharing experiences to build enforcement capacity

       The countries in an enforcement network may be able to enhance their enforcement capacil
by sharing their experiences, and by taking advantage of economies of scale provided by combine
capacity-building efforts.

2.3.5a  Consultation on laws and policies

       Countries may be  able to learn from their different approaches to, and  experiences ii
environmental regulation and enforcement. Consultations among countries to learn about each other
environmental laws and policies for responding to violations can enhance mutual capacity-buildini
An enforcement network may involve formal exchanges, such as joint seminars and conferences, i
well as the informal exchange that will come with  increased collaborative efforts on  enforceme
matters.

2.3.5b  Training and technical assistance

       Technical  cooperation in the development  of tools  and  technologies for identifyir
environmental violations may enhance each country's enforcement capacity.  Cooperative training
the principles of environmental enforcement, and in the techniques of  environmental inspectio
provide similar opportunities.  Inspectors of one country may be invited as observers durir
inspections on another country's territory, at facilities or border crossings. Such field training exercisi
can occur without compromising the sovereignty of the government in whose territory the facility lie
For example, it can be made clear to all parties that the foreign trainee's presence is one of observ
status only and that he or she is not present to exercise inspection authority over the visited facili

2.3.6   Enforcement results information-sharing

       Cooperative sharing  and public disclosure of  information  on enforcement  activities a
facilitate dialogue  on the role of enforcement in addressing environmental  problems.  Sharii
information about enforcement results will encourage the countries to develop tools for evaluatii
program success, and the countries may be able to learn from each  others' efforts in this area. Q
challenge will be to address the  comparability of methods employed in each  of the countries
account for environmental enforcement activities and accomplishments.

2.4    Communications strategy

       Coordinated communication to the public of the cooperative activities undertaken by t
countries has great potential to encourage  compliance behavior. Effective communication
cooperative enforcement activity can  maximize  the efficiency of  limited  enforcement  resource
by discouraging  companies from  committing  future environmental  violations.  Coordinat
announcements can achieve economies of scale in encouraging compliance, by getting the messa
to a wider audience that governments are cooperating to enhance their enforcement capacities a
address violations.
 3     THE EMERGENCE OF A NORTH AMERICAN ENVIRONMENTAL ENFORCEMENT
       NETWORK

       The United States, Mexico, and Canada  have begun to  experiment  with many of I
 components of enforcement cooperation outlined in the previous section. This section reviews 1
 evolution of North America's environmental enforcement network to date, beginning with bilate
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IRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         347
operative efforts, and leading  up to the  creation of a new, trilateral institutional structure for
forcement cooperation.

I     U,S,/Mexico environmental cooperation

     Environmental cooperation between the U.S. and Mexico began in the late nineteenth century,
:h an early focus on protecting water resources. In 1944, the U.S. and Mexico entered the Treaty
 the Utilization  of Waters of the Colorado and Tijuana Rivers, and the Rio Grande. (4)   This
ireement established the International Boundary and Water Commission (IBWC), with authority to
dertake projects dealing with water quality and conservation on transboundary rivers.  The IBWC
so serves as a vehicle for water quality monitoring and data collection,  and has limited jurisdiction
er groundwater.
     In  1983, tine U.S.  and Mexico  entered an Agreement on Cooperation for Protection  and
provement  of the Environment in  the Border Area (the "La Paz" Agreement). (5) The La Paz
jreement provides  a framework for cooperation  between the two countries on  protecting the
vironmeht in the 100-kilometer area on each'side  of the international boundary.  Since 1983, the
S. and Mexico have negotiated five annexes to the La Paz Agreement, addressing themes such
 border sanitaticn problems, emergency planning for responding to pollution accidents, air pollution
Dblems, and transboundary movement of hazardous wastes.
     Cooperative projects under the La Paz Agreement are implemented through a series of
national Work Groups. Originally, four Work Groups were set up to address: Air, Water, Emergency
ssponse, and Hazardous Waste.  In 1991-1992,  two additional Work Groups were  created, a
illution Prevention Work Group, and a Cooperative  Enforcement Strategy Work Group.

1.1   Early enforcement cooperation experience: transboundary movement of hazardous waste

     The initial  U.S./Mexico cooperative relationship on environmental enforcement under the La
iz Agreement centered on the transboundary movement of hazardous waste.  Mexican law requires
•eign companies operating "maquiladora"  (6) facilities to return hazardous wastes to the country
 origin of the raw materials. Mexico  also accepts  substantial quantities of hazardous waste  from
3 U.S. steel industry for  recycling, while prohibiting hazardous waste  imports for disposal.  This
o-way flow of waste between Mexico and the U.S. gave rise to a cooperative relationship in  both
iuntries' efforts to enforce their hazardous waste export and import laws.
     Under Annex 111 to the La Paz Agreement,  negotiated in 1986, the U.S. and Mexico agreed to
isure enforcement of their respective domestic laws  for transboundary shipments of hazardous
jste, and to provide mutual assistance to increase the capability of each Party to enforce its  laws
>plicable to transboundary shipments.  The Annex calls for a program of cooperation, including
change of information from monitoring and spot-checking of transboundary shipments, (7)
     The U.S and Mexico focused early efforts on  developing a joint capacity  to monitor
uisboundary waste shipments, in accordance with these  bilateral commitments.   This effort has
ilminated in the development of a binational Hazardous Waste Tracking System (now known as
iazTracks").  A  Tirst-of-its-klnd effort,  the system matches information from the U.S. and Mexico
icking transboundary waste shipments.  It provides a useful tool for monitoring compliance with
)th countries' requirements and identifying possible violations. (8)  The U.S. and Mexico also began
 cooperate  in promoting industry compliance with both countries' transboundary waste shipment
quirements, through an  annual Maquiladora Conference and regular outreach to the maquiladora
ants and their U.S. parent corporations.

1.2   Toward a cooperative enforcement strategy

     The disposition of hazardous waste from the maquiladora industry became a central focus
 public concern during the U.S, debate over the North American Free Trade Agreement. There was
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 348                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEI
 great public concern that the U.S.-owned maquiladoras could escape expensive U.S. complian
 costs by dumping its: wastes illegally in Mexico instead of complying with Mexico's requirement
 return them to the U.S.  In addition to posing severe environmental risks in Mexico, such practic
 were thought likely to result in environmental harm in the U.S., through transboundary surface-wat
 groundwater and air pollution.  Public concern about maquiladora compliance with transboundi
 waste  shipment requirements was indicative of a broader concern about the potential impact
 differential enforcement practices on a company's decision to locate a plant, once tariff barriers
 international trade were lowered between the U.S.  and Mexico.
        In 1991, the U.S. and Mexico added to the La Paz Agreement work groups a new Cooperat
 Enforcement Strategy Work Group (Enforcement Work Group). This new work group was created
 coordinate and focus  attention on cross-cutting  enforcement issues, with the goal  of mutus
 enhancing enforcement capacity while respecting national  sovereignty and  jurisdiction.  T
 U.S./Mexico Border [Environmental Plan, developed in 1992, calls for the Enforcement Work Gro
 to implement a cooperative enforcement strategy which emphasizes targeting of enforcement actic
 by each government against priority targets; pollution prevention and waste minimization as a princii
 goal of enforcement; and cooperation in developing a communications capability, using the stigi
 of unfavorable publicity to encourage industries to avoid the risks of noncompliance. (9)

 3,1.2a  Initialcooperjatignin case investigations and voluntary compliance promotion

       - In September of 1991,  soon after establishment of the Enforcement Work Group, Mexic
 Secretariat of Urban Development and Ecology (SEDUE) provided information which assisted EPf
- developing a cluster of cases enforcing  U.S. import/export laws.  Eight of these cases  invol\
 violations related to hazardous waste exports to  Mexico.  A cooperative pilot effort to encours
 voluntary compliance with Mexican laws- by U.S.  firms with subsidiary operations in Mexico v
 undertaken in 1991 and early 1992. Several U.S.  companies pledged to use best efforts to ens
 that their  Mexican operations comply  with Mexican law, and some  companies submitted d
 evidencing a compliance review. (10)

 3.1,2b  Cooperative targeting and communication  strategy

        In June 1992, Mexico and the United States announced the first cooperative effort at target
 enforcement actions. The actions were focussed in the border area, demonstrating that environmei
 compliance in  the border area was a common priority.  Mexico  announced that it conducted
 inspections with violations at 22 facilities, resulting in 8 shut-down orders and 4 performance be
 forfeitures.  On the same  day, the United States announced that it had undertaken 15 civil judi
 and administrative enforcement actions, and issued 2 criminal indictments. (11) So far, the U.S. ca
 have resulted in collection of at least $273,800 in civil and criminal penalties, as well as imposil
 of environmental restitution and cleanup requirements, and agreements by facilities to undert
 supplemental environmental projects, such as facility audits  or process/management changes
 reduce pollution  beyond that required by regulations.  This initial effort at cooperative targeting
 enforcement activities by  the U.S. and Mexico also provided  an initial experience in coordinai
 efforts to communicate enforcement results.

 3,1,2c  Cooperative training and technical assistance

        In June to Jury of 1992, Mexico reorganized  it environmental enforcement authorities int
 new Secretariat of Social  Development (SEDESOL), with an independent Attorney General's Of
 for  Environmental Protection  (PROFEPA) in  charge of SEDESOL's  environmental inspector,
 PROFEPA turned to the initial task of reforming and upgrading its environmental inspectorate, ;
 launched an aggressive new program of inspections, enforcement actions, and compliance auc
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    INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        349
      Cooperative training and technical assistance between Mexico and the United States helped
EDESOL build this new enforcement capacity. From March, 1992 through July, 1993, EPA conducted
x "Multi-Media" Inspector Training courses, providing training  to 370 SEDESOL inspectors
ountrywide, including 200  in the U.S./Mexico border  area. Two SEDESOL officials received
PA-sponsored training in August-September of 1992 in  the use of aerial surveillance to  identify
otentia! waste (disposal sites. Twenty SEDESOL  personnel  participated in an EPA course in
nvironmental impact  assessment  in December, 1992. In July and October of 1992,  EPA  and
EDESOL inspectors participated in joint training programs in volatile organic compound (VOC)
ispection techniques, while in April of 1992 and April of  1993, EPA hosted two Hazardous Waste
ispector Training Workshops, attended by 34 SEDESOL inspectors.

,1.2d  Cooperative compliance monitoring and case Investigations

      During this period, EPA and SEDESOL established subgroups to cooperate in enforcement
ctivities for Texas/Tamaulipas and Califomia/Baja California, facilitating information exchange  and
nforcement actions, U.SJvlexico case-specific cooperation continued to increase. Cooperative case
westigations have resulted in the initiation of cleanup at  several  illegal waste sites in Mexico  and
ivestigations into potential violations in both countries. (12)
      The two countries have worked to improve transfaoundary shipment surveillance efforts. In the
ast, border surveillance efforts focused on occasional "spot checks", in which U.S. officials set up
isible  surveillance teams,  often with Mexican participation. Albeit an excellent field  training
pportunity, these "spot checks" rarely detected significant violations, because of their visibility to
ould-be violators. The U.S., and the border states, thus adopted  a new strategy of building the
apacity for more routine checking for transboundary shipment violations.
      This was (tone in San Diego County, California, through a task force of U.S. federal and state
gencies.  U.S. and Mexican Customs met in Tijuana in March 1992 to discuss hazardous waste
ispection and  safety. This sparked increased binational customs coordination, which  almost
nmediately led to the U.S. indictment of an illegal hazardous  waste exporter. Since  then,  several
dditional  cooperative investigations have been undertaken involving shipments at several border
rossings. (13) EPA recently began funding  U.S. border  states to  provide a routine presence of
nvironmental inspectors' at Border''crossings'; 'arid to encourage bilateral cooperation through  joint
eld training and  surveillance exercises. These efforts have promise in building a bilateral partnership
•f agencies at all levels of government. (14)
      In the meantime, the Hazardous Waste Work Group has continued to develop the binational
lazardous Waste Tracking System ("HazTracks"). The system produced enforcement results in June
'f 1993, when the United States filed a number of RCRA enforcement cases based on Tracking
system data. Additional U.S. cases developed from the database have  since been filed, and  EPA
.nd SEDESOL a-e working toward improving the utility of the database as  a tool for identifying
iolations  of Mexican  waste export requirements, and potentially targeting maquiladora facilities
uspected of not exporting their hazardous wastes,

•,1.2e  Consultations and exchange of enforcement results data

      EPA and SEDESOL have begun mutual consultations on environmental laws and enforcement
iQlicies. In March of 1993, SEDESOL hosted a visit by EPA lawyers, including enforcement attorneys,
a gain a better understanding of  Mexico's  environmental laws, as well as  its enforcement  and
•nvironmental audits programs, EPA provided SEDESOL with information on its policies for assessing
lonetary penalties in enforcement cases.
      Finally, EPA and SEDESOL have begun exchanging statistics on enforcement  activities and
iccomplishments. (15) (See  box). This effort  provided initial experience in dealing with the  nations'
Itffering methodologies of accounting for enforcement activities and results. Differences in reporting
apabilities and methodologies were found to stem from the differing degrees of centralization, stages
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350                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN
   U.S./Mexico Exchange of Enforcement Statistics (October, 1993)

   U.S. Enforcement Program:

          In fiscal years 1992 and 1993, EPA estimated that in the border region more than 351
   EPA inspections and 1671 state inspections were executed, 15 civil judicial enforcement actions,
   114 administrative actions, and 3 EPA led-cr!minal prosecutions were initiated,  enforcing the
   Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act
   (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act
   (CERCLA).*

   Mexican Enforcement Program:

          From the creation of the  Environmental  Prosecutor's  Office in July, 1992 through
   September,  1993, SEDESOL conducted approximately  16,386 inspections, resulting in
   temporary partial closure of 1,161 companies, 216 temporary total closures, and more than
   100 permanent closures. Some 2,447 of these inspections were carried out in the border area.
   Of the 2,447 inspections, 202 resulted in temporary partial closure and 58 in temporary total
   closure.

   * Note:  Although U.S. nation-wide data was not available  at the time of this data exchange,
   EPA now  estimates  that during FY 1992 and 1993,  699 civil judicial case referrals, 7406
   administrative actions,  and 247 criminal prosections were initiated at  the federal level; and at
   least 14,321 administrative actions and 930 civil judicial referrals were  initiated by states, for all
   EPA-administered statutes. During FY 1993, more than 36,000 inspections were conducted by
   EPA and state agencies under the CAA, CWA, and RCRA. This data derives from  state and
   Regional reporting for each individual EPA-administered statute, illustrating some of the chal-
   lenges in addressing comparability to data generated in a more centralized enforcement pro-
   gram.
 of development, and remedies sought by the respective enforcement programs. This experience I
 both agencies with the recognition that comparability of enforcement statistics, and defining comm
 terms for articulating enforcement results, would present a challenge in the new North Americ
 Commission for Environmental Cooperation.

 3.2    US/Canada environmental cooperation

 3.2.1   Great Lakes protection

       Environmental cooperation between the United States and Canada, like that between the U
 and Mexico, began  with a focus on transboundary water resources. In 1909, the U.S. and Cana
 entered into the Boundary Water Treaty, committing the countries to cooperation in protecting 1
 Great  Lakes, and creating the International Joint  Commission (UC),  to  coordinate and ms
 recommendations on such cooperation. (16)  The Boundary Water Treaty was updated in 1972, w
 the Great Lakes Water Quality Agreement  (GLWQA),  setting  forth a framework for enhanc
 cooperation to protect the Great Lakes. (17)
       A 1987 Protocol to the GLWQA called for the two countries,  in consultation with state a
 provincial governments, to designate Areas of Concern which have been degraded by pollution. 1
 Protocol calls for the states and provinces to develop and implement Remedial Action Plans (RAF
 detailing plans for remediation in each of the Areas of Concern.  In addition,  Lakewide Managem-
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         351
ans (LaMPs) must be developed, for implementation at the federal level, with the goal of improving
e quality of open lake waters. (18)
      Much of Ihe cooperative work to date under the GLWQA has focussed on the development,
ither than enforcement, of new regulatory controls to protect the Great Lakes from toxic discharges,
id implementation of non-regulatory approaches that encourage pollution prevention and designate
•eas for special protection. (19)   The GLWQA, however,  provides  a bilateral framework for
Doperative efforts in implementing  common strategies for targeting violators and enforcing  the
sgulations developed by both countries to protect the Great Lakes.

.2.1 a Cooperative priority-setting: unilateral enforcement targeting

      Although the two countries have not yet engaged  in cooperative enforcement activities to
irget violations in the Great Lakes Basin, EPA has undertaken a number of unilateral enforcement
litiatives as part of the U.S. strategy for implementing the GLWQA. (20)  Discrete high-risk geographic
reas are selected for concentrated inspections and enforcement activity. Amongst other factors, an
rea may be selected for geographic targeting based on its designation as an Area of Concern under
le GLWQA. (21}
      Enforcement targeting in the Great Lakes has also been linked to broader pollution prevention
nd  cleanup initiatives.  In negotiating enforcement case settlements, strong emphasis is placed on
ommitments  for the violator to undertake  "supplemental environmental  projects",  such as
jmediating more pollution than he or  she  is directly responsible for, or conducting environmental
udits leading to process or management changes to reduce pollution at its source. EPA has found
lat  its leverage for negotiating meaningful pollution prevention and cleanup projects is enhanced
irough "multimedia" enforcement actions which allege violations of  more than one U.S. statute and
•Dilution to more than one environmental medium in a single proceeding. (22)

.2.2  Transboundary movement of hazardous waste

      The U.S. and Canada enjoy  a  history of growing cooperation in  assuring compliance with
squirements  pertaining to the transboundary movement  of hazardous wastes.  In 1986, the  two
ountries entereci the Agreement Between the Government of the United States of American and the
aovernment of Canada Concerning  the Transboundary Movement  of Hazardous Waste.  (23) The
igreement obligates the countries to ensure that their domestic  laws  are  enforced within  their
sspective jurisdictions, and commits the U.S. and Canada to cooperate in monitoring transboundary
hipments to ensure compliance.

l.2.2a Cooperative compliance monitoring

      EPA has conducted occasional  border spot checks on the U.S./Canada border, working with
he U.S. Customs Service and other U.S. federal  and state officials in  monitoring transboundary traffic
o detect illegal hazardous waste shipments.  These  spot checks are usually done in coordination
vith Canadian  environmental and Customs officials, with  Canadian officials setting up their  own
:orresponding spot checks,  or with  U.S. and Canadian officials participating as observers at the
>thers' border crossing.
      In 1989, EPA enforcement officials learned through press  reports of an alleged criminal
:onspiracy to export PCBs and hazardous waste, mixed in fuels, from New York to Canada.   The
>ress articles alleged that these contaminated fuels had been sold to customers in Southern Ontario
md Quebec. The perpetrators were  allegedly profiting from the dilution of their fuels with hazardous
vaste, and then paying  tax  on only  the  undiluted  fuel.   This  incident led  to increased, direct
xmnmunication between the countries' environmental agencies.  Both countries stepped up  their
jompliance monitoring efforts.  Canada limited the number of  ports of entry available for such
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352                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
shipments to facilitate monitoring, and Canadian federal and provincial officials did extensive sampiin
of shipments to investigate the allegations. (24)
       U.S. and Canadian official communicate regularly over the processing of hazardous wast
export notifications, often leading  to cooperation in investigating suspected violations. (25)

3.2,3   Other areas of cooperation: case-specific matters and consultations

       An  increasing  number of  circumstances have arisen involving the need for  cooperation i
investigating specific cases in other contexts. For example, EPA has encountered a number of case
requiring service of complaints or information-requests on Canadian  companies under tie U.J
Comprehensive Environmental  Response,  Compensation  and Liability Act, (26)  and the Toxi
Substances Control Act. (27)  This has provided the basis for increasing experience by the tw
countries in procedures for requesting foreign assistance in  litigation of civil enforcement cases.
       Although no formal structure exists for U.S./Canada environmental enforcement cooperatioi
environmental enforcement officials of the two countries consult regularly, Canadian officials attende
a recent meeting of EFA Regional and Headquarters enforcement officials to discuss enforcement <
transboundary waste regulations,  each country sharing information on how they track transboundai
waste shipments. (28) In September, 1993,  enforcement officials of EPA and Environment Canad
met in Ottawa to  develop a mutual understanding of each country's system of environment!
regulation and enforcement. Similar meetings have taken place between EPA and the Ontario Mintsft
of the Environment in Toronto.
       A NEW TRILATERAL ENFORCEMENT NETWORK
        NAFTA's environmental side agreement, the NAAEC, provides a new legal and institution.
 context within which to build North America's environmental enforcement network, supplement!!"
 existing bilateral activities. The Agreement creates the North American Commission for Environment
 Cooperation (NACEC), a unique new institution for conducting cooperative enforcement activities an
 promoting effective enforcement of each nation's environmental laws. The Commission consists i
 a governing  Council  of cabinet-level (or equivalent)  officials of the Parties; a  Secretariat, whic
 provides technical, administrative and operational support to the Council; and a Joint Public Adviso:
 Committee. (29)

 4.1     Obligation to effectively enforce

        The Agreement's centerpiece is its obligation  that each country "effectively enforce  i
 environmental laws and regulations through appropriate governmental action." (30) Article  5 give
 examples  of a number of possible elements of an  effective  enforcement program which wou
 constitute "appropriate governmental action". (31) (See box).
        The establishment of the obligation of each country to effectively enforce its environment
 laws has broken new ground in the developing regime of international environmental law.  Howevt
 in negotiating this innovative concept, the Parties took account of the variety of possible methods f<
 implementing an effective enforcement program.  The resulting Agreement therefore provide
 substantial flexibility to the Parties in selecting appropriate tools in the design of their own enforceme
 programs.  Rattier than setting forth precise standards for determining the effectiveness of eac
 country's enforcement actions, the Agreement leaves this level of detail to future development. Mo
 precise guidance for measuring the effectiveness of a "country's  enforcement program is thereto
 likely to evolve through cooperative efforts of the  Parties to improve their programs and to repc
 enforcement results.  (See Section 4.3).  Case-by-case  resolution of individual disputes among tt
 Parties alleging ineffective enforcement may also contribute to defining the scope of the obligatior
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IRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         353
^Jorth American Agreement on Environmental Cooperation, Art. 5

3ossible Elements of an Effective Enforcement Program Constituting
Appropriate Government Action:

a.  Appointing and Training Inspectors.
b.  Monitoring compliance and investigating suspected  violations,  including through on-site
    inspections!.
c.  Seeking assurances of voluntary compliance and compliance agreements.
d.  Publicly releasing non-compliance information.
e.  Issuing bulletins or other periodic statements on enforcement procedures.
 f.  Promoting environmental audits.
g.  Requiring record keeping and reporting.
h.  Providing or encouraging mediation and arbitration services.
 i.  Using licenses, permits or authorizations.
 j.  Initiating,  in a timely manner, judicial, quasi-judicial or administrative proceedings to seek
    appropriate sanctions or remedies for violations of its environmental laws and regulations.
    Sanctions and remedies shall take into consideration, among other things, the economic
    benefit derived from the violation by the violator.
 k.  Providing for search, seizure or detention.
 I.  Issuing administrative orders, including orders of a preventative, curative or emergency nature.
     The Agreement also requires each Party to ensure that enforcement proceedings are available
 sanction or remedy violations of its environmental laws and regulations.  Sanctions and remedies
r environmental violations must, as appropriate, take into consideration the nature and gravity of
e violation, any economic benefit derived from the violation by the violator, the economic condition
 the violator,  and other  relevant factors.  Possible sanctions and remedies include compliance
jreements, fines:, imprisonment, injunctions, the closure of facilities, and the cost of containing or
3aning up pollution. (32)

2    Sanctions for enforcement failure

     The obligation of each country to effectively enforce its environmental laws is backed up, for
e first time  in an international environmental agreement, with the possibility of sanctions.  A Party
jmplaining that there has been a persistent failure of effective enforcement by another Party may
quest a speciai session of the Council to seek to resolve  the dispute.   If the matter cannot be
•solved, the  Council may establish  an arbitral  panel empowered to  make findings  of  fact,
3terminations  as to  whether there has been ,a persistent pattern of failure to effectively enforce
ivironmental laws, and recommendations for remedial action.  Failure to implement a satisfactory
medy may lead to imposition of monetary sanctions, which, in the case of the U.S. and Mexico,
iay be recouped through trade  sanctions if the Party does not pay the monetary assessment.  (33)
 Canada, the monetary assessment may be recouped through the Canadian national courts. (34)
     The dispute resolution procedures laid out in the Agreement ensure that the Parties will have
nple opportunities  to resolve the  dispute  through consultation and negotiation.  Thus, while
stablishing  the potential for  monetary  and  trade sanctions  as  a response to enforcement
effectiveness, the Agreement encourages such disputes to  be resolved, and sanctions to be
/oided, through cooperation in developing  and implementing a satisfactory plan  for improving
iforcement  performance.
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354' '-••• '.-.'•'.''•-:':' -:  '•''.'• .:•••/• THIRD: iNTEpNAfiONAb CONFERENCE ON ENVIRONMENTAL-
       'The'Agreement .also .provides-'ari avenue for public complaints that a Party has failed
effectively enforce its environmental laws. Articles 14 and 15 allow nori-governmental orgahizatior
and other persons to petition the Secretariat to investigate allegations that a Party is failing to effective
enforce its environmental.law. -Upon Councilinstructions to  do so, the Secretariat will  prepare
factual record, and may conduct its own investigation in preparing such a record. The factual reco
may be made available to the public .upon approval, of the .Council. (35) The procedures governir
public complaints to the Secretariat do not automatically invoke the-formal dispute resolution proce;
which leads to monetary or trade sanctions—only a-Party to the Agreement may seek the initiatk
of arbitral proceedings.  Nonetheless,  the. Agreement provides the public a novel avenue for sheddir
light on, and pressuring the 'governments to redress, shortcomings in their enforcement efforts,  Tl
Parties retain the option of resolving  problems highlighted by the Secretariat's fact-finding activitii
through cooperation, or by initiating formal dispute resolution procedures.

4.3    Enforcement cooperation under the NACEC

       The NACEC serves a dual function.  In addition to providing a forum for dispute resolutk
and investigations of claims that a Party has failed  to effectively enforce its environmental laws, tl
Commission is also charged with promoting cooperation in environmental enforcement, Article 10(
of the  Agreement requires the NACEC Council of Ministers to encourage effective enforcement I
each Party of its environmental laws and regulations, compliance with those laws and regulator
and technical cooperation among the Parties. (36)  Under Article 12, the Secretariat must prepare i
annual report which includes data on each of the Party's enforcement activities and actions taken
ensure effective enforcement of its environmental laws. (37)
       The obligation for effective enforcement and the possibility of public scrutiny and/or monets
and trade sanctions increases the importance of enforcement cooperation as a means of ensurii
and demonstrating that each  country's environmental enforcement program  is  effective.  Thus, tl
NACEC will likely play a major role, not just in arbitrating disputes, but also in encouraging increasii
sophistication in bilateral and multilateral enforcement cooperation. Active promotion of enforceme
cooperation by the Commission will help to minimize the frequency of claims of lax enforcement
the likelihood that such claims will result' in sanctions.
 5     FUTURE EVOLUTION OF THE NORTH AMERICAN ENVIRONMENTAL
       ENFORCEMENT NETWORK

       Although environmental enforcement cooperation between the U.S. and Mexico and the U,
 and Canada has grown, the current climate provides new opportunities for strengthening the
 cooperative links.  This section examines these, opportunities within the suggested components
 an environmental enforcement network, consistent with the analytical framework set out in Sectior
 of this paper,

 5.1    Institutional framework for cooperation

 5.1,1  Trilateral framework

       A trilateral institutional framework for North.America's environmental enforcement cooperati
 network can be provided by the newly established North American Commission for Environmen
 Cooperation (NACEC). (38) The NACEC provides a forum for developing  an active agenda
 enforcement cooperation.  Indeed, a vigorous program of trilateral enforcement cooperation may
 the best way to minimize the use of the agreement's  dispute resolution  procedures to addre
 complaints of ineffective enforcement.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         355
      A strong enforcement cooperation agenda for the Commission may best be developed and
iplemented  through a standing Enforcement Work Group under NACEC's  Council, staffed by
wironmental enforcement officials of each country.  The Work Group could serve as a forum to
jordinate cooperative activities in environmental enforcement and compliance promotion. To ensure
ich Party's commitment to implementing agreed-upon priorities for enforcement cooperation, the
ouncil could adopt a Work Plan of specific projects, developed annually by the Work Group.

1.2   Bilateral structures

      The Parties to the NAAEC will need to define  the  Commission's relationship to  bilateral
soperative enforcement activities.  The Council's Enforcement Work Group could serve a role in
ncouraging  cooperative  bilateral enforcement initiatives, reporting on the  bilateral  cooperative
nforcement activities of the  Parties,  and identifying bilateral activities which could benefit from
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356                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN'
5,1.3   Domestic structure: interagency partnership

       Within the United States, expanding the network of cooperation to more actively involve otN
federal and state agencies could improve enforcement cooperation with the other countries of Nort
America. Such interagency cooperation may occur through enhanced coordination In the field, Fc
example, the concept of a multi-agency task force to investigate transboundary shipments violation;
experimented with in San Diego County,  California, may serve as a model for other task forces alon
both the U.S./Mexico and US/Canada  borders,  Interagency cooperation could also be improve
through continued development of interagency electronic communication links. For example, EPA i
working with  U.S.  Customs to examine  the possibility of an  automated interface,  providing fc
instantaneous exchange of compliance monitoring data, and is exploring with industry the electron!
transmittal of  hazardous waste manifest data on a voluntary, pilot basis. (39)
       Building of  domestic interagency enforcement links could be undertaken in a manner whic
promotes involvement and cooperation of corresponding agencies in  the other countries,  as we
For example, increased bilateral coordination between customs services, state and local government!
federal criminal investigative units, and  other agencies involved in environmental  enforcement me
supplement the increased coordination  of the national  environmental authorities for  improvin
enforcement.

5.2    Strategic priority-setting and targeting

       By  emphasizing the development of cooperative  enforcement strategies for problems  i
transboundary concern, countries can increase the sophistication of their efforts to ensure compliano
The U.S.,  Mexico  and Canada could  consider increased cooperation in implementing targets
enforcement initiatives. Such initiatives  could be based on mutually determined .strategic prioritie
but implemented with each  country conducting inspections and taking responsive enforcemei
actions in its  own territory. Although this type of cooperation  has great promise, its usage  in Nort
America has  been limited to date. The countries might actively discuss how to accomplish sue
cooperative initiatives in a manner which does not in any way compromise sovereignty.
       Bilateral initiatives may be targeted at specific, geographic-based problems of transbounda
pollution, as  a means of protecting  sensitive  populations or ecosystems.  For such geograph
initiatives, strong reliance could be placed on the regional, state or provincial, and local authorise
in identifying  priority problems of common concern.  Efforts of the U.S. and Canada to protect tr
Great Lakes could,  for example, be  further  enhanced  by expanding each country's unilater
enforcement  activities through the implementation of cooperative strategies to target enforceme
actions toward problems of regional  concern.  Similarly, a number of serious, local environment
problems in the sister cities in the U,S./Mexico border area and the Gu!f of Mexico might be addressc
through cooperative geographically-targeted enforcement initiatives.
       Bilateral, or even trilateral cooperative enforcement initiatives may also be targeted at commc
environmental problems which do not necessarily present geographic risks of transboundary pollutio
Cooperative targeting of common industry sectors, pollutants, or analogous regulatory requiremen
could, for example, serve a key role in ensuring the level playing field required for free trade amor
the sovereign nations of North America.  Enforcement of domestic laws implementing internation
obligations such as the Basel Convention, (40) or the Montreal Protocol (41) are also prime areas f>
cooperative targeted initiatives.
        In targeting priority problems for cooperative enforcement activities, the countries should mal
every effort to integrate pollution prevention as a primary goal of targeted enforcement activities. Th
goal could be implemented by each of the parties in a number of ways. For example, environmenl
inspectors may be able to play an important role in promoting pollution prevention which  exceec
regulatory  standards, by disseminating  information on prevention approaches to facilities inspecte
Pollution prevention goals  may also be pursued by seeking  to negotiate case settlements ar
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IRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         357
npliance agreements with facilities which require changes in facility processes or management
ictices which reduce pollution, even where such changes are not specifically required by regulations,

!     Cooperative compliance promotion

     A particularly ripe  area for expanded bilateral and trilateral enforcement cooperation lies in
emotion of voluntary compliance.  The U.S., Mexico and  Canada might be able to enhance the
ectiveness of their voluntary compliance  promotion efforts by  collectively reaching out to
Jtinational corporations operating in two or more of the countries, to encourage compliance with
?ir respective environmental laws.  Cooperative compliance promotion may be linked to efforts to
;o encourage industry to undertake pollution prevention  efforts which go beyond the minimum
quired to achieve regulatory compliance.
     For example, Mexico has adopted an innovative program of promoting compliance through
rticipation in environmental audits conducted by independent consultants. The U.S., Mexico and
inada might collaborate bilaterally in encouraging U.S. and  Canadian corporations operating in
jxico to participate In Mexico's audit program, and In promoting voluntary compliance and pollution
avention for the corporations' operations in the other countries.
     Such voluntary compliance  efforts might be tied  to  cooperative enforcement targeting
tiatives described above.  For example, while the inspectors of each country takes enforcement
lion within their territorial jurisdiction against cooperatively agreed-to targets, their authorities might
so join forces to promote voluntary compliance and pollution prevention in the targeted geographic
glon, industry, or group  of industries using targeted chemicals or subject to targeted regulatory
quirements,

4    Cooperative compliance monitoring

     The  EPA/SEDESOL effort  to  develop  HazTracks,  a binatlonal tracking  system for
snsboundary hazardous  waste shipments, represents an innovative  approach to building both
luntries'  compliemce monitoring capacity through  cooperation.  The countries couid continue to
3rk on full utilization of HazTracks as a tool for detecting potential transboundary shipment violations.
jch work could seek full cooperation of the customs services and local environmental authorities
 both countries in obtaining compliance data for the tracking system. In addition,  the countries
>uld explore  the development of computer  interfaces to allow  direct electronic transmission of
smplfance  data by the  regulated community and "real-time" sharing of data between the two
juntries.
     In  addition, the U.S., Canada, and Mexico may wish to explore expansion of the tracking
•stem concept to include hazardous waste shipments between the U.S. and Canada, and between
exico and Canada, to facilitate enforcement of the Basel Convention. (42) The countries might also
plore development  of  similar systems to track  transboundary movements of  ozone-depleting
lemicals to assist in implementation of the  Montreal Protocol, (43) Similar possibilities exist for
wperation in development of a computerized tracking capability to monitor compliance with import
id export requirements for toxic chemical products and pesticides,
     The countries might also expand the exchange of data on inputs and emissions from industrial
ocesses.  Data collected on chemical exports and imports,  for example, may provide useful
formation for targeting high-risk industries in the importing country. Such efforts may require reliance
i  data collected by the customs services of the countries  involved, particularly where there are no
secific environmental requirements for tracking'raw chemical product shipments. Some of this type
:  information  may  be  considered  confidential due  to  its proprietary  (trade  secret) or
iforcement-sensitive  nature, in one or more of the countries involved.  Procedures for exchanging
id protecting confidential information might be developed at the trilateral level within the NACEC,
5 well as at the bilateral and domestic levels, to ensure the free intergovernmental exchange of such
formation without compromising its confidential nature.
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358                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL
5.5    Cooperation on specific enforcement cases

       As trade between the countries increases, and as the countries cooperate to enhance thi
compliance monitoring capacities, there will likely be an increase in the number of violations deteet<
involving transboundsiry impacts, and the situations in which evidence of a violation in one coun1
is found in another. In addition, implementation of the Basel Convention will focus attention on actio
to address the environmental harm caused by illegal hazardous waste exports, through repatriate
or alternative sound management of the wastes in question.
       Recognizing this,  the countries  of North America will need to ensure the existence of cle
lines of communication for seeking cooperative assistance in individual cases,  The bilateral Muti
Legal Assistance Treaties (MLATs) that the United States has entered into with Mexico and Cana
(44) provide a framework of procedures for cooperation in investigating criminal violations. Similai
the Hague Conventions  on  Service of Process and on Taking of Evidence Abroad (45) provi'
multilateral procedural frameworks for cooperation  in initiating and investigating  cases, where c
enforcement mechanisms are employed.  These formal procedures can be supplemented, howev
with informal relationships and understandings. In the United States, most of the investigatory we
in individual  cases is carried out by regional offices of the federal government or state environmen
agencies. Accordingfy, the links for case-specific cooperation might be developed at this level, •
example, through the regional subgroups of bilateral enforcement work groups.

5.6    Sharing experiences  to build enforcement capacity

5.6.1   Consultation on laws and policies

       The NACEC may serve as a trilateral forum for exchanges between Mexico, Canada and t
United States regarding their laws, regulations, significant enforcement cases, court or administrat
decisions, and significant regulatory actions.  Similarly, the  NACEC could promote consultatic
among the Parties regarding their respective enforcement policies, practices, and procedures,
addition to utilizing the NACEC as a trilateral forum for such exchanges, the  parties may benefit frc
increased routine bilateral interaction and consultations regarding their environmental laws a
enforcement policies.

5.6.2  Training and technical assistance

       The  parties might seek opportunities to build joint training and capacity-building exercis
into cooperative enforcement initiatives. For example, the countries could decide to target a partict.
pollutant of concern for enforcement responses in their respective jurisdictions.   In carrying <
inspections to implement these targeting decisions, one country might invite inspectors from the oti
along, to serve as observers for the purpose of training. Similarly, focusing on a pollutant or Indus
of concern would provide  the countries an  opportunity to mutually develop their compliar
monitoring capabilities, through pooling of pollution sampling and analytical capabilities, or by us
the targeted initiative as an opportunity to enhance sharing of data on chemical inputs and releaj
for the industry or pollutant of concern.
        Other training opportunities may be  pursued as well.  The  U.S. and Mexico may work
enhance their multimisdia inspector training program, and to involve Canada in the program.  Go
for this program could include training course improvements  to  integrate industry-spec
enforcement and pollution prevention information and providing "train-the-trainer" courses to all
each country to fully benefit from in-house training capacities.  In  addition to inspector training,
countries may wish to consider cooperating in training of enforcement policy personnel, utilizing
Principles of Environmental Enforcement course which the U.S. has taught  in several countries, s
upon which the case study exercises being conducted during this conference are based.
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IRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         359


     A trilateral training and technical assistance program might involve each country assisting the
lers  in areas where it has developed special  expertise.  For example,  while the US. might
ncentrate on inspector and policy-maker training, Mexico could provide training to the U.S. and
inada in  conducting environmental  audits,  while Canada  might  provide  training in promoting
luntary compliance.  Other possible areas for cooperative exercises might  include training in the
ivelopment and  implementation of  penalty  policies to recoup  the  economic  benefit  of
m-compliance;  technical assistance  in enforcement case-tracking; technical assistance in
hancement of laboratory capacity for  analyzing samples taken by inspectors; training in good
Doratory practice techniques; and technical assistance and training for integrating pollution
avention goals in enforcement and compliance promotion activities.

7    Enforcement results information-sharing

     Although the U.S. and Mexico initiated bilateral exchanges of enforcement statistics to respond
public interest during the NAFTA debate, such exchange is now memorialized on a trilateral level.
ie NACEC Secretariat is required to develop an annual report with information on the effectiveness
 each country's enforcement programs.  The Parties thus will be required  to  report on their
iforcement accomplishments to the Secretariat, including information on inspections, fines and other
notions, and the results of enforcement actions in achieving compliance with environmental laws
id  clean-up of  pollution.  In addition to this trilateral exchange of country-wide  enforcement
brmation, bilateral cooperation may continue for exchanging information on regional enforcement
itivities, particulsir in the U.S./Mexico border area.
     The NACEC Council's cooperative enforcement activities could include developing ideas on
iw to measure results of enforcement programs.  A key  challenge will be addressing the
smparabiiity of enforcement statistics collected by the countries, each of which adopts different
ethods of measuring enforcement activities, and utilizes different enforcement tools to achieve
suits.
     For example, Mexico publicizes detailed data on the  number of inspections it undertakes,
id  resulting facility shut-downs.  Canada has compiled statistics on numbers  of  inspections,
yestigations, warnings, prosecutions, and convictions.  In the U.S., national statistics are readily
'ailable on enforcement cases initiated  and monetary penalties "obtained.  Compilation of national
spection statistics, however, is currently a more difficult task, due to decentralization of inspection
ithority among separate programs in the states and EPA Regional offices.  In  addition, there are
gnificant variations between countries in terms of the frequency with which different enforcement
sponses (i.e., shutdowns, criminal prosecutions, and civil prosecutions) are employed.  Due to such
fferences, meaningful comparisons of enforcement activities among the three countries may require
utual determination of the key data elements, and improvements over time in the measuring systems
ich uses.
     Moreover,  reporting only on quantitative enforcement activities, such as inspections realized,
ises  brought, or penalties collected, does not-provide a complete measure of the actual results of
iforcement in  improving  the environment.  A cooperative dialogue on measures  of enforcement
iccess may  lead to development  of  new measures that will  account  for the  behavioral and
wironmental benefits that result from enforcement action.

8    Communications strategy

     International coordination in public communication of enforcement  activity provides great
c-mise in deterring non-compliance.  Coordinated announcements of cooperative activities also
wide the countries an opportunity to  demonstrate  that, while the countries are  cooperating on
iforcement, they are doing so  within the principles of  sovereignty and comity.   This technique,
jwever, has only been used to date in North America to a very limited extent.  Successful use of
is technique requires the countries involved to agree to the means, timing, and content of a public
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360                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEME
announcement.  This North American enforcement  network might further explore the use
cooperative public communications to demonstrate the consequences of enforcement eooperatk
The network could provide a means for mutually agreeing on communication plans in advance
the cooperative activity to be announced.
6      CONCLUSION: VISION FOR A NORTH AMERICAN ENFORCEMENT NETWORK

       With respect for national sovereignty as the defining context, the nations of North Amer
are in the process of building a cooperative enforcement network which maximizes the capacity a
enhances the effectiveness of each country's domestic enforcement and compliance program.
variety of tools are available, ranging from cooperation in individual cases; to cooperation in train
and developing technological tools that enhance compliance monitoring capabilities; to cooperat
in promoting  voluntetry compliance; to conscious strategic collaboration in setting priorities
enforcement activity, selecting targets for enforcement action, and communicating enforcement resi
to maximize their deterrent effect.  The evolving network will work best by building partnerships
cooperation, both between the countries of North America, and among the multiplicity of national £
local agencies contributing to environmental enforcement.
       The resulting cooperative efforts may be mobilized to maximize the environmental protect
impact of  enforcement, by leveraging pollution prevention, addressing sensitive ecosystems, 2
promoting  environmental  justice.  These experiences in building a network of environmer
enforcement cooperation in North America may suggest similar opportunities for developing sim
networks elsewhere on the globe, and for extending North America's enforcement network to ot
neighbors and trading partners.
       ENDNOTES

  1. North American Agreement on Environmental Cooperation, Between the  Government of
    United States of America, the Government of Canada and the Government of the United Mem
    States (entered into force January 1, 1994).
  2, See Schwarz, D.8., Moving Environmental Data Electronically: The Opportunities and Challem,
    of Electronic Data Interchange (EDI), Presented at 86th Annual Meeting and Exhibition, Air i
    Waste Management Association, Denver, Colorado, June 13-18,1993 (on file with authors).
  3. See Los Angeles County, California, District Attorney News Release (June 15,1993). (Announ
    settlement of criminal environmental prosecution for violations of California hazardous waste la
    Settlement  included payment by defendant of $2 million  for cleanup of  wastes which m
    unlawfully transported to Mexico.)

  4. Treaty Between the United States of America and the United Mexican States on the Utiiizatioi
    Waters of the Colorado and the Tijuana Rivers and of the Rio Grande (1944).

  5. Agreement Between the United States of America and the United Mexican States on Coopera
    for the Protection and Improvement of the Environment in the Border Area (Done at La F
    Mexico, August 14,1983).
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mo INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         361


5. Mexico established its "maquiladora" program in the 1960's to encourage foreign investment.
  The maquiladora  industry serves as an export platform for goods produced  in Mexico from
  imported raw materials. A maquiladora facility may import raw materials to Mexico without paying
  import duties, on the condition that resulting products and wastes are then shipped back to the
  country of origin of the raw materials.  For products made  from U.S.-origin raw materials, the
  U.S. requires the importer to pay the duty only on the value added to the raw materials during
  their use in  the maquiladora operation.  A large number of maquiladora plants in Mexico are
  wholly or partially owned by U.S. parent corporations.

'. Annex III to trie Agreement Between the United States of America and the United Mexican States
  on Cooperation for the Protection and Improvement of the Environment in the Border  Area:
  Agreement of Cooperation Between the United States of America and the United Mexican States
  Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances, arts.
  II and XII (Signed in Washington, D.C., November 12, 1986).
5. See Bromm, S.E., The  United  States'  Enforcement Approach to  the Export  and Import of
  Hazardous  Waste, Proceedings  of the  Third  International Conference  on  Environmental
  Enforcement, Oaxaca, Mexico, April 25-28, 1994.
3. Integrated Environmental Plan for the Mexican-U.S. Border Area (First Stage, 1992-1994), U.S.
  Environmental Protection Agency and Mexico's Secretaria  de Desarrollo Urbano y Ecologia,
  V3-V7 (1992).

D. Joint Progress Report of the U.S.-Mexico Integrated Border Environmental Plan, Annual Meeting of
  the National Coordinators, La Paz Agreement, p.3. (Ensenada, Baja California, Mexico, October 1993).
I. Id, at 2.
2. Id, at 3.
3. Id

*. See Bromm, S.E., The  United  States'  Enforcement Approach to  the Export  and Import of
  Hazardous Waste, supra, note 8.
5. Joint Progress Report of the U.S.-Mexico Integrated Border Environmental Plan, supra, note 10,
  at 2.
5. Boundary Water Treaty Between the United States of America and Canada (1909). See Peterson,
  L,  USEPA Regulation of Cross  Boundary Pollution:   The Great Lakes Initiative and Binational
  Pollution Prevention Initiatives, Environmental Control Law, vol. 23, no.1, p.1 (September,  1992)
  (hereinafter  "Peterson, L., Environmental Control Law").
7. Great Lakes Water Quality Agreement Between the United States of America and Canada (signed
  April 15, 1972).  See Peterson, L., The Great Lakes  Enforcement Strategy:  Using Enforcement
  Resources to Maximize Risk Reduction and Environmental Restoration in the Great Lakes Basin,
  Proceedings of  the  Third  International Conference on Environmental  Enforcement, Oaxaca,
  Mexico, Apri! 25-28, 1994 (hereinafter, "Peterson, L., The Great Lakes Enforcement Strategy").
3. See Peterson, L., The Great Lakes Enforcement Strategy, supra, note 17.
3. Id
3. Enforcement initiatives have focused on remediation of waste sites responsible for polluting the
  Niagara River, issuing letters to thousands of facilities to promote compliance with requirements
  to report toxics releases; hundreds  of inspections to check the adequacy  of required oil spill
  containment plans; and inspection and enforcement actions to ensure compliance with  EPA's
  Undergrounci Storage Tank (UST) regulations.  Peterson, L.,  Environmental Control Law, supra,
  note 16.
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362                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEr


21.  Individual facilities within selected geographic areas are targeted for inspection if they present
    high risk of negative impacts on the Great Lakes.  High-risk facilities include those with a histc
    of non-compliance, or those which report the release of large quantities of critical pollutants
    the Toxics Release Inventory, as required by the Emergency Planning and Community Right
    Know Act (EPCRA).  Peterson, L., The Great Lakes Enforcement Strategy, supra, note 17.

22.  In a recent settlement of a multimedia enforcement case brought as part of a targeted geograpl-
    initiative, the defendant agreed to pay civil penalties of $3.5 million for its violations,  and
    conduct  corrective action to remediate environmental releases for which it was direc
    responsible.  In addition, the facility agreed to $26 million worth of supplemental environmen
    projects.  It will spend $7 million on facility audits and plant improvements to prevent pollutic
    and $19 million to remediate contaminated sediments in a region identified as an Area of Conce
    under the GLWQA  U.S. v. Inland Steel Corp.. No. H-90-0328 (N.D.Ind.). See  Peterson,  L., T
    Great Lakes  Enforcement Strategy, supra, note 17.

23. Agreement Between the  Government of the United States of America  and the Government
    Canada Concerning the Transboundary Movement of Hazardous Waste, arts. 5 and 7 (signed
    Ottawa, Canada, October 28,1986).

24. See  Bromm, S.E.,  The  United States' Enforcement Approach to the Export  and Import
    Hazardous Waste, supra, note 8.

25. Id
26. 42 U.S.C.A. §§ 9601 to 9675.
27. 15 U.S.C.A. §§ 2601 to 2671.
28. Bromm, S., The United States' Enforcement Approach to the  Export and Import of Hazardc
    Waste, supra, note 8.
29. North American Agreement on Environmental Cooperation, supra, note  1, arts. 8, 9,11, and '

30. Id, art. 5(1).

31. Id
32. Id, arts. 5(2) ancl 5(3).

33. Id, arts. 22-36.
34. Id, Annex 36A.

35. Id, Arts. 14-15.
36. Id, art. 10(4).

37. Id art. 12.

38. The emergence of this new trilateral Commission is described in Section 4 of this paper.

39. See  Bromm, S.E., The  United  States'  Enforcement Approach  to the Export and  Import
    Hazardous Waste,  supra, note 8.

40. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and tt
    Disposal,  U.N.E.P. Doc. IG.80/3,  March 22, 1989, reprinted in I.L.M. 649 (1989).

41. Montreal Protocol on Substances that Deplete the Ozone Layer, 26 I.L.M. 1541 (1987); 30 I.L
    537  (1991).
42. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and tl
    Disposal, supra, note 40.
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IIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        363


.. Montreal Protocol on Substances that Deplete the Ozone Layer, supra note 41.

•. Treaty on Cooperation Between the United States of America and the United Mexican States for
  Mutual Legal Assistance (signed in Mexico City, Mexico, December 9,1987); Treaty Between the
  Government of the United States of America and the Government of Canada on Mutual Legal
  Assistance in Criminal Matters (signed in Quebec City, Canada, March 18,1985).

!. Convention on the Service of Process Abroad of Judicial and Extrajudicial Documents in Civil or
  Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, TI.A.S. No. 6638;
  Convention on the Taking of Evidence Abroad  in Civil or Commercial Matters, done March 18,
  1970, 23 U.S.T. 2555, T.I.A.S. No. 7444.
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       365


THE ENFORCEMENT PROJECT ON TRANSBOUNDARY MOVEMENTS OF
HAZARDOUS WASTE WITHIN EUROPE

3E KROM, RUUD' and KESSELAAR, HUUB2

 Enforcement Division, Inspection Waste Matters, Inspectorate for the Environment
 Head Enforcement Division, Inspectorate for the Environment

Villem Witsenplein 6, IPC 681, P.O. Box 30945,2500 GX The Hague, The Netherlands
      SUMMARY

      In this paper general impressions  are given of the findings of an enforcement project
xxicerning the transboundary movements of hazardous waste within Europe, Background information
3n E.C - legislation as well as the set-up and results of the project are provided. The project has
seen carried out by five European countries in. order to optimize the enforcement of environmental
egislation.
I      INTRODUCTION

1.1    European legislation

      As a result of problems caused by dioxin-containing waste after an explosion in a factory
ocated in Seveso, Italy, 1984, the European Community (E.C.) drew up Directives in order to control
tie processing aid transboundary shipments of hazardous waste. The hazardous waste of Seveso
disappeared and was accidentally found in a shed in the North of France.
      These Directives imply, among other things, that the concerned authorities should approve
ransboundary shipment of hazardous waste before actual transport has taken place. These transports
should be notified (notification of disposal and notification of receipt) and should be accompanied
Dy special documents, containing specific data for that particular transport.
      Each  member state  is bound to accommodate national legislation implementing these
Directives.

1.2    BASEL: Treaty and OECD recommendations

      In Basel, early in 1989, agreements were reached about  the transboundary shipments of
hazardous  waste, A treaty, that was  to be called the 'Basel-Convention', was signed by several
countries, who all agreed to incorporate the provisions of the Basel Convention in the already existing
national legislation.
      Apart from the European Directives and the Basel Convention, the OECD, the Organisation
for Economic Cooperation and Development, has also addressed the question of hazardous waste
shipments. The Waste Management Policy Group, created in 1974 by the  OECD Environment
Commission  to contribute to sustainable development,  is  primarily concerned with conceiving,
developing and promulgating international  policy instruments  to promote appropriate waste
management.
      Since 1980 the Group has concentrated on hazardous waste with special emphasis on the
control of its transboundary movement. Their work has led  to the OECD Council's adopting eight
recommendations.
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366                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMEN-
       These efforts Isiid the foundation for the Basel Convention on Transboundary Movements c
Hazardous Wastes and Their Disposal, which came into force on 5 May 1992 for those countrie
which had ratified this Convention,

1.3    Implementation of EC.: Legislation in The Netherlands

       During the years 1988 to 1989 several European countries were confronted with ships load&
with hazardous waste coming from different European as well as African countries, where this wast
had illegally been dumped previously because no country would accept this waste for treatmerr
These ships roamed the seas attempting to get rid of their waste. Both The Netherlands and othe
European countries were confronted with efforts to have ships like these destroyed.
       Dutch legislation In 1988 did not regulate the import of hazardous wastes adequately. I
October 1988 the E.G. - Directive on transboundary shipments of hazardous wast© was implemente
in the Dutch Chemical Waste Act and  the "Regulation on import, export and transit of hazardou
waste" came into force.
       Dutch politicians emphasized from the start that this Regulation should not be a 'paper tiger
Implementation should be effective both with regard to the testing of the notification for the intend©
transports and the check on compliance with the Regulation.
       In the Netherlands, an executive organization consisting of three departments was set up:
       •  A 'Notification  Bureau'  responsible  for  registration and  administration  of all
          notifications and for the procedures required by the Regulation in order to Judge
          applications.
       *  A Policy Department on Waste  Products responsible for the decisions whether to
          allow a trans!rentier shipment of hazardous waste.
       •  A Department called 'Inspection Waste Matters', responsible for the enforcement of
          the Regulation (1).

1.4    Enforcement experiences

       By the end of 1989 the Inspection Waste Matters had made a start with the enforcement c
the Regulation, At this moment there are about 25 staff members, all experts who work together wit
Customs, the Police and the Public Prosecutor. Meanwhile, their cooperation has gradually becom
more systematic.
       In five years the Department has gained a great deal of practical enforcement experience.,
summary of enforcement activities over the years 1992 -1993 is given in Table 1. (2)

          Table 1.  Enforcement Activities, 1992 to 1993
          Reports    Samples     Transports Blocked     Protocols    Warning Letters

          2785	220	352	80	120	


       Explanation of the figures:
       During the years 1992 and 1993, 1800 reports on 1300 different cases were received fror
our network. This network includes the following organizations: the police, customs, the transpo
inspectorate, provinces, municipalities etc. Most of these reports were received by telephone or fa;
Customs was most active in this respect, although the percentage of reports from other members c
the network is increasing. The total number of reports, received from the staff of ttie Inspection Wast
Matters amounts to 985.619 reports provided information on companies, 74 of them concern foreig
companies, The  remainder of the reports concern visits by the enforcement network. During compan
visits and transport inspections, 220 samples of hazardous waste were taken. As a result of thes
enforcement activities 352 transports were blocked for a certain period of time so as to carry o\
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HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         367
jrther investigation. Following violations of the legislation, 80 protocols were taken down and more
lan 120 'warning-letters' were sent to the companies involved.
      These incidents have revealed  that the enforcement of regulations and the  checking of
•ansboundary shipments of hazardous waste is not  implemented equally stringently  by all EC
ountries. There eire differences in approach among the countries and information exchange could
ie improved. Better cooperation is essential, given the environmental effects that may result  from
legal transboundary shipments, especially in view of the disappearance of the internal European
>orders and the risk of organised crime getting involved in waste management in general.

.5    Figures of transboundary movements of waste

      In Table 2 a survey of the amounts of hazardous waste exchanged among European countries
3 presented from the point of view of The Netherlands(3).

      "feble 2.   A Survey of Hazardous Waste Exchanged Between European Countries (in tons)
      Period                import                Export                Transit

      1991                 100.000                189.000               30.700
      1992     	250.000	172.000	15.000

      In 1992, 228 decisions on the import of hazardous waste in The Netherlands were made by
he Waste  Policy Department. This number is twice as high as in 1991.  In 1991  the amount of
lazardous  waste imported into The Netherlands was approximately 100,000 tons.  In 1992, for
jxample, the total amount was 250,000 tons. One of the contributing factors for the difference between
1991 and 1992 is the variation in import of polluted soil for treatment. Most of the imported waste
;ame from Germany and Belgium.
      In 1992, 421 decisions on the export of hazardous waste from The Netherlands were made.
me total amount of exported hazardous waste has decreased. In 1991 the amount was 189,000 tons,
is compared to 172,000 tons in 1992.        :
      Some reasons for the decrease in exported waste are:        	
      • Waste reduction by some companies.
      • A new controlled landfill.
      • The technical means for recycling more wastes.
      The transit of hazardous waste via The Netherlands has also decreased. In 199215,000 tons
were transported via The Netherlands. The reason for the decrease is a waste stream from Germany
:o Norway which was no longer notified in The Netherlands. Most of the waste which was transported
/ia The Netherlands came from Germany, Austria and Italy. Half the amount was bound for the United
Kingdom, Nevertheless, a large amount of hazardous waste has been moved across the borders.
       In order to  optimize enforcement of the transboundary movements of hazardous waste, the
Dutch Inspectorate for the  Environment has created a 'network' of colleagues in other European
countries, involved with the enforcement of the.regulations for transboundary movements of waste.
This network is of  great importance, especially in case an illegal shipment has to be sent back to
:he  country of origin. It is obvious that  such an enforcement  activity needs adequate coordination.
Therefore,  a pilot project for cooperative enforcement was developed  at  the initiative  of The
Netherlands.
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368                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      MOTIVE FOR THE ENFORCEMENT PROJECT

2.1     Initiative

       In  1992 the Dutch Inspectorate  for the Environment took the initiative to organize ar
international enforcement project in order to monitor the transboundary movements  of a particular
hazardous waste stream between a number of European countries. The idea was to set up a pilot
project in which during a period of six months a specific wastestream would be followed from the
cradle to the grave. The underlying idea was that a project of this kind - working from the bottom up
in an executive way - could provide a basis for  closer European cooperation and could ultimately
lead to a common enforcement policy on the transboundary shipments of hazardous waste withir
the European Union (E.U.).
       Especially the  cooperation among the  enforcement organizations  in Europe is  of  grea!
importance in the near future.  On 6 May 1994 a new European legislation will come into  force
concerning the monitoring of compliance on the transboundary movements of waste  in Europe, The
European Regulation nr. 259/93 (4). The consequence of the new Regulation is that all kinds of wastes,
not only hazardous wastes, will come under the responsibility of the Regulation, that the export ol
wastes will be minimized  and in comparison with  existing legislation, more procedures will be
developed for the transboundary movements of waste. The pilot project can be seen as a preparatior
for the enforcement of the coming Regulation.

2,2    E.G. enforcement network

       In order to have an optimal cooperation between the European countries in the enforcemenl
of environmental legislation, a network was set up of enforcement organizations in Europe.
       The initiative for the pilot project  was put forward at the first  EC -  'enforcement network
meeting in Chester in the United Kingdom in November 1992. The proposal was received positively
and was taken on by an ad hoc working group on  transboundary shipments of waste.  During this
conference in Chester it turned out that  besides the Netherlands, the United Kingdom, Belgium,
Luxembourg and Germany showed interest. This  corresponded with the idea to start from the bottorr
up, in other words, not immediately involving all EC countries in what would be an experimenta
project in order to reach general conclusions and recommendations in mutual cooperation.
 3     PROJECT OUTLINE

 3.1    Start of the project

       In January 1993 the project started with the exchange of ideas between the partner countries,
 "ttlks have been held with a number of people engaged in enforcement policy about the details ot
 the pilot project. In most of the  European countries the  competence for the enforcement of the
 regulations for the transboundary movements of waste rests with the Regional authorities. Therefore,
 in Germany, Belgium and the United Kingdom the project was confined to a few major regions.

 3.2    Definition of the project

       In April 1993 a workshop was held in The Netherlands for the purpose of defining the projed
 set-up and reaching agreements about the execution of the project. The ensuing result was that there
 were three distinct phases in the project:
       »  Desk study phase.
       » Company/transport inspection phase.
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'HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         369
      • Final report phase.

      The participants selected paint waste and solvents as the hazardous wastes to be monitored
3r a number of reasons:
      • The frequency of transboundary movements of these wastes.
      • The large amount of these wastes that has been  produced during the last few
        years.
      • Problems encountered with these wastes.

      To provide a better insight into the project, a description is given of the different project phases.

1.3    Desk study

      The  project started off with a desk study phase. This phase aimed at obtaining the most
lomplete possible insight into the waste stream on the basis of the documentation and data files
ivailable. The essence of this phase was to compare the available notification data in the separate
jartner countries, to state the differences and to see which companies and waste streams did not
:orrespond.
      After the desk-study phase there was a joint meeting  in Manchester in The United Kingdom
it which the results of the desk study were discussed. Further agreements were made on the next
jroject phase (th« company visit and transport inspection).  During this meeting general criteria were
ormulated for selecting the companies which had to be visited.

3.4    Company visit and transport inspection

      In this phase  companies were visited including  those  operating as producers, disposers,
reaters and brokers of transboundary shipments of hazardous waste. The essence of these company
/isits was to gather the necessary information for acquiring an overall picture of the selected waste
stream. The company visit also included a check to see whether the data given in the documents
3orresponded with the actual transported quantities and qualities of the waste. In addition to the
3ompany visits, transport inspections took place.-The aim of transport inspections is similar to that
Df company visits; acquiring a total picture of the selected waste stream by checking the documents.
Sampling and physical inspections of the waste were also  included.
t      PROJECT CONCLUSIONS AND RECOMMENDATIONS

4.1     Results aid discussion

       During  the desk study phase all participants gained a lot of information concerning the
ransboundary movements of the selected waste streams between the participating countries. On the
Dasis of this information a number of specific waste streams within the group 'paint waste and
solvents' were selected for monitoring and a number of companies were to be visited.
       Action plans were developed for the enforcement activities, that is to say, company visit,
cransport inspection and sampling and safety procedures in relation to hazardous waste. These action
olans will  be compiled in a manual which can be used for regular enforcement activities.
       After the desk study, company visits and transport inspections took place. An overview of the
results  of  the company visits is given in Table 3. The results of the transport inspections are given in
Table 4.
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370                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


4.2    Results of company visits

Table 3.  Results of company visits

Belgium
Germany
Luxembourg
The Netherlands
The United Kingdom
Totals
Visited Companies
6
8
5
7
3
29
Good Impression
5
8
2
6
3
24
Irregularities
2
4
3
3
4
16
Follow-up
2
4
3
1
1
11
       Explanation of the figures:
       The companies which have been visited include producers as well as disposers of the waste.
If a company has been acknowledged to be operating satisfactorily, this means that, in general, the
company is operating in compliance with the legislation, although some irregularities may be found.
Irregularities in the framework of this overview signify defects or violations of the legislation. Meanwhile
a number of follow-ups have been started. These follow-ups mostly include a number of irregularities.

       In particular, three enforcement activities resulting from the pilot project may be mentioned:
       * The export of one shipment of hazardous waste was refused because a permit for
         the transboundary movement of the waste had not been granted.
       » One shipment was sent back to the country of origin because the description of the
         waste of the  accompanying document was not in accordance with the physical
         composition of the waste.
       » Major soil pollution has been found during a company visit within  the framework of
         the pilot project.

4.3    Results of transport inspections

       Transport inspections have been held in Germany, Luxembourg and The Netherlands. It was
not possible to have transport inspections in all participating countries due to capacity problems in
the enforcement organizations.

Table 4.  Results of transport inspections

Germany
The Netherlands
Totals
Checked
Transports
26
140
166
Waste
Transports
9
9
18
Irregularities
2
2
4
Follow-up
2
2
4
       Some remarkable results of these transport inspections are:
       •  The export of one transport of old batteries was refused because of the absence of
          proper documents.
       •  One transport of hospital waste was sent  back to the country of its producer
          because there was no permit for the transboundary movement.
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'HIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         371
-.4    General results

      Apart from the enforcement effects, results were also achieved in the communication field.
Jefore the pilot project was started there had actually been very few contacts among the participants.
)uring the pilot project the partners have held weekly contact. While these contacts expanded steadily,
ney were not always limited to the  pilot project, but also concerned regular enforcement activities.
'he four workshops held during the project, in particular, contributed to intensifying the contacts.

1.5    Final report

      With the rounding off of both phases the operational project activities came to an end. A draft
inal report was made and discussed with the partners. In this report recommendations have been
nade and  the report will be presented during the next meeting of the EC - enforcement network in
lune 1994.
>     CONCLUSIONS

      In order to optimize the enforcement activities in Europe, The Netherlands took the initiative
n organizing a pilot project on the transboundary movements of hazardous waste. One of the main
easons for starting the project is a change in European legislation in May 1994. This new Regulation
3oncerns not only hazardous waste, but all kinds  of waste. The provisions  demand an adequate
jnforcement of the Regulation in Europe. The pilot project was a first exercise to come to a common
jnforcement strategy and to exchange experiences between the participating countries.
      An important conclusion has been that'this kind of project should  be continued in order to
mprove enforcement within the European Union. This conclusion has been adopted by the European
letwork for enforcement of Environmental legislation and put down as a recommendation in the final
•eport of the pilot project. The final result of the project has been that communication has improved
Between the participating countries, which will  ultimately lead  to  a better  enforcement strategy.
vloreover, a  manual for enforcement activities has been developed and will be available for other
snforcement organisations in- or outside Europe. -•-•             	
       REFERENCES

1.  International Enforcement Workshop May 8-10, 1990, Utrecht, The Netherlands.
2.  Data system, Inspection Waste Matters.
3.  Annual report Notification Bureau Chemical/Hazardous waste in The Netherlands 1992, The Hague.
4.  E.G. Regulation concerning monitoring compliance on the transboundaty movement of waste in,
   into and out of the European Union.
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372                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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"HKD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       373
                    SPECIAL TOPIC WORKSHOP
  Export/Import of Illegal Shipments of Hazardous Waste,
         Toxic Chemicals, or Contaminated  Products
 1. Enforcement in the Netherlands of the European Regulation on Transfrontier
   Shipment of Hazardous Waste, W. Klein 	,	375
 2. The United States' Enforcement Approach to the Export and Import of
   Hazardous Waste, S.E. Bromm 	,	383
See related papers torn other International Workshop and Conference Proceedings.
 1.  The import/Export of Hazardous Waste and Toxic Substances:  The U.S. Enforcement
    Experience, Paul Thomson, Volume !, Utrecht, The Netherlands
 2.  Netherlands Case Study in Enforcement of Hazardous Waste Import/Export, Jo Gerardu and
    Rob Bouma, Volume I, Utrecht, The Netherlands
 3.  Waste Movement: European Community and Outside, Corel de Villeneuve
 4.  Pesticide Export and Import Enforcement Programs in the United States, Connie Musgrove and
    Angela Wo/mann, Volume I, Utrecht, -The- Netherlands  —  -	• -	 — ' ~"~
 5.  The Basel Convention and Its Enforcement, Iwona Rummel-Bulska, Volume I, Utrecht, The
    Netherlands
 6.  The Example of the Chemicals Weapons Convention, B. ter Haar, Volume I, Utrecht, The
    Netherlands
 7.  Third World Perspective on Hazardous Waste, Bakaty Kante, Volume II, Utrecht, The Netherlands
 8.  Polish Prohibition of Waste Import, W. Radecki, Volume I, Budapest, Hungary
 9.  Some Information on Enforcement Concerning Solid and Hazardous Wastes Disposal in
    Czechoslovakia, K. Velek, Volume I, Budapest, Hungary
10.  Results of Three Years of Enforcement of Regulations on Transboundary Shipments of
    Hazardous Waste in the Netherlands, M. Fokke-Baggen (additional paper), Volume I,
    Budapest,  Hungary
11.  Combatting Environmental Crime in an International Context, Y van der Meer, Volume II,
    Budapest,  Hungary
12.  The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and
    Their Disposal, /. Rummel-Bulska, Volume II, Budapest, Hungary
13.  The Role of Interpol in Environmental Enforcement, S. Klem,  Volume II, Budapest, Hungary
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374                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       375


ENFORCEMENT IN THE NETHERLANDS OF THE EUROPEAN REGULATION ON
FRANSFRONTIER  SHIPMENT OF HAZARDOUS WASTE

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376                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
3      EUROPEAN ASPECTS

       In principle the regulation applies to all countries of the European Union (EU). One woulc
have expected the transport within the European Union to be better regulated than transport to Thirc
World countries. This is only partly true. The reason for this can be found in the current differences
in concepts and definitions of the various regulations in the EC countries. Moreover, competence ol
monitoring agencies and police differs from country to country, also within the European Union.
       Only in 1994 when the regulation will uniformly come into force in all  Member States it is tc
be ejected that enforcement within the territory of the Union will be leveled and that it can operate
effectively and efficiently. On the other hand, control at the European internal frontiers will by that time
be so limited that in practice  enforcement will not  primarily take place at the border. With regard tc
actual  border control, enforcement at the external frontiers with Third World  countries will be as
effective. Up  till now, however, experience has shown that by far most transports take place withir
the European Union.
4      SOME FIGURES

       In the period between 1988 and 1990 the amount of hazardous waste imported into the
Netherlands increased from 40 to 200 kiloton. To a large extent this waste came from Germany anc
Belgium. In 1991 the amount temporarily decreased to 107 kiloton to rise again to approx, 250 kilotor
in 1992 and 1993. Fluctuations in these amounts are mainly caused by the stream of polluted soi
which  is cleaned in  Dutch cleaning installations. In addition, it concerned, particularly,  specialis
physicochemical processing and incineration with chlorine recovery.
       The amount of hazardous waste exported from the Netherlands, mainly to Belgium, German}
and France, is practically constant at approx. 150 kiloton a year. In 1988 most of it was destined fo
special dumping sites of hazardous waste  (of which there are none in the Netherlands because o
its soil conditions); in 1992 and 1993 most of it went to incineration plants (of which there were toe
few in the Netherlands at that time). At the  same time a great deal of exported waste was intendec
for use as raw material.
       As to transit,  about 30 kiloton a year had been transported through our country since 1988
mainly waste from Germany on its way to being processed in the  United  Kingdom. After a sharp
decrease to approx. 15 kiloton in 1992, mainly because a lot of German waste was transported direc
to Norway, the amount of waste in transit rose to its original level in  1993.
S     ENFORCEMENT

       Notification, registration and approval  of transports,  including the accompanying mass o
paperwork, play, as already mentioned, a vital  role in the regulation: firstly, to prove as to whether •<
certain transport is legal or illegal; secondly, as a means to keep in sight streams of waste on thei
ways to being processed; the latter for the purpose of enforcement as well as for further policy making
with regard to the processing of these waste products. Consequently, this means that enforcemen
can almost only be implemented by specialized officers well acquainted with all formalities and als<
able to attach  policy conclusions to established facts.
       Therefore, a specialized bureau has been set up in the Netherlands from the beginning fo
the purpose of enforcing the Regulation. It concerns the section 'Inspection Waste Matters' of th<
Inspectorate for the Ensnronment of the Ministry of Housing,  Spatial Planning and the Environment
Still, this bureau cannot carry out its tasks without the assistance of a good network of contacts witi
other enforcing agencies such as customs, police, harbour  authorities and colleagues across th<
border, (see also the report by DE KROM and KESSELAAR at this conference)
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         377
       Another key element is the concept of 'land frontier'. After all, it Is a question of import or
 3xport only if a frontier is being crossed. The lifting of general control of persons and goods at the
 internal frontiers of the European  Union (a process started as from 1993) impedes the important
.warning function of customs with respect to (possibly illegal) waste transports. The conclusion is that
 it is impossible to capture all individual transports in a watertight control system at the border.
       In order to carry out the most effective control on waste streams on should aim at companies
 serving as a 'junction' for waste transport, such as large disposers, brokers and transporters.
 6     ENFORCEMENT STRATEGY

       In the past few years a consistent strategy has been developed for enforcing actions
 dependent on the nature of the infringement. In the case of minor offences warning is given out and,
 if necessary, this is followed by an inspection visit to the sender who is also informed about the
 regulation. As to major violations, such as transports without any notification, but also in the case of
 repeated smaller violations criminal action is taken and the case is handed over to public prosecution.
 The aim  is always to prevent shipments of hazardous waste from ending up illegally in the
 environment. In those cases it may be necessary to take special judicial or administrative measures
 to prevent a violator from shirking his  responsibility for the correct processing of his illegal transport.
       Even with a consistent strategy of approach it remains necessary to search creatively for the
 most effective ways of providing information, using legal tools, hitting the violator in his commercial
 interests,  publicity, etc.
       Enforcement of the EU - regulation rests with the Member States. Officers have competence
 beyond their own land  frontiers in accordance with a decision dd. 24  January  1994.  How this
 competence can be introduced is still a matter of discussion. The best way to exercise influence on
 foreign transporters from the Netherlands proved to be via their Dutch trading partners.  Consequently,
 enforcement and criminal action are always aimed at the Dutch companies involved.
 7      PRACTICAL EXPERIENCE, BOTTLENECKS

        Bona fide senders and transporters are sufficiently acquainted with the regulation by now; in
 general compliance is satisfactory also because specific enforcement was implemented from the very
 beginning. It has proved to be useful in that respect to check not merely the  transports themselves
 but also to visit the large senders and processors in particular and inform them about the requirements
 of the regulation. Those concerned consider the whole procedure of notification and approval quite
 an official 'mass cf  paperwork'.
        Apart from  warnings from  the network,  company visits to senders and processors  of
 hazardous waste are an important source of information when  investigating  violations. In  addition,
 road transports ara  frequently and according to plan stopped in cooperation with the network or by
 the network independently.
        A major bottleneck with regard to compliance and,  specifically, acceptance of the regulation
 is the difference in definitions of waste and of hazardous waste as used by the various countries. It
 occurs that a transport fails into different categories in two different countries  and, as a result, must
 be notified in two different ways, gain two  kinds of permission and be accompanied by two different
 documents. When the  direct EU  - regulation enters into force in 1994, this problem will have been
 solved, if only partly
        Apart from the question of the definitions of waste it is also often difficult to prove that a
 shipment concerns illegal hazardous waste  because of complications and uncertainties  when
 representative samples are taken from the waste batch.
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378                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In order to check chains of international transport completely it is always necessary to involve
various agencies in more than one country. This extra communication between these agencies ir
combination with the differences in regulations and competence hampers enforcement.
       Even if an illegal transport is intercepted  by the enforcing agency, it does not always folios
that a environmentally sound way of processing is ensured. Sometimes ft is only with the greates
possible difficulty that a shipment which has been wrongfully offered for import can be sent back
sometimes it even poses great problems. Besides,  sending a shipment back to the country of origir
does by no means always ensure a proper processing.
       Finally, another major bottleneck is the fact that there is no central notification and informatior
point for transboundary  waste transport, This should gather central information about companies as
welt as waste products and  processing capacity in the various countries.
8      EXAMPLES

8.1    Imported waste glue

       Annex 1 gives information about a shipment of illegally imported waste glue which was onh
discovered when it had already been stored in a dump in the Netherlands. The offenders have beer
sentenced to fines up to a total of approx. / 15,000 and to imprisonment. Nonetheless, for the time
being the proper processing of the waste has cost the Dutch government / 50,000, which canno
yet be recovered from the offenders.

8.2    Various imported hazardous wastes

       Annex 2 gives information about another shipment of hazardous waste discovered at a storag<
site for construction and demolition waste. In this case it turned out that making direct contact witl
foreign senders can sometimes put an end  to an illegal situation.

8.3    Transit shredder waste

       Annex 3 gives information about a shipment of shredder waste which, according to th<
German regulation, was shipped as commodity (Wirtschaftsgut) from Germany to  Egypt vi;
Rotterdam, However, as the Dutch regulation  also required notification, the Eyptian authorities an<
the international environmental organization were warned; the ship was forced to leave Egypt an<
return to Germany.
 9     IF MAKING ANOTHER REGULATION ...

       On the basis of experience with and bottlenecks encountered in the implementation of th
 regulation currently in force in the European Union a number of concrete recommendations can b
 made for a similar regulation in other countries.
       These recommendations are set out in the following 'Golden Rules'. Note that these rule
 represent the personal view of the author; nor does the Dutch regulation comply in every respec
 with these golden rules.

       GOLDEN RULES
       1. Give consent only to import from or export to countries with similar regulation,
          including  treaties concerning  the returning  of  illegal consignments  and
          transboundary punishableness.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         379
       2. Decide on uniform and in different countries identical definitions of the (hazardous
         waste) products to which the regulation and treaties apply.
       3, Use notifications and registrations not only for checking individual shipments but
         also for gaining general insight Into and control of the waste stream. In other words,
         data should be made processable and a central, for some waste  substances
         preferably international, registration  point should be set up.
       4. Form a combination of control by regular police or inspection agencies assisted
         by specialist monitoring of a separate enforcement department which is organized
         nationally. Make sure that legal transports can  be easily identified ('green label')
         and that specialists have the competence and knowledge  to carry out in-depth
         control ('looking behind the facts'),
       5. There should be  a  balanced scale level of monitoring and controlling agencies
         partly dependent  on the type of waste,  places  of origin, processing possibilities,
         etc. Choose the scale small enough  to link up, if possible, with existing competence
         and organisations but large enough to have an overview and to be able to control
         international streams.
       6. Be awsre of the differences  in legal systems, competence and organisations of
         other countries. Keep good  contacts with the  network of officers and agencies
         across the border.
       7. Focus monitoring in particular on the 'junctions' of waste streams, such as large
         disposers,  brokers and transporters; in addition, carry out random checks on the
         road.
       8. Choose a clear and uniform strategy of approach of any type of offence which any
         enforcing officer can and will put into practice immediately.
       9. Impose  sanctions  on violating  the regulation which are in  balance with the
         economic profit or otherwise the environmental loss which violating the rules can
         entail.
       REFERENCES

1. Netherlands  rase study in  enforcement of  hazardous waste import/export,  Bouma,  J.R. and
   Gerardu, J.J.A., International Enforcement Workshop, 1990, Utrecht.

2. Regulation on import, export and transit of hazardous waste, Ministry of Housing, Physical Planning
   and the Environment,  1988, 1994, The Hague.

3. E.G-richtlijn betreffende de afgewerkte olie, afvalstoffen, grensoverschrijdende overbrenging van
   gevaarlij'ke afvalstoffen,  Publicattebladen van  de Europese Gemeenschappen o.a. nr L 194/31, L
   194/47, L 108/41, L 326/31, L 272/1, L181/13, Europese Gemeenschap, Brussel.

4. Verordening  (EEG) nr 259/93 van de Raad van  1 februari 1993 betreffende toezicht en controle
   op de overbrenging van afvalstoffen binnen, naar en uit de Europese Gemeenschap. Publicatieblad
   van de Europese Gemeenschappen nr L 30/1, Europese Gemeenschap, Brussei.
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380                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       ANNEX 1

       Case 1
       Imported waste glue

       At the end of May 1992 approx. 15,000 litres of waste glue was found in a garage box in A
The local police tracked  it down and called  in the enforcing officers of the Inspectorate for the
Environment, It proved to  be a shipment from abroad which had been imported without notificatior
or consent. Moreover, the requirements applying for the Netherlands  with  regard to the  propei
handling of hazardous waste had not been met.
       The municipality in which the substance had been discovered took action immediately anc
had it transported to a temporary legal storage, from where it should be sent back to the foreigr
company. Due to  the necessary  judicial complications the foreign company could not be forcec
formally to have the waste collected and  processed, As a result processing  took place in the
Netherlands at the expense of the ministry (approx, / 50,000),
       Meanwhile the Dutch offenders have been sentenced to fines of / 3,500, /10,000 respectively
and one of them to 3 monttis imprisonment as well. At the court session the offenders in vain pu
forward as a defence that it was not a matter of waste but of raw material.
       ANNEX 2

       Case 2

       Various imported hazardous wastes
       In July 1993 a site was rented for storing construction and demolition waste at H, Howevei
in October 40 ton hazardous waste proved to be stored at the site instead, consisting of hospits
waste, old  medicine, paint wastes, contaminated solvents and glue remnants probably  originating
from Germany, Everything had been stored in an environmentally irresponsible manner.
       The local police called in the enforcing officers of the Inspectorate for the Environment. Th<
Dutch firm appeared to be well-known to the Inspectorate because of previous offences and becauss
it had been warned  expressly before not to import hazardous waste into the Netherlands without ths
required formalities. Nonetheless, the  firm had taken care of a consignment of hospital  waste an<
medicine of a (West) German company,  and the  paint, glue and solvents of  an (East) Germai
company.
       After contact wii:h both German companies they were willing to come over to the Netherlands
They consented to have the waste repackaged in an environmentally safe way at their expenses, t<
return it to  Germany arid to have it processed there correctly (cost approx. / 600,000 in  total), Thi;
took place at the end of November 1993. The German authorities were, of course, informed aboi
this transport.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          381


       ANNEX 3

       CaseS
       Transit of German shredder waste to Egypt

       In the harbour of R. in February 1992 shredder waste from Germany was transferred which
aroused  the suspicions of the harbour authorities. After an investigation by enforcing officers from
the Inspectorate for the Environment it was clear that it concerned waste which had resulted after
shreddering cars and that it was destined for an Egyptian firm. In Egypt it would be used as fuel for
cement ovens.
       According to the Dutch Regulation shredder waste is considered to  be hazardous waste.
Transit of this shredder waste took  place in violation of this  regulation. The  German authorities
considered this waste 'Wirtschaftsgut' because according to them it still had  calorific value. The
Netherlands considers incineration of such waste undesirable for environmental  reasons.
       After consultation with the public prosecution it was decided to make an official report against
the German  broker and the Dutch agent.  However, when the notification duty according to  the
Regulation had boen complied with, the Netherlands had no  power to stop the  ship from sailing to
Egypt. The Egyptian authorities were then informed about the arrival of the transport and about the
analysis  results.
       After the ship's arrival the Egyptian authorities put it under police guard and sent it back to
Germany after an investigation, possibly because Greenpeace had also got wind of the transport and
because the  media had given it a lot of attention.


       ANNEX 4
       Amount (kiloton), destinations and ways of processing of hazardous waste exported from the
       Netherlands; (first half year 1993)
Way of processing
Distilling
Detoxicating, neutralizing, draining
Physicochemical processing
Metal recovery
Immobilizing
Incinerating
Dumping
Recycling
Other
Total
B
0,9
0,4
1,4
1,2
2,1
28,8

12,5
2,8
50,1
G
, 0,6
0,4
0,0
3,6

0,8
7,2
7,5
0,0
20,2
U.K. F.
1,2 0,1

0,0
0,0 0,5
6,1
0,2 5,4

0,2

7,7 6,1
Other
0,7


0,6



0,0

1,3
Total
3,5
0,9
1,5
5,8
8.3
35,2
7,2
20,1
2,8
85,4
  The remaining countries are: Denmark (0,7), Japan (0,3), Czechia and Slovakia (0,2) and the United States (0,1).
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382                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        383


THE UNITED STATES' ENFORCEMENT APPROACH TO THE EXPORT AND
IMPORT OF HAZARDOUS WASTE

BROMM, SUSAN E.

Director, RCRA Enforcement Division, Office of Waste Programs Enforcement, U.S. Environmental
Protection Agency, 401 M Street, S.W., Washington, DC 20460, USA


       SUMMARY

       This  paper provides an overview of the United  States' hazardous waste import/export
enforcement program administered by the Environmental Protection Agency (EPA), The paper explains
the internal workings of the U.S. import/export system and presents It as one example of how nations
may use their own laws and interagency cooperation to build a national enforcement program that
will deter illegal transboundary shipments of hazardous waste.
       The United States Government (U.S.) supports a strong  national enforcement program to
deter illegal  transboundary shipments  of hazardous waste. In order to detect illegal shipments of
hazardous waste, the U.S. program is based upon an effective notification and tracking system and
an enforcement system that includes inspections and civil and criminal enforcement sanctions and
penalties. It  also seeks to maintain effective international cooperation, communication and outreach
in technical,  legal and enforcement areas.
       The U.S. model of detection and cessation of illegal waste traffic is based on six elements:
an effective statutory and regulatory program; domestic interagency cooperation; international
cooperation and outreach; compliance assistance; compliance monitoring; and effective enforcement
response. Each of these elements is discussed in detail below. Finally, the author reflects on some
future challenges for the U.S. in improving and updating its import/export enforcement and regulatory
system,


1      INTRODUCTION

       In the past three years, approximately .1 percent of all regulated hazardous waste generated
in the U.S. was legally everted. However, this small percentage totaled 137,000 tons of waste in
1990 and 1991 and 146,000 tons in 1992. Ninety-eight percent of exported waste went to Canada
and Mexico, Mexico received approximately  49 percent of the waste, all of which was in the form of
baghouse dust from the steel industry. This waste was shipped to a facility in Monterrey, Nuevo Leon,
Mexico for recycling. The 51 percent that was shipped to Canada went to a variety of facilities for
recycling or treatment and disposal. In addition to Canada and Mexico, ten other countries received
hazardous waste from the U.S. (See Tables 1 and 2). EPA does not maintain a national database on
hazardous waste imported into  the U.S. at this time and thus does not have statistics on types,
quantities or sources.
 2     STATUTORY AND REGULATORY PROGRAM FOR CONTROLLING HAZARDOUS
       WASTE IMPORT AND EXPORT

 2.1    Statutory authority

       In 1984 the Hazardous and Solid Waste Act Amendments (HSWA) added Section 3017 to
 the Resource Conservation and Recovery Act (RCRA). Section 3017 states that, "no person shall
 export any hazardous waste...unless...the government of the receiving country has consented to
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384                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


Table 1.  Summary of Hazardous Waste Exports by Receiving Country Based on Annual Reports
         Received by EPA through December 31,1993
Receiving Country
Belgium
Canada
Finland
France
Germany
Japan
Korea
Mexico
South Africa
Sweden
The Netherlands
United Kingdom
Totals
1992*
30
72,303
476
78
0
51
61
72,178
0
224
200
289
145,890
1991
350
77,197
2,162
43
0
32
0
57,095
0
266
0
173
137,318
Waste Exported
1990
168
92,099
2,631
355
401
238
0
39,209
0
280
0
1,289
136,670
in Tons"
1989
254
104,135
2,138
0
474
131
0
28,101
23
178
0
5,657
141,091
Total (89-92)*
802
345,734
7,407
476
875
452
61
196,583
23
948
200
7,408
560,969
*  The 1992 value is calculated from Annual Reports submitted by 1992 Exporters and received by
** Volumes are converted to tons, and for most countries except Canada, are based on actual weights reported
In the Annual Reports.Fpr Canada, about 30 percent of total volume is based on approximate conversions from
reported gallons or cubic yards.

accept  such hazardous waste."  This requirement seeks to assure informed consent prior to the
export of U.S. hazardous waste to another nation.

2.2     Regulatory Program

2.2.1   Requirements of export/import regulations

        In August 1986, EPA promulgated regulations to implement RCRA Section 3017.  These
regulations create a system to track waste from its generation in the U.S. or abroad, through its
internationally sanctioned! movement, to its legally authorized acceptance by a foreign facility or for
final disposal in the U.S.
        The export regulations (40 CFR §262.50) (1) outline  a process for: providing notification of
intent to export; requiring government to government communication to obtain the receiving country's
consent, awaiting acknowledgement of a receiving country's consent to the shipment; accompanying
manifests with acknowledgement of consent documents; delivering manifest copies to U.S. Customs
Service at the point the waste leaves the  U.S.;  filing exception reports if receipt of the  waste is not
confirmed by the receiving facility; filing annual reports summarizing amounts and types of waste
exported for the preceding year; and maintaining records of exports on-site for government inspection.
Primary exporters (including intermediaries arranging for the  movement of waste) must comply with
these requirements.
        The import regulations (40 CFR §262.60) establish  a process  to  assure  compliance with
domestic manifest requirements modified for the foreign generator (40 CFR §262,20(a)). Additional
importer requirements (40 CFR §§265.12(a) and  264.12(a)) require U.S. treatment, storage or disposal
facilities to notify the EPA or authorized states at least four weeks before receiving waste  from, a
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         385


       Table 2.  List of Receiving Countries and Number of Corresponding Letters of
               Intent to Export Received by EPA. From 1990 through 1993.
               F:rom the NEIC HW Export Database.
Receiving Country
Belgium
Bolivia
Canada
China
Finland
France
Germany
India
Italy
Japan
Korea
Mexico
Sweden
The Netherlands
United Kingdom
Venezuela
Totals
1993
3

496
1
1
5
3


3

15
4

10

541
Number of Notifications to Export
1992 1991 1990
4

386

4
7
1


6
2
19
1
1
6

437
5
1
375
2
22
3
4

2
5

11
1

8
1
440
4

375
2
1
4
5
1

3
1
20
1

19

436
foreign source. Special  requirements promulgated under Section 6(e)  of the Toxics Substances
Control Act (TSCA) ban the import or export of wastes containing polychlorinated biphenyls (40 CFR
§761.20) in concentrations greater than 50 ppm. Under the law, people can petition for an exemption
from  this prohibition. Exemptions  are  granted  if EPA finds no unreasonable risk to  health or
environment and that the petitioner has made good faith efforts  to find safe substitutes for RGB's.

2.3    Bilateral and multilateral requirements

       The U.S. is a party to bilateral agreements with  Canada  and Mexico,  and also  maintains
multilateral agreements governing transboundary shipments  of hazardous waste.  Notification  and
consent  requirements  are specified in the  Mexican and Canadian bi-lateral agreements.  The
Organization for Economic Cooperation  and  Development  (OECD)  Council Decision for the
Transboundary Movement of Hazardous Wastes for Recovery Operations also requires prior notice
and consent by competent authorities of foreign governments. The OECD decision sets out a three-tier
system (Red, Amber and Green)  for the handling of hazardous and non-hazardous waste. The  Red
tier is for hazardous waste that requires written consent  or objection to  transboundary movement.
The Amber tier includes hazardous and non-hazardous waste that may  move under tacit consent.
The Green tier includes non-hazardous waste, which can also move under tacit consent.
       When notifications of intent to import are received at EPA, they are  reviewed for completeness
and conformance to the applicable agreements, entered into a database, and forwarded to the EPA's
Regional office for review of the importing facility's permit status and enforcement history.  If the  U.S.
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386                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
has no objection to the import, the shipments may go forward under tacit consent after 30 days have
lapsed, or with written consent as required by OECD for Red tier wastes, or when the exporting
country expressly requires written response,

2,4    Enforcement tools for hazardous waste import/export

       Strong enforcement mechanisms help ensure compliance with the regulations and provide a
deterrent  to  illegal waste  traffic.   EPA employs its strong criminal enforcement authorities,
supplemented with civil Judicial and administrative enforcement capabilities, to provide the necessary
flexibility in responding to illegal traffic.
       EPA has underteiken most of the import/export enforcement actions to date ater detecting
violations of the documentation requirements (e.g., failure to submit an  annual report,  manifest
violations, etc,). Documentation violations  may  be an indicator of serious hazardous waste
management problems at a facility.  EPA may verify a facility's compliance by conducting follow-up
inspections. These inspections can be used to examine contracts with foreign facilities and manifests
of imported or exported waste and may reveal failures to notify EPA of an import or export.
       The EPA enforces statutory, regulatory and international requirements concerning hazardous
waste  using the authorities  of RCRA,  TSCA, and  the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA).

2.4.1   RCRA Enforcement Authority

       EPA can initiate administrative or civil judicial enforcement actions to seek penalties of up to
$25,000 per day per violation under the authority of RCRA Section 3008(a). This section also provides
authority to issue compliance orders, initiate civil actions for injunctive relief, and suspend or revoke
any RCRA permit issued by the federal government or by a state. For criminal violations, EPA may
seek up to $50,000 per day per violation or up to five years imprisonment for specified violations.

2.4,2   RCRA Inspection Authority

       EPA  can enter,  inspect, copy records of, and obtain  samples from facilities that  handle
hazardous wastes, including generators, under the  authority of RCRA Section 3007, EPA also has
the authority to require persons to furnish information regarding the waste they have handled and
delineates the availability of such information to the public.

2.4,3   Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

       In special circumstances the emergency removal authority of CERCLA Section 107 (also called
Superfund) has been used to ensure proper disposal of drums that have been illegally exported and
returned to the U.S. by the receiving company. CERCLA allows EPA to take direct action to remove
hazardous substances which pose  a threat of release to the U.S. environment and recovery costs
from responsible parties; or to require  the responsible parties to take action in the first instance.
CERCLA's emergency  removal  authority does not apply to environmental threats  outside of the
territorial waters of the  U.S., thus it is limited to facilitating disposal of waste once returned to the
US.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         387


3      DOMESTIC INTERAGENCY COOPERATION

3.1    Communication on import/export notification

       The EPA's Office of Waste Programs Enforcement, RCRA Enforcement Division, is named as
the competent au-hority  for processing import and export notifications. The EPA personnel who
process the notifications for the export or import of hazardous waste review submittals of notifications
for any outstanding inconsistencies or deficiencies. The review may include: verification of the type
and the volume of waste to be exported/imported,  the existence of a receiving facility in the importing
country, confirming that the receiving facility is permitted, and obtaining consent from the receiving
country.
       EPA Headquarters and  Regional import/export coordinators keep each other informed of
shipments and facilities which could pose potential environmental threats and of importers, exporters,
transporters, and brokers who  may  be subject to enforcement action due  to their import/export
activities through regular conference calls and periodic conferences. Regional criminal enforcement
staff contact Headquarters for information on facilities which have notified of their intent to export in
order to determine whether there are potential violations  or criminal activity taking place.
       EPA may contact the U.S. Department of State and U.S. Embassy in the importing or exporting
country for assistance in processing the  notifications  and verifications. For example, EPA
Headquarters recently received a notice of intent to export submitted by a U.S. entity serving as a
potential broker for numerous wastes from unidentified generators shipping to a non-existent facility
in a developing country. The State Department was alerted and the notice was denied because it did
not provide the required  information under the RCRA export regulations.

3.2    Communication and cooperation on compliance monitoring and enforcement

       Congress, in 18  U.S.C.  3063, gave EPA the primary responsibility for assuring compliance
with the environmental statutes it administers. EPA works closely with a broad cooperative  network
of federal and state enforcement agencies on domestic and/or international hazardous waste matters,
including detection of exports that do not  proceed in accordance with the export requirements. To
assist in thes'e matters, EPA has Memoranda of Understanding (MOUs) on riazardouslwaste' matters
with the Department of Transportation (DOT), Federal Bureau of Investigation (FBI), U.S. Customs
Service, Department of Labor's Occupational Safety and Health Administration (OSHA), and the Coast
Guard. (Currently, EPA, DOT and the U.S. Customs Service are discussing potential revisions to their
respective MOUs to  keep pace with changing coordination needs.)  The EPA also works closely with
the Department of Justice (DOJ) and the Department of State. Some examples of joint agency efforts
include DOT working  with the  EPA to detect hazardous waste transportation violations and joint
investigations conducted by the FBI and EPA. OSHA's  compliance monitoring  violations of  health
and safety standards sometimes reveal violations of environmental  laws, including the export laws,
resulting in referrals to ERA. EPA and the  Coast  Guard  coordinate  extensively when contamination
threatens inland waterways and coastal areas. DOJ represents EPA in civil judicial and criminal cases.
The U.S. Customs Service plays an integral part in the prevention of illegal traffic of hazardous waste.
       The Memorandum of Understanding between EPA and the U.S. Customs Service originated
on December 29, 1986, when Customs and the EPA entered into an agreement for the enforcement
of the hazardous waste requirements. The MOU  established a program to monitor and spot-check
international shipments  of hazardous waste to  assure compliance with hazardous waste  export
requirements. The U.S. Customs Service provides EPA with valuable oversight on the movement of
wastes across U.S. borders and ports, and EPA provides training to  Customs officials to ensure their
expertise in providing such oversight. Under the Export Administration Act Amendments (2) of 1985,
Customs has broad authority to stop, search, and examine shipments of hazardous waste when it
has reasonable cause to suspect that those wastes are being illegally exported. If it has probable
cause, Customs may seize and detain any suspect shipment.
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388                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In addition  to working with Federal agencies, EPA works closely with state agencies in
detecting and responding to transboundary hazardous waste shipment violations. For example, in
developing a system to track hazardous waste import shipments from Mexico, EPA has relied heavily
on states to obtain shipment data. Moreover, EPA is funding state efforts to provide support in training
Customs personnel in detection of  illegal waste shipments to and from Mexico. A model task force,
involving federal, state and local environmental and law enforcement agencies in California, has
detected a number of illegal shipments. The key to the success  of the task force is their constant
presence on the border and at facilities. Many times, this presence can be more practically obtained
by state and local law enforcement agencies than by the federal government.
4      INTERNATIONAL COOPERATION AND OUTREACH

4.1    International cooperation

       Routine and timely coordination between countries is critical to the detection and deterrence
of illegal transboundary waste movements. For example,  the'U.S. Government alerts foreign
governments about exporters whose notifications of intent to export provide vague or misleading
information about shipments of hazardous waste or raise questions about environmentally sound
management of the waste in the foreign country.  Similarly, the EPA either directly or through the
Department of State  notifies foreign  governments when the exporter attempts  to  circumvent
requirements of international agreements. EPA has also provided information to foreign governments
on the enforcement status of U.S. importing facilities so that they  can make informed decisions on
whether to allow exports to those facilities.
       The U.S. enjoys particularly strong, cooperative relationships with Canada and Mexico in the
area of transboundary shipments of hazardous wastes. EPA views these relationships as an extremely
effective method of detecting and halting illegal waste traffic. To enhance such cooperation with other
countries, EPA has provided assistance to countries developing their own compliance monitoring and
enforcement programs. EPA has provided training  to representatives of foreign environmental
enforcement  agencies and to inspectors for detecting illegal waste traffic. Some examples of our
cooperative efforts follow.

4.2    Cooperation with Canada

       Because most of the waste exported from the U.S. goes  to Canada, it has been essential
that the two countries develop  a close working relationship. One  example of close cooperation on
the processing of import/export notifications was Environment Canada's participation in a  1993
national meeting  with EPA  hazardous waste import/export personnel.  Environment Canada staff
provided valuable information on the processing of export and import notices, Canadian laws and
regulations governing the environment and enforcement procedures, including penalties.
       An example of EPA coordination with Canada on compliance monitoring and enforcement
was the  1989 detection of PCBs, solvents and waste oils blended and mixed  with  fuels.  These
contaminated fuels were sold to customers in Canada and New York State. EPA informed Environment
Canada of the operations, and Canada responded promptly by limiting the number of ports of entry
for such imports. Canada then monitored and tracked the shipments closely. EPA and Canada have
also worked together on coordinated border crossing inspections, information exchanges, and a toxic
reduction agreement among the U.S., Canada, New York State, and Ontario.

4.3    Cooperation with Mexico

       In 1983, the  U.S. and Mexico  entered into  an agreement to work together to improve
environmental protection in their joint border area. That agreement, The Agreement between the
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         389


United States of America and the United  Mexican States on Cooperation for the Protection and
Improvement of the Environment  in the Border Area (also referred to as the La Paz Agreement),
contains provisions for annexes which address specific environmental issues. Based on the La Paz
Agreement and its annexes, the two countries agreed  to develop a comprehensive environmental
plan for the border region. The resulting Integrated Environmental Plan for the Mexican-U.S. Border
Area, First Stage, 1992-94 (Border Plan) mapped out a strategic plan for the U.S. and Mexico to
enhance coordination and assist in building each others' environmental capabilities. The Border Plan
allowed for cooperation from each nation to improve the following: coordination of numerous agencies
responsible for regulation of the transported wastes; logistics of transboundary transport; tracking of
the amount of hazardous waste generated in Mexico (Maquiladoras) from U.S. raw materials; and
tracking of the amount and type of hazardous waste  transported and the ultimate location of  its
disposal.
       In  addition, the Border Plan  memorializes several U.S./Mexico workgroups, including  the
Cooperative Enforcement Strategy Work Group and the Hazardous Waste Workgroup.  These
workgroups aim  to expand both countries' environmental  enforcement and hazardous waste
management capacity through  enhanced  cooperation. Both work- groups have  established
subgroups. For example, the Cooperative Enforcement Strategy Workgroup has geographically based
sub-workgroups  comprised  of  regional EPA and SEDESOL officials, while the Hazardous Waste
Workgroup has established functionally based workgroups in order to enhance information exchange,
technical assistance on transboundary movement of hazardous waste, and sitings of abandoned or
illegal hazardous waste  dump  sites.  Other,  activities conducted by the workgroups and
sub-workgroups include cooperative training and joint facility visits, information management training
and assistance,  and cooperative priority  setting, and cluster  filings of enforcement  actions
simultaneously announced by both countries.
       The  U.S./Mexico Hazardous Waste  Workgroup has  developed  a specialized, binational
Hazardous Waste Tracking System database to track shipments of hazardous waste across  the
U.S./Mexican border. Within EPA, this database is managed by the Regional office in  Dallas. The
potential of the database as a compliance monitoring tool was first demonstrated in June 1993, when
EPA filed three administrative enforcement actions for import shipment violations, developed with the
use of the database. Additional cases have recently been filed from  evidence gathered from  the
database.
       Cooperative Enforcement Work Group activities between the U.S. and Mexico have  led to
increased detection and  cooperation in  investigating  illegal  shipments  and cleaning  up illegally
dumped  transboundary shipments. This cooperation  has led to U.S. criminal actions for  illegal
shipments. U.S. arid Mexican Customs Services have increased direct interaction in detection and
safe handling  of  transboundary waste  shipments.  Furthermore, the U.S.  has provided training to
Mexican environmental inspectors, and the two governments plan to increase their use of cooperative
enforcement tools;  such as the binational  Hazardous Waste Tracking  System to target  illegal
transboundary waste shipments for an enforcement response.

4.4    NAFTA-related cooperation

       The U.S., Canada, and Mexico signed an agreement to promote environmental cooperation,
in conjunction with the  North American Free  Trade Agreement (NAFTA),  forming a trilateral
Commission on Environmental Cooperation. The Commission will  consist  of a Council of three
members (comprised of the Cabinet-level officials from Canada, Mexico,  and the United States), a
Joint Public Advisory Committee (comprised of non-governmental organizations acting in an advisory
capacity), and a Secretariat. Each country commits to effective enforcement of its environmental laws,
and the  Commission  is empowered to respond to complaints of lax enforcement, including  the
initiation of dispute resolution procedures leading to the possibility of trade sanctions or monetary
penalties imposed on a country which fails to adequately enforce its environmental  laws.
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390                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       The Commission will consider the regional environmental implications of industrial process
and production methods (e.g., life cycle analyses, and chemical input analyses to determine impact
on waste  generation,  transboundary waste  movement,  and waste minimization opportunities),
promote greater public access to information about hazardous substances and consider ways to
promote the assessment and mitigation of transboundary environmental problems. The Commission
will serve as a point of inquiry and resolution for public environmental concerns. One of the major
goals of the Commission is to  discuss regional environmental issues, for example,  addressing
capacity issues on a regional scale to minimize transboundary shipments.

4.5    Multilateral cooperation

       In  addition  to  building our relationship with Canada and Mexico, EPA supports current
international efforts to  enhance cooperation in environmental  enforcement. EPA has developed a
working relationship with the International Criminal Police Organization (INTERPOL) and participated
in the  June 1992 Symposium on  Fraud and Environmental  Crime sponsored by INTERPOL. in
November of 1992, INTERPOL's general assembly passed  resolutions formally recognizing the
existence  of environmental crime, reflecting the first major initiative by the world law enforcement
community to officially  recognize the seriousness of environmental crimes.
       In September of 1993, Earl Devaney, Director of EPA's Office of Criminal Enforcement, headed
the U.S.'  delegation to  INTERPOL and made  a  presentation that focussed  on  improving the
international community's capacity to investigate  environmental crime. He was elected chairman of
INTERPOL's Workgroup on Transboundary Movement and Dumping of Waste Products, which will
enact recommendations for INTERPOL in May of 1994.

4.6    International workgroups

       EPA is actively  participating on several workgroups regarding international agreements,  such
as the OECD Decision and the Basel Convention. EPA has found that actively participating in these
workgroups offers the best exchange  of thoughts on  global environmental  changes and the
development of preventive measures to protect human health and natural resources.
 5     COMPLIANCE ASSISTANCE

 5.1    Compliance assistance

       In general, companies  exporting large volumes of hazardous waste have a fairly good
 knowledge of the RCRA export regulations. Facilities exporting waste to Canada and Mexico on a
 regular basis are familiar with the procedures and provisions of the  two bi-lateral agreements
 governing trade of hazardous wastes with those countries. However, we have found that there is less
 familiarity with the export/import provisions of the OECD agreement.  Because of this, EPA has met
 directly with the regulated industry on several occasions to brief them on the agreement and the
 regulatory changes  EPA is developing to implement the  OECD requirements. When OECD
 implementing regulations are complete, EPA will  publish them  in the Federal Register, thereby
 providing additional notice to the regulated industry However, even before these  regulations are
 published, we are receiving and processing notifications and assisting companies in complying with
 requirements of the OECD agreement.
       EPA operates a contractor run RCRA/CERCLA Hotline that is available to the public through
 a toll free telephone number. The public may request and receive copies of international agreements
 (bi-laterals with  Canada and Mexico, the OECD agreement and Basel Convention),  Fact Sheets on
 Basel and OECD, as well as copies of the export/import regulations and other information from the
 Hotline. Hotline  personnel are trained to answer questions posed by the exporter or  importer on the
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         391
transboundary movement of hazardous waste. If the Hotline staff are unable to answer the exporter
or importer's questions, an EPA employee will contact the exporter or importer to offer assistance.
       EPA provides training for federal and state inspectors on the export/import regulations and
international agreements. This training is provided free of charge  to the inspectors  as part of the
RCRA Advanced Inspector Institute Training. For inspectors and law enforcement personnel who are
unable to attend the institute, EPA has just recently produced an export/import inspection video that
is available in English, French and Spanish. The export/import inspector video was produced by the
Office of Enforcemsnt, National Enforcement Investigations Center,  located in Denver, Colorado and
the RCRA Enforcement Division.
       EPA and SEDESOL jointly hosted a Maquiladora Conference in November of 1993 in Tlajuana,
Mexico. U.S./Mexican hazardous waste border activities, U.S./Mexican  Customs requirements for
hazardous  waste, and transport requirements were discussed. Canada and individual U.S. states
participated by giving presentations on their hazardous waste requirements. A pollution prevention
seminar was offered  as part of the conference. In addition, a bilingual manual entitled, "Hazardous
Waste and the Maquiladora Industry" which among other things,  discussed import and export
requirements, was distributed.
6     COMPLIANCE MONITORING

       EPA requires domestic hazardous waste generators, facilities and transporters to obtain
identification  numbers  and imposes  stringent recordkeeping, reporting, facility management and
waste tracking requirements. This has proven to be an effective and efficient means of ensuring that
generators and transporters adhere to strict environmental standards, and serves as a deterrent to
illegal trafficking of hazardous waste.
       EPA believes it is imperative to try to stop the transboundary illegal disposal of hazardous
waste by preventing it from ever leaving the country of origin. Monitoring of the domestic regulatory
program is one of the most effective and efficient ways to deter illegal exports. The hazardous waste
program is based on cradle-to-grave  management of hazardous waste. A  manifest system that is
uniform among all 50 states  tracks the waste from point of generation to point of disposal. Without
this paper"trail,lhe'j6b~6f detictiorTwould be c)ifficult7if'not impossible. If the'wasle"i¥exported, the
manifest is returned from the foreign receiving facility to the U.S. exporter, who is required to maintain
it in their flies for three years,

6.1    Information gathering and tracking

       EPA maintains an export information management system to track submissions of notices of
intent to export, acknowledgements of consent, export manifests  collected by US. Customs Service,
and annual reports. EPA continues to  implement improvements and modifications in the processing
and tracking of hazardous waste exports. These efforts include the allocation of more resources to
process and collect data, and development of an improved national tracking system. The new national
tracking system being developed by EPA headquarters will include additional import and export data
elements crucial to fulfilling requirements in international agreements, such as Basel and OECD, and
their anticipated implementing legislation and regulations. The new database will also have the ability
to link up with other enforcement databases. EPA is  developing standard operating procedures to
facilitate  processing of notifications and ensure quality control of the information collected.
       illegal exports are stopped at the Canadian and Mexican borders, if they are not accompanied
by an EPA Acknowledgement of Consent. Facilities that have taken imported waste that have failed
to notify  the EPA or state as required by the import regulations  are detected during routine EPA or
state  inspections of the facility. EPA or state inspectors may compare annual reports with notifications
of intent to export to reveal exporters who may have exceeded allowable quantities or types of waste,
and/or who have failed to notify the Agency of an export. The uniform manifest that must accompany
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the waste to the U.S. border and is returned to EPA from Customs, is another way to identify illegal
exports. Examples of detection of illegal shipments are given below.

6.2    EPA Alerts

       EPA relies on the information forwarded from the regulated community within the U.S. and
from companies operating on foreign soil. For example, in 1993,  EPA received several copies of a
letter distributed throughout the  United States and Europe by person(s) living in Nigeria who were
soliciting the illegal disposal of hazardous waste for a very cheap price. EPA immediately cabled the
Nigerian Government to alert them of this potential environmental danger. In addition to notifying the
Nigerian Government, EPA also notified the U.S. Department of Commerce and the U.S. Department
of State. EPA will continue to work closely with other Federal agencies, foreign governments and U.S.
Embassies to keep them apprised of suspected illegal activity.

6.3    Tips

       EPA relies on the tips and information provided by the public. As public awareness increases
on the handling of hazardous waste, more and more concerned citizens are notifying EPA when they
suspect illegal activity at a plant, facility or non-hazardous waste dumping grounds. Tips by employees
of a violating company are another important means of detecting violations,  particularly those that
are criminal in nature. EPA has taken action on tips provided by foreign enforcement authorities. One
tip, provided by the Mexican customs sen/ice, resulted in a criminal indictment for violations of U.S.
environmental laws.
7     EFFECTIVE ENFORCEMENT RESPONSE

       In March, 1988,  EPA issued an enforcement strategy for its newly promulgated hazardous
waste export regulations. This document was key to identifying the roles and responsibilities of the
various EPA offices involved, as well as the U.S. Customs Service. It identified what known facts about
the regulated community, where good compliance was expected and where potential violations might
be found. It contained a strategy for targeting inspections where violations were anticipated, building
on existing domestic inspection targets. It also targeted key ports of entry and exit for border spol
checks.  The  strategy addressed the classification  of violations and  the appropriate enforcement
response, ranging from informal actions like a notice  of violation or warning letter  to formal civi
enforcement orders to criminal actions for violations  done with knowledge and intent. The strategy is
based on the premise that a strong enforcement program is key to deterring illegal activities.
       Since issuing the strategy, EPA has made it a practice to undertake "enforcement initiatives.'
An enforcement initiative1 involves the targeting of inspections and investigations at a  certain activity
or sector,  and publicly announcing resulting enforcement actions  through high visibility press
announcements. For example, EPA undertook an enforcement initiative on September 26, 1991 tc
target illegal export and  import of hazardous waste and chemicals. The EPA filed  a total of 23 cases
to enforce the export and import regulations of RCRA and other U.S. environmental protection statutes
including 16 administrative actions to address a broad range of export and import violations undei
RCRA.
       In addition to the administrative cases,  EPA,  with the aid of Department of Justice, files man}
civil and criminal cases  per year. Several criminal cases pertaining to illegal exports have been filec
over the past few years. The decision to file a criminal case is based on the knowledge and inten
of the violator. For example, a recent case decision involved the illegal export of drums containing
hazardous waste to Pakistan where the perpetrator planned on dumping the waste down the family
owned mine shafts. (3) The Pakistani authorities intercepted the shipment and the drums were sen
back to the United States where the waste was properly disposed of. The Court ordered the defendan
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         393
to pay over $250,000 in restitution and fined him $200,000. The perpetrator had full knowledge of the
intended illegal export and illegal disposal.
       In another recent criminal case, U.S. v. Stoller Chemical Co., et.al, three individuals and two
corporations were convicted for the illegal export of hazardous waste to Bangladesh and Australia.
The Stoller Co. had legally been  using waste products from copper processing to make fertilizer.
However, when they experienced  a shortage of this legally exempt waste, they substituted a more
toxic, non-exempt waste. As a result, the shipment became subject to RCRA Section 3017 notification
and consent requirements. Because no notice was filed by the exporter, neither receiving country was
asked for or gave consent. By the time the situation was uncovered in the U.S., the waste was en
route to the receiving countries. Fortunately, government to government contact was made and most
of the waste was intercepted before it was applied as fertilizer.
       Civil and criminal prosecution of recalcitrant violators often proves to be the best deterrent of
crime. The importance of criminal liability is that it provides added incentive to refrain from harmful
conduct by emphasizing its culpable character,  and,  in many cases,  by allowing more stringent
enforcement measures or penalties to be imposed. (4) However, it is also the most resource intensive
approach for the Agency- EPA would  like to look to more innovative enforcement tools to deter crime
and ensure compliance, (5) A proposed study of the  recent enforcement initiatives undertaken by
EPA and the states will help EPA build a profile of the type of activities used by violators and help
EPA focus its rescurces in an effective manner.
8     FUTURE CHALLENGES

       Although the United States has made  great progress  in the control of transboundary
movements of illegal wastes, it will be a challenge to keep abreast of the changing global issues in
hazardous waste management and implement growing requirements with limited resources. These
challenges lie in such diverse areas as: I) enhancing enforcement, 2) improving domestic capacities,
3) working with other countries to facilitate efficient notification, tracking and enforcement measures;
and 4) becoming parties to and  implementing international agreements designed to enhance
international regulation of hazardous waste trade. These goals will be addressed in the remainder of
this section;                    	~	    "	~	~

8,1    Enhancing enforcement

       There are a number of concerns in enforcing import/export requirements. Circumstances and
issues not anticipated or addressed by current laws and regulations have arisen stemming from the
growing trade in hazardous waste and the advent of new international agreements.
       In order to meet our obligations as a Basel signatory, EPA is currently meeting with other
executive departments and agencies and is preparing to work with Congress on amending RCRA to
allow full implementation of the Basel requirements. We are considering provisions that would include
more authority to regulate and enforce the passage of imports of hazardous wastes into the U.S.,
limit the types of wastes leaving the U.S., allow for repatriation of waste when a foreign facility is not
equipped to handle the waste, and allow the U.S. to determine if the waste will be managed in an
environmentally sound manner in the country of import. In addition, the U.S. is developing legislation
to control the movement of hazardous waste by  U.S. citizens in Antarctica and to ensure its return
to the U.S. under most circumstances.

8.1.1  Exports
        EPA lacks authority to enforce against an exporter or importer who transports waste that is
 not covered under ERA's domestic hazardous waste program. This is an issue particular^? for waste
 exported for recycling, since many recycling operations are not regulated under domestic U.S. law.
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For example, if a company wanted to export lead acid batteries for recycling in a foreign country, the
batteries would not be suDject to the U.S. export regulations because they are not subject to domestic
manifest requirements.
       Currently, EPA cannot unilaterally stop a shipment of hazardous waste to a receiving country
if that country has consented to receive the waste. For example, if EPA knows of questionable recycling
or disposal  practices at the receiving facility, it can only notify the competent authority of these
practices.
       Also EPA currently lacks authority to require an exporter to obtain financial assurance for
shipments to another country to ensure that adequate funds are available to redress problems in the
event the waste is misdirected or mismanaged. Only the receiving country may require the exporter
to have financial assurance to cover any damage that may be caused by the exported waste.
       Although EPA has increased its law enforcement staff to handle illegal activity in hazardous
waste,  illegal export of hazardous waste cases often prove to be the most difficult to prosecute. This
is  attributed to the complexity of EPA's regulations defining hazardous waste. In addition, the  best
evidence of the violation, the waste Itself, has often already been exported, requiring direct, timely
coordination with foreign governments to develop the evidence to and ensure proper management
of the exported waste. Prosecution of these cases is resource intensive for both the Agency and the
Department of Justice.

8.1.2   Imports

        Under current regulations, a  broker who imports hazardous waste  can repackage,
reconsolidate and remanifest it so that the final U.S. receiving facility does not know where, or  from
whom, the waste originated. This can occur at an unpermitted transfer facility, if the waste is held for
10 days or  less, or at a permitted storage facility. There are no annual reporting  requirements for
imported waste,  making it difficult to quantify. The only data available are based on notices received
from countries that are parties to OECD or other bilateral or multilateral agreements. (See Table 3)

                     Table 3.  Summary of Notices Submitted to EPA by
                              Foreign Countries Intending to Import
                              Waste Into the United States from January
                              1,1993 through December 31, 1993.
                     Fcireign Country                Number of Notices

                     Austria                                 2
                     Canada                               663
                     Germany                             77
                     The Netherlands                         1
                     Singapore                               2
                     Sweden                                 1
                     Switzerland                            27
                     Taiwan                               17


       The import regulations do  not define "importer."  In  reality, the generator, transporter, any
 brokers and the importing facility are all involved in a waste import. Without a clear definition ol
 importer, the mutual responsibility of these parties for the manifest and notifications is unclear.
       EPA also needs to be able to do compliance monitoring  checks on imports. One approach
 would be to require that a copy of the manifest be left with U.S. Customs when the waste enters the
 country. This would assist both in enabling us to ensure that imported waste is properly managed in
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        365


the U.S. and in enabling us to cooperate with the exporting country in detecting violations of their
waste export laws.

8.2    Improving domestic capability

8.2.1   Increased interaction among the EPA's Headquarters, EPA Regional offices and states

       Although EPA Headquarters, EPA Regions and states all support a spirit of cooperation
regarding the regulation of transboundary movement  of hazardous wastes, resource constraints
sometimes inhibit timely interactions. Presently the EPA holds a monthly import/export conference
call between Headquarters and the Regions to discuss any new import/export information, including
enforcement information and updates on any policies, guidance or items of international interest that
may have arisen over the past month.  Increased effort to coordinate and disseminate information
among EPA and the States regarding facilities, transporters, brokers, specific shipments,  etc. and
keep all apprised of any suspicious activities would be  beneficial.

8.2,2  Improving the capabilities of the  computer databases used to track transboundary shipments
       of hazardous wastes

       Although EEPA has begun developing a new national computer database to track the import
and export of hazardous waste, the system  is far from complete. Several Regions have implemented
their own separate tracking systems. EPA  as a whole would benefit torn any integration  of these
systems. Two benefits would be a greater ability to monitor  and track the transboundary movement
of hazardous waste  and a greater  ability  to use the  database  for compliance and enforcement
activities.  Other countries, such as Canada, are experimenting with automatic data processing of
notifications. This is an approach that the U.S. should explore.
       Another idea would be to establish electronic communication with other countries for the
purpose of sharing and tracking import/export information more efficiently. This would aid all involved
countries with the tracking and enforcement of shipments of hazardous wastes. This could possibly
be done via the already established  Internet System or  through other E-mail systems.
       Another  possible improvement  would be to work  with U.S. Customs to obtain  manifest
information via electronic media in order to present a more complete picture of import/export activity.
The Customs information would provide  us the actual amounts of hazardous wastes that are imported
and exported. (The notifications we now receive are before the fact and thus only give approximations
of actual wastes and volumes.)  Currently  data on actual shipments is available to the EPA on an
irregular basis and is not always timely.

8.2.3   Improving preventative measures inside the  U.S. to decrease the amount of wastes sent
       beyond our borders

       The  U.S. EPA supports  waste  minimization as part of  its pollution prevention program.
Supplemental Environmental Projects  involving waste minimization are being incorporated  into
enforcement settlements. States are now putting pollution  prevention and waste minimization into
their laws. Increasing outreach efforts to educate the public  and the regulated industry are in effect.
Currently, generators of hazardous waste must certify in their biennial reports that they have a waste
minimization program in place. Under 40 CFR § 262.56 exporters must also certify that they have a
waste minimization  plan in  their biennial  reports.  Despite these  requirements, additional waste
minimization is possible.  Domestic efforts to minimize waste generation will hopefully decrease the
need to export wastes.
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8.3    Becoming a voting member of Basel

       The Clinton Administration is attempting to produce  legislation  that will incorporate the
precepts of the Basel Convention, thus allowing U.S. ratification. EPA has given a high priority to
becoming a party to  Basel. Even though we are not currently a voting member, the U.S. actively
participates in meetings and committees, We attempt to abide by the rules when exporting hazardous
wastes and encourages other countries to abide by the rules when importing hazardous wastes to
the U.S.

8.4    Working with other countries to facilitate efficient notification, tracking and enforcement measures

       After the U.S.  becomes a party to Basel and promulgates regulations to implement both the
Basel Convention and the OECD agreement,  there will be predefined  notification  and  tracking
methods  the  U.S. and other member countries will  be obligated to follow.  One significant
implementation problem is the discrepancy in hazardous waste  codes among countries. In many
cases, one country's  waste codes do not easily translate into another country's system, even when
a narrative description of the waste is included. The task of translation is time consuming and difficult
at best and impossible at worst. However, countries  will not be willing to consent to shipments if they
are not confident they know what the wastes are.
       Similarly,  it would be useful  to have some commonality among  key definitions such as
"recycling* and "recovery facility", so that trading countries know exactly what a facility does, and to
what materials. This will help to reduce the confusion in the transboundary trade of waste, and thus
reduce illegal exports.
       Finally, the term "environmental sound management" (ESM) as used in the Basel Convention,
must be defined. Without a definition each country must rely on its own judgement of what comprises
"ESM", leaving a widespread range of interpretations.
9     CONCLUSION

       The  U.S. believes that it is necessary to enhance  domestic compliance monitoring and
enforcement capabilities and cooperate with other counties in order to effectively monitor and halt
illegal transboundary shipments of hazardous waste. We are continually striving to improve our system
and, in doing so,  strengthen and enhance our methods of deterring the illegal import and export of
hazardous waste.
       The  EPA places a high priority on the  integrity  of its information  management system,
compliance  monitoring and enforcement program, and coordination with other state and federal
agencies and enforcement agencies from other nations. Working together, the domestic compliance
monitoring and enforcement agencies from the many countries involved in waste trade have made
great progress in detecting and halting illegal waste traffic.
       ACKNOWLEDGEMENTS

       The author wishes to gratefully acknowledge the substantial contributions of Estelle Bulka,
Susan Garcia and Karen Milne in the development of this paper and the contributions of Patricia
Murray, Marcella DePont and Marilyn Franklin in the preparation of the manuscript.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        397
       REFERENCES

1.  The Code of Federal Regulations (CFR), updated annually, contains all regulations. The hazardous
   waste regulations are in the volume covering Parts 260 to 299, The CFR is published by the U.S.
   Government Printing Office,

2.  Export Administration Act [EAA], 50 U.S.C. app. §2411 (1969), as amended by the Export Admini-
   stration Act Amendments of 1985, Pub. L. No. 99-64.99 Stat 120 (1985).

3.  See, United       v. Tarig Ahmad. No. CV92-2Q1  (C.D. Cal, Aug.  9, 1993).

4.  See generally Richardson, Ogus, and Burrows, Policing Pollution (Oxford,  1982), 15-17.

5.  EPA and states have created several pilot enforcement programs such as the field citation program
   or the "toxic tickets" issued by frie inspector directly to violators of the hazardous waste regulations;
   handling referrals from the RCRA Hotline of criminal  hazardous  waste activity; and building a
   manifest data base to track hazardous waste sent to the United States from Mexico.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                    399





                  SPECIAL TOPIC WORKSHOP

       Field Citations as an Approach to Enforcement



 1.  Civil Field Citations, L Paddock	401

 2.  Field Citations: A Tool for Enforcing UST Regulations in New Mexico,
    S.A Sutton-Mendoza	409

 3.  United States' Clean Air Act Field Citation Program: New Enforcement Authority
    to Address Minor Violations, J.B. Rasnic, J.M. Engert	421
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         401


CIVIL FIELD CITATIONS

PADDOCK. LEROY (LEE)

Director of Environmental Policy, Minnesota Attorney General's Office, 102 State Capitol, Saint Paul,
Minnesota 55155 USA


1      SUMMARY

       The  number of facilities, particularly  smaller facilities, subject to environmental  laws has
increased rapidly in the United States since the mid-1980s. To deal with this heavy new workload,
the federal government in the Clean Air Acts' amendments of 1990 the State of Minnesota and a few
other states have introduced a  new enforcement tool known as field citations. In  Minnesota, field
citations may be issued by environmental inspectors and state conservation officers for up to $2,000
for illegal disposal of solid waste such as tires, batteries, appliances and garbage. Experience from
the first three years of the program demonstrates that field citations are effective in dealing with these
solid waste problems. Further, the experience shows that field citations may be useful in dealing with
other environmental enforcement problems, especially where the violation can be readily identified,
the amount  of penalty is fixed, and where enforcement officials whose other responsibilities involve
issuing similar documents are involved.


2     INTRODUCTION

       Beginning in the mid-1980s  the number and types of activities covered by environmental law
in the United  Stales changed  significantly.  New  laws  and regulations  such as those addressing
chlorofluorocarbons (CFCs), small  quantity hazardous waste generators, community right-to-know
requirements,  underground storage tanks and others brought tens of thousands of smaller facilities
under the environmental regulatory  umbrella.
       This dramatic expansion in the reach  of environmental programs had important implications
for enforcement. Tools that were used to deal with a smaller number of larger facilities (primarily
notices of violations and civil judicial penalty authority) were not well suited to address the much
higher volume of violations that were occurring as a result of the expanded coverage of environmental
laws. New approaches that deter serious violations such as criminal sanctions and new administrative
enforcement tools that were more efficient and more effective than the older methods were needed
to meet the  challenge of ensuring compliance with environmental laws. One of the new administrative
enforcement tools, field citations, has proven to be a valuable option in Minnesota in dealing with
one set of environmental  compliance problems.


3     THE PROBLEM

        In the  lattsjr half of the 1980s waste  tires, batteries and old appliances were banned from
disposal in  landfills in Minnesota. At the same time the costs of disposal of solid waste increased
rapidly because ol a shift to incineration as the primary means of disposal and because of new landfill
construction requirements. The result was a significant increase  in illegal disposal of tires, batteries,
appliances and other solid waste, especially  on public land such as roadsides and parks.
       The  two enforcement options that were available were not very successful in addressing the
illegal disposal problem. Criminal littering penalties (maximum fine of $700) require a high standard
of proof (beyond a reasonable doubt) and depend upon the interest and time constraints of criminal
prosecutors and judges.  The other option, a civil restitution statute, allows a governmental unit to
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402                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
recover up to four times the cost incurred by the governmental unit to clean up the site. This statute
is used very little, probably because of the reluctance to "front end" the money needed for clean up.
Another enforcement tool was clearly needed to better address the disposal problems.
4      THE PROCESS

       The field citations program was introduced in 1991 as a pilot program to test its effectiveness
in dealing with solid waste problems. The program allows solid waste inspectors from the Minnesota
Pollution Control Agency (MPCA) and conservation offices from the Minnesota Department of Natural
Resources (MDNR) to issue citations for solid waste violations based on the following statutory penalty
schedule:
       « $25 per tire or battery.
       • $100 per used appliance.
       » $20 per cubic foot or $1 per pound of other solid waste.

       The maximum penalty for any category of waste is $2,000. See Attachment I, The evidence
supporting the citation as well as the penalty calculation is documented on the citation form. See
Attachment II. An administrative appeal is available if a person requests a hearing within 15 days
after receipt of the citation. Several issues were important in designing the program.

4.1    Civil versus a criminal process

       The program was established as a civil rather than criminal program for several reasons. First,
a criminal littering statute already existed in  the state which could be used in appropriate cases.
Second, a  civil enforcement approach  allowed more control over the use of the process by the
administrative agencies than a criminal  program. Rattier than relying on the interest and availability
of local prosecuting attorneys and judges,  the MPCA and MDNR could  manage the program and
allocate personnel based on their own priorities. In addition, the civil standard of proof (more probable
than not) made cases somewhat easier to prove.

4.2     Discretion

        Most enforcement tools rely on the discretion of a court or of an agency commissioner to set
penalties. The field citation program for the first time allowed field personnel to issue citations without
any significant management review. This led  to a concern expressed by  legislators with giving field
personnel too much discretion in setting penalties. To address this concern the statute authorizing
field citations included a penalty schedule that makes calculation quite simple.

4.3     Who issues citations

        The third issue was who  should be authorized  to issue  field  citations. The principle
environmental enforcement  agency in Minnesota,  the MPCA had few field personnel. Further, these
inspectors were not accustomed to confronting people in the way that issuing a field citation would
require. To  address these problems, Minnesota authorized conservation officers from the MDNR as
well as  MPCA solid waste inspectors to issue field citations. There are over 200 uniformed
conservation officers stationed in almost all parts of the state. Their normal duties include fish and
game enforcement which  frequently involves issuing tickets. Further,  MDNR was interested in
participating in the program because illegal disposal of waste often occurred on park land which is
under their jurisdiction.
        Because of their familiarity with ticketing  programs, the fact that they are licensed peace
officers and that they are located throughout the  state, the authorization of conservation officers to
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          403
issue field citations has been important to the success of the program. The majority of field citations
are written by conservation officers.

4.4    Training

       The state can choose among several civil and criminal enforcement options for dealing with
solid waste violations. However, the field citations  legislation  precludes  the  state from seeking
penalties under any other law once a field citation has been issued for an incident. As a result, training
of personnel authorized to issue citations was particularly important so  that citations would not be
issued in circumstances where a stronger enforcement tool should be used (for example,  where
hazardous wastes may be found among the solid waste). Sound training also helps minimize appeals
by ensuring violations are well documented. A one day training  program was presented for the
personnel who  issue citations.

4.5    Appeals

       The final issue in designing the program was the  nature of appeal rights that would be
provided to defendants. The state  had used an expedited  administrative hearing process for four
years to deal with appeals of administrative penalty orders.  This process was incorporated into the
field citations program. The law sets a short 15-day deadline for appeal, limits some time consuming
hearing procedures such as discovery and  prevents the administrative  law judge from altering the
amount of the penalty in most  cases.
 5     THE EXPERIENCE

       Measured by awareness of the program, number of citations issued and support for the
 program by MPCA and MDNR staff, the field citations program has proven to be a success. Most
 local governmental officials (sheriffs, county environmental officials, etc.) are aware of the program
 according to a survey conducted in 1993. This awareness is resulting in a growing number of referrals
 from local officials.
       About 100 citations were issued in fiscal year 1993, the program's first full year. This number
 is about equal to tfne number of criminal littering cases initiated by the state. However, the total number
 of enforcement actions has almost doubled as a result of the use of field citations. Citations have
 ranged from $10 to $2,475 and average $220. The average criminal fine for littering was $71. The
 total number of hours necessary to complete a field citation enforcement action averaged 9.4 hours
 compared to 15.4 hours for a criminal littering case (see Attachment III).
       Appeal rates have been very low averaging under five percent.  Most of the appeals have
 been resolved prior to hearing.  However, if a hearing is required, the cost to the state agencies for
 a hearing in Minnesota can be several thousand dollars.
 6      THE FUTURE

        The positive experience over the first three years with the pilot program has resulted in strong
 support for making the program permanent in,the 1994 legislative session. In addition, the MDNR
 has already obtained legislation giving the agency field citation authority for violations involving trading
 in endangered species.
        The field citations program may have further applications to  other environmental violations
 such as improper handling of chlorofluorocarbons, improper storage of very small quantities of
 hazardous waste, maintenance of underground storage tanks, excess noise levels and certain minor
 illegal waste wateir discharges. Whether field citations could be a useful enforcement tool in these
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404                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
and similar situations depends upon an assessment of how easily it is to identify the violations, the
level of penalties that may be appropriate, the ability to provide sufficient training to field personnel,
the risk of precluding more serious enforcement actions and whether enforcement personnel who
have experience in issuing other types of citations can be used to enforce the law.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         405
       ATTACHMENT 1
          Chapter 347

   ARTICLE I.  Civil Enforcement

          Sec. 1i.  [FIELD CITATION PILOT PROJECT]

          Subdivision 1. [Authority to Issue,] Pollution control agency staff designated by the
   commissioner and department of natural resources conservation officers may issue citations
   to a person  who disposes of solid waste as defined in Minnesota Statutes, section 116.06,
   subdivision 10, at a location not authorized by law for the disposal of solid waste without
   permission of the owner of the property. A citation issued under this subdivision must include
   a requirement that the person cited remove and dispose or otherwise manage the waste.

          Subd. !J. [Penalty amount.] The citation must impose the following penalty amounts;
   (1) $100 per major appliance, as defined in Minnesota Statutes, section 115A.03, subdivision
   17A, up to a maximum of $2,000; (2) $25 per waste tire, as defined in Minnesota Statutes,
   section 115A.90, subdivision 11, unless utilized in an agricultural pursuit, up to a maximum of
   $2,000; (3) $25 per lead acid battery governed by Minnesota Statutes, section 115A.915, up
   to a maximum of $2,000; (4) $1 per pound of other solid waste or $20 per cubic foot up to a
   maximum of $2,000; and (5) up to $200 for any amount of waste that escapes from a vehicle
   used for the transportation of solid waste if, after receiving actual notice that waste has escaped
   the vehicle, the person or company transporting the waste fails to collect the waste.

          Subd.  3. [Appeals.] Citations  may be appealed under the procedures in Minnesota
   Statutes, section 116.072, subdivision 6, if the person requests a hearing by notifying the
   commissioner within 15 days after receipt of the citation. If a hearing is not requested within
   the 15-day period, the citation becomes a final order not subject to further review.

          Subd.  4.  [Enforcement of field citations.] Field  citations may be enforced under
   Minnesota Statutes, section 116.072, subdivisions 9 and 10.

          Subd,  5,  [Cumulative remedy.] The authority of conservation officers to issue field
   citations is in addition to other remedies available under statutory or common law, except that
   the state may not seek penalties under any other provision of law for the incident subject to
   the citation.

          Subd. 6.  [Study of field citation pilot program.] The  pollution control agency, in
   consultation wilh the department of natural  resources and the attorney general, shall prepare
   a study on the effectiveness and limitations of the field citation pilot program. The study must
   make recommendations about the continued use of field citations.

          The study must be submitted to the legislative commission on waste management by
   November 15,  1992, and must be updated and resubmitted to the commission by November
   15,1993.
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406
                    THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
        ATTACHMENT 2
                                                                     Minnesota Pollution Control Agency
       DEPA8TMENT Of NATURAl RISOURCIS                           -«-»JC
                   NOTICE OF SOLID WASTE DISPOSAL VIOLATION,
                    CIVIL CITATION, AND IMPOSITION OF PENALTY
                                                                          ..  004
                                                   DAY OF WEEK       ACTMCOOt
   LOCATION OESCBI=nON
   VEHICU  Y6W
                                       IS
   This civil citation is being issued to you in lieu of criminal charges for unlawful disposal of solid waste on public
   property or on private property without the permission of the owner. You are hereby directed to remit within 30 days
   the following amount for this unlawful disposal of solid waste:
   1.
   2.
   3.
   4.
   5.
Major Appliances
Waste Tires
Lead Acid Battery
(Number) x $100,00 each = $
(Number) x $ 25.00 each = $
(Number) x $ 25,00 each = $
Other Solid Waste (either pounds or cubic feet, or combination):
                    (Pounds)    x  $ 1.00 per pound  =$
                    (Cubic Feet) x  $20,00 per cubic ft =$
Solid materials (waste) that
has escaped from a vehicle.
                                   | NOTtCCMTI/IIME
                                   TOTAL OF THIS CITATION
   I hereby MknowMga racaipt of tt*i notk» wid order of Chi Citation md Penalty.
(Maximum £2,000.00)
(Maximum $2,000.00)
(Maximum $2,000.00)

(Maximum $2,000.00)
(Maximum $2,000.00)

(Maximum $ 200.00)
wotATOirs SIGNATURE
OB «: ws sowwiae
AGENCY
&MX2CS
STATION*
   Payment of the amount specified must be sent within 30 days to:   Commissioner MN PCA
                                                        Solid Waste Section
                                                        520 Lafayette Road
                                                        St. Paul, MN 55155-3898
   Appeals to this citation must be made in writing wtthin 15 days after Issue in accordance with previsions
   outlined on the back of thta notice. This citation becomes final and is not subject to further review after 15
   days from the date of fssuo. SEE BACK OF THIS FORM FOR SPECIFIC APPEAL PROCEDURES.
   INFORMATION REGARDING THE REMOVAL NOTICE AND APPEAL PROVISIONS IS ALSO PRINTED ON THE
   BACK OF NOTICE.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                            407
 ATTACHMENT 2 (continued)
                                           APPEALS OP CIVIL CITATIONS:
                      Citations may be appealed under the procedures in Minnesota Statutes, Section
                      116.072, Subdivision 6, if tho person requests a hearing by notifying the Commissioner
                      of the Pollution Control Agency within 15 days after receipt of the citation. If a hearing is
                      not requested within the IS day period, the citation becomes a final order not subject to
                      further review. Appeals may be filed at the address provided for payment of the penalty.
                                                NOTICE TO REMOVE:

                      You are required under Minnesota law to remove any solid waste that has been
                      disposed of in an unperm'rtted location. Failure to remove unlawfully placed solid waste
                      within 30 days as cited on the Notica of Solid Wasto Disposal Violation. Civil Citation.
                      and Imposition of Penalty may result in additional legal actions, including penalties,
                      under Minnesota law.
           Narrative Rnport
   —
L _ I
                                                                                 A Separate Report Exists
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408
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       ATTACHMENTS
FIELD CITATION PILOT PROJECT — Summary of Citations Issued (as of October 30, 1993)

General
Citations issued
Penalty assessed
Disposition
Numbers paid
Amount paid*
Numbers appealed
Penalty appealed
Numbers heard
Penalty upheld**
Number pending
Penalty pending
Numbers settled
Dollars settled**
Numbers outstanding
Dollars outstanding
FY1992

53
$7,978

42
$5,665
1
$83




1
($83)
10
$2,230
FY1993

91
$27,225

56
$8,800
12
$13,235
3
$2,500
($500)
1
$2,000
8
$2,750
($5,485)
23
$7,090
FY1994

10
$2,467

7
$512
0







3
$1,955
 * Includes community service accepted in lieu of penalty,
 ** Figure without parenthesis indicates penalty amount remaining due or paid, dollar figure inside parenthesis
 indicates penalty amount forgiven.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        409


FIELD CITATIONS: A TOOL FOR ENFORCING UST REGULATIONS
IN NEW MEXICO

SUTTON-MENDO», SHELDA A

Manager, Prevention/Inspection Section, Underground Storage Tank Bureau, New Mexico
Environment Department, RO. Box 26110, Santa Fe, New Mexico 87502 USA


       SUMMARY

       New Mexico has implemented a  statewide  field citation program for enforcement of the
Underground Storage Tank (UST) Regulations, This program has increased compliance rates from
14% to 82%, This streamlined field enforcement has substantially increased the agency's efficiency
in responding to UST violations and brought the UST owners and operators into compliance with the
Regulations.


1      INTRODUCTION

       The success of any regulatory  program is largely dependant on the ability of the regulatory
officials to both encourage  voluntary  compliance with the  regulations and to bring violators into
compliance without  investing the majority of the program's resources. Underground Storage  Tank
(UST) regulatory authorities face enormous challenges as they respond  to violations of  UST
Regulations, Enforcing UST Regulations can "put considerable strain on staff time and agency
resources, due to the large size of the  regulated community. Traditional enforcement procedures are
often too time consuming and resource-intensive.
       An alternative to traditional enforcement is an inspector-issued field citation for clear-cut UST
violations. Field citations are similar to traffic tickets:  the citations, issued in the  field, address a
clear-cut violation, require the violator to correct the  violation, carry a small penalty, and provide for
some type  of appeal. New  Mexico has  developed such  a field  citation program for expediting
enforcement of UST Regulations.
 2     DEVELOPMENT OF FIELD CITATION PROGRAM IN NEW MEXICO

       The New Mexico Underground Storage, Tank Program is administered by the Underground
 Storage Tank Bureau, New Mexico Environment Department (NMED). The Underground Storage Tank
 Regulations were promulgated by the Environmental Improvement Board pursuant to the New Mexico
 Hazardous Waste Act, subsection 74-4-1 et seg NMSA 1978. The release detection, new tank and
 upgrade requirements track precisely with the federal UST  Regulations. In September 1990  the
 Prevention/Inspection Section, Underground Storage Tank Bureau implemented a program to conduct
 inspections at UST facilities to determine compliance with the release detection requirements. The
 program utilized 13 field inspectors in 9 locations throughout the state. The highest priority of the
 Section was to conduct release detection compliance inspections at facilities with tanks installed prior
 to 1965 or age unknown located in areas where the depth to ground water is less than 100 feet. If
 the inspector noted a violation during his inspection he wrote a letter to the owner/operator informing
 him of the violation and seeking compliance with the Regulations. For serious violations a Notice of
 Violation was issued by the  Bureau Chief. If an owner/operator fails to comply with the Notice of
 Violation, a Compliance Order may be issued which might include a civil penalty of $10,000 per tank
 per day of noncompliance or the Bureau may commence a civil action in state district court. However,
 the Bureau had very little success with this  program and it was very lengthy and time consuming. In
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410                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
addition, enforcement actions involved an attorney which was very costly. Consequently, the Bureau
sought to develop an effective enforcement program that would be more efficient, more timely, and
less costly,
       February 1,  1991,  New  Mexico implemented  the  first statewide field citation program to
enhance compliance with the UST Regulations, this program addresses clear-cut LIST violations;
specifically operation and maintenance, record keeping and release detection. Release reporting and
remediation are not  covered by the field citation program.
       At the time ttie citation program was  developed, the priority of the Section was to conduct
release detection compliance inspections at facilities with  UST systems installed prior to 1970 and
located in areas where depfri to groundwater is less than 100 feet If the inspector detects a violation
of USTR while conducting these inspections,  a field Notice of Violation or citation (see Figure 1) is
immediately issued to the owner/operator of the UST system, pursuant to subsection 74-4-10 NMSA
1978. A prelitigation settlement penalty is assessed at the time of the  inspection or sent by certified
mail immediately following the  inspection. Most violations carry  a $100.00 per violation penalty.
Violations concerning proper tank closure or change in service carry a $500,00 penalty. (See Figure
2 for list of violations ancl penalties.) The owner/operator must pay the penalty, correct the violation
and certify compliance within 30 days of the  receipt of the citation (Figure 3). If the violation is not
corrected and/or the penalty is not paid within 30  calendar days of the citation, the NMED  may
exercise its prosecutional discretion to issue an  administrative compliance order, pursuant to
subsection 74-4-12  NMSA 1978, or commence a civil action in state district court against the
owner/operator. A Compliance Order may include a  civil penalty not to exceed $10,000 per tank per
day of noncompliance. Failure to comply with the Compliance Order  may result  in the assessment
of civil penalties not to exceed $25,000 per tank per day of noncompliance with the order.


3       RESULTS

        From September 1990 to January 31, 1991  field inspectors conducted  433 compliance
inspections at UST facilities. The inspectors issued 86 violation letters and 12 of these  or  14%
complied (Table  1).

       Table 1.  Inspection Data Prior to Field Citation

       Number of compliance inspections, September 1990 - January 31,1991        433          —
       Number of violation letters issued, August  1990 - January 31,1991               86         20%
       Number of above violations corrected                                      12         14%


        Beginning Februaiy 1, 1991 the USTB initiated the field citation program. The  results of the
program are presented in "feble 2. From February 1,1991 to September 30,1993 the field inspectors
conducted 2113 inspections and issued 815 field Notices of Violation (citations). About  61% of the
facilities inspected were found to be in compliance while 39% were not Six hundred seventy or 82%
of the 815 non-compliant facilities corrected the violations and were in compliance with the USTR. A
total of 93% of facilities inspected are now in  compliance with USTR. As a result of failure to correct
violations and/or pay penalties, 23  matters have been referred to the Office of General Counsel for
commencing judicial action and seeking the statutory maximum penalty of $10,000 per day per tank
for each violation. Four of these matters has  been filed in  District Court for injunctive relief and civil
penalties: two were settled out of Court; the owners complied and paid a substantial penalty; two
are pending.
        In addition,  the Environment Department has  issued 17 Compliance Orders  to  owners/
operators. Two Compliance Orders have been settled. The remaining 15 are in the process of litigation
or settlement.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
411



.«<2S?* Undwgnund Storage IknkBuratu FIELD NOTICE
j/|3\% PREVENTION/INSPECTION SECTION •-•*.•-*«*»•»«-
1. JMMfllMiw
*"*"*"
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*"***"
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      IK*l«)»crtMtel«*«i««x«<9i«l»c«y«<)*»««.   	PMJ^licocrodftiinow.niMac*^

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  oistniBtmoft:   WHITE-USTB
                                             INFORMAL CONFERENCE
                              ir^i!iFilira^«ri|)i^
                                   >ilBniMleenl«<«ta'»«»»lliB»ROD-Owaiof
Figure 1,   Example of citation.
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412
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

LEVEL A
REGULATION
CITATION

801
LEVELS
REGULATION
CITATION

200
201
203

400
400
400
400
400
400
400
400
400
400
400
400
400
400
400
400
400

SHORT-FORM WORDING
Permanent Closure and Changes-in-Servlce
Failure to empty and dean UST system prior to permanent closure or
change-in-service.

SHORT-FORM WORDING
Notification Requirements
Failure to notify USTB of existing tank within three months after April
14, 1988.
Failure to notify USTB of change in ownership within thirty days.
Failure to notify thirty days prior to replacement or modification.
Performance Standards for New UST Systems
Failure to meet tank corrosion protection standards.
Improper construction of a fiberglass-reenforced plastic tank.
Failure to provide cathodic protection for a metal tank.
Improper construction of cathodic protection for a metal tank.
Improper maintenance of cathodic protection for a metal tank.
Improper construction of a steel fiberglass-reinforced plastic tank.
Failure to meet requirements for exemption from tank cathodic
protection.
Failure to meet piping corrosion protection standards.
Improper construction of fiberglass reinforced plastic piping.
Failure to provide cathodic protection for metal piping.
Improper construction of cathodic protection for metal piping.
Improper maintenance of cathodic protection for metal piping.
Failure to meet requirements for exemption from piping cathodic
protection.
Failure to install spill prevention system in a new tank.
Inadequate spill prevention equipment In a new tank.
Failure to install an overfill prevention system in a new tank
Inadequate overfill prevention equipment in a new tank.

PENALTY

$500

PENALTY

$100
$100
$100

$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
 Figure 1,  List of violations and penalties.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                      413

LEVEL B
REGULATION
CITATION
400
400
400

401
401
401
401
401
401
401
401
401
401

501
501
501
501

501
501
501
SHORT-FORM WORDING
Failure to Install tank in accordance with accepted codes and
standards.
Failure to install piping in accordance with accepted codes and
standards.
Failure to ensure that the installer has been certified by Department.
Upgrading of Existing UST Systems
(Upgrade deadline is December 22, 1998)
Failure to meet tank upgrade standards.
Failure to install interior lining for tank upgrade requirements.
Improper installation of interior lining for tank upgrade requirements.
Failure to meet interior lining inspection requirements for tank
upgrade.
Failure to meet tank upgrade requirements for cathodic protection.
Failure to ensure that tank is structural^ sound before installing
cathodic protection.
Failure to meet tightness test requirements for an upgraded tank.
Failure to install cathodic protection for metal piping upgrade
requirements.
Failure to provide spill prevention system.
Failure to provide overfill prevention system.
Operation and Maintenance of Corrosion Protection
Failure to operate corrosion protection system continuously.
Failure to properly maintain cathodic protection system.
Failure to ensure that cathodic protection system is tested within six
months of installation.
Failure to ensure that cathodic protection system is tested every three
years.
Failure to inspect cathodic protection system in accordance with
accepted codes.
Failure to inspect impressed current cathodic protection systems
every sixty days.
Failure to maintain records of cathodic protection inspections.
PENALTY
$100
$100
$100

$100
$100
$100
$100
$100
$100
$100
$100
$100
$100

$100
$100
$100
$100

$100
$100
$100
 502
Compatibility

Failure to ensure that UST system is made of or lined with materials
compatible with substance stored.
$100
 Figure 2.  List of violations and penalties (continued).
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414                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT

LEVEL B
REGULATION
CITATION

503
503
503
503

504
504
505

600
600
600
600
600
600
600
600

601
601
601
601
601
SHORT-FORM WORDING
Repairs Allowed
Failure to repair UST system in accordance with accepted codes and
standards.
Failure to ensure that a repaired UST system is tightness-tested within
thirty days of repair.
Failure to test cathodic protection system within six months of repair
of an UST system.
Failure to maintain records of each repair to an UST system.
Reporting and Record-keeping
Failure to maintain all required records.
Failure to provide records for inspection by Department.
Failure to notify twenty-four hours prior to critical juncture in
installation, replacement, repair, substantial modification, installation of
leak detection system and UST closure.
General Release Detection Requirements for All UST Systems
Failure to provide an adequate release detection method.
Release detection method incapable of detecting a release from any
portion of the tank or piping that routinely contains product.
Failure to install release detection method in accordance with
manufacturer's instructions.
Failure to calibrate release detection method in accordance with
manufacturer's instructions.
Failure to operate release detection method in accordance with
manufacturer's instructions.
Failure to maintain release detection method in accordance with
manufacturer's instructions.
Failure to comply with release detection requirements by specified
date.
Failure to dose tank that cannot apply a method of release detection
by spjjcified date.
Release Detection Requirements for Petroleum UST Systems
Failure to monitor UST system at least every thirty days.
Failure to use an UST monitoring method.
Inadequate UST release monitoring.
Failure' to use an underground piping monitoring method.
Inadequate underground piping release monitoring.
PENALTY

$100
$100
$100
$100

$100
$100
$100 .

$100
$100
$100
$100
$100
$100
$100
$100

$100
$100
$100
$100
$100
 Figure 2.  List of violations and penalties (continued).
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
415

LEVELS
REGULATION
CITATION

602
602
602
602
602
602

603
603
603
603
603
603
603

604
604
604
604

605
605
605
605
605
SHORT-FORM WORDING
Release Detection Requirements for Hazardous Substance UST
Systems
Failure to provide release detection for an existing hazardous
substance UST system.
Inadequate release detection for a new hazardous substance UST
system.
Inadequate secondary containment of tank for a new hazardous
substance UST system.
Inadequate double-walled tank for a new hazardous substance UST
system,
Inadequate external liners for a new hazardous substance UST
system.
Inadequate secondary containment of underground piping in a new
hazardous substance UST system.
Methods of Release Detection for Tanks
Inadequate operation or maintenance of inventory control.
Inadequate operation or maintenance of manual tank gauging.
Inadequate operation or maintenance of tank tightness testing.
Inadequate operation or maintenance of automatic tank gauging.
Inadequate operation or maintenance of vapor monitoring.
Inadequate operation or maintenance of ground-water monitoring.
Inadequate operation or maintenance of Interstitial monitoring.
Methods of Release Detection for Piping
Failure to provide release detection for underground piping.
Inadequate line leak detector system for underground piping.
Inadequate line tightness testing for underground piping.
Inadequate use of applicable UST release detection methods.
Release Detection Record Keeping
Failure to maintain records of release detection monitoring.
Failure to maintain records of all written release detection performance
claims for five years after installation.
Failure to maintain results of any sampling, testing, or monitoring for
release detection for at least one year.
Failure to retain results of tightness testing until next test is conducted.
Failure to maintain records of written documentation of maintenance,
and repair of release detection equipment.
PENALTY

$100
$100
$100
$100
$100
$100

$100
$100
$100
$100
$100
$100
$100

$100
$100
$100
$100

$100
$100
$100
$100
$100
 Figure 2. List of violations and penalties (continued).
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416
           THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
LEVELS
REGULATION
CITATION
                   SHORT-FORM WORDING
PENALTY
800

800

800

800
800

800


802


804

804


1404
Temporary Closure
Failure to continue operation and maintenance of corrosive protection        $100
system in a temporarily closed LIST system.
Failure: to continue operation and maintenance of release detection in        $100
a temporarily closed UST system.
Failure to comply with temporary closure requirements for an UST           $100
closed for three or more months.
Failure to leave vent lines open and functioning,                           $100
Failure to cap and secure all other appropriate equipment for               $100
temporary closure.
Failure to permanently close an UST system that Is temporarily closed       $100
for more than twelve months.
Assessing the Site at Closure or Change-ln-Servlce
Failure to measure for the presence of a release before a permanent        $100
closure or change-in-service.
Closure Records
Failure to maintain records of the results of the excavation zone             $100
assessment for at least three years after closure.
Failure to maintain records of the results of the assessment for at           $100
least three years after change-in-service.
Certification of Tank Installers General Requirements
Failure to be certified by Department to install and repair UST system.       $100
Figure 2.  List of violations and penalties (continued).
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                                                                 417
                    Emlronm tnt D«p»rtm«rti
        Hi pRIVENTIONrtNSPECTION SECTION
        '"  KweldRiinnMsBWg.— Rm-N-zuo
«V *3J£  11SOSLFr«ncJtOc-P.aBQxa«l10
 *Sf
                                                                    OWNER/OPERATOR
                                                              Certification of Compliance
      Reid Notice of Violation No.
                                                  Data
                                       FACILITY NAMES HUMB£H
                                       OWNER NAME ft NUMBER
      I CERTIFY UNDER PENALTY OF LAW THAT;

      1.  I am the     Downer    a operator  of the above-named facility.
         (Cheek a(l that apply.)

      Z.  The facility has corrected the violation(s) specified in the

         Field Notice Violation No -- _.

      3.  I have pereonally examined the documentation attached to this certification to establish that the
         violation(s) have been corrected.

      4.  Based on my examination of the attached documentation and inquiry of the individuals who pre-
         pared or obtained it, I believe that the information is true, accurate, and complete.

      5,  1 am authorized to file this certification on behalf of the facility.

      6.  I am aware that there are significant penalties for submitting false Information, including the pos-
         sibility of fine(s} and/or imprisonment for knowing violations.
     Dated:.
                                Signed:.
                                Print or Type Name:,

                                Title: ______
     Please send this completed form within thirty (30) days of the data of foe Field Notice of
     Violation to:
                                LIST Bureau
                                Prevention/Inspection Section
                                Harold Runnels BIdg. — Rm. N-2150
                                1190 SL Francfs Drive - P.O. Box 26110
                                Santa Fe. New Mexico 87502-5110
                 WHITE . UST3        PINK - USTB


Figure 3.  Example of certificate of compliance.
                                                    CANARY -Owmr
                                                                       GCH.OENHOO -
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418                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       Table 2.  Reid Citation Data, February 1 -September 30,1993

       Number of compliance inspections                         2113               —

       Number of facilities in compliance                         1298               61%

       Number of field Notices of Violation issued                    815               39%

       Number of informal conferences                             275               34%

       Number of field Notices of Violation corrected                  670               82%

       Total number of facilities in compliance                  1968               93%

       Total amount of penalties paid                                  $80,650.00
       The 815 field Notices of Violation were issued for 1793 violations of the UST Regulations. The
violations fall into three main categories: failure to register, failure to permanently close a UST system
that has been out of service for more than 12 months and failure to have required release detection.
Various other violations of the  Regulations were also cited.
       The highest compliance rate is obtained from citations for failure to register. This is because
it is relatively easy to register  a system and there is no expense  involved. The Bureau has a good
compliance rate  for release  detection violations. Once  owner/operators  were informed of the
regulatory requirements they complied. Also the petroleum  industry has communicated to
owner/operators that New Mexico is actively enforcing the  Regulations and assessing penalties for
noncompliance, Owner/operators are installing and maintaining release detection to avoid penalties.
The lowest compliance rate is  for violations regarding out of service USTs. These systems are usually
abandoned and it is difficult to convince an uncooperative owner that he must remove a UST system
at a site that has been out; of service for a long period of time and is no longer producing an income
for the owner.  Eighteen of the 23 cases referred  to the Office of General Counsel for further
enforcement action fall in this  category.
 4     SOLID WASTE PROGRAM IN NEW MEXICO

       The field citation has proven to be very effective  in New Mexico. Other Bureaus in the
 Environment Department are examining this enforcement tool. The Solid Waste Bureau has developed
 a field citation program and implementation is imminent,
       The Solid Waste field citation is similar to the UST field citation program. Solid Waste Bureau
 Field Compliance Officers have the authority to issue citations at the time of inspection. If the Field
 Compliance Officer detects a violation of the Solid Waste Regulations white conducting an inspection
 of a Solid Waste Facility, a compliance order ("citation") may be immediately issued to the owner or
 operator of the solid waste facility, pursuant to NMSA 1978, Section 74-9-36.
       A prelitigation penalty may be assessed at the time of the inspection or sent by certified mail
 immediately following the inspection. Upon receipt of the citation, the person named must 1)pay the
 penalty if any within 30 days, correct the violation and certify  compliance by the date agreed upon
 by the Field Compliance Officer and the person named, or 2) appeal the citation.
 S      CONCLUSIONS

        With traditional enforcement only 14% of the owner/operators cited complied with the USTR.
 This traditional enforcement program was too lengthy and cumbersome to be effective. The field citation
 program has been very successful for gaining compliance with USTR. By September 30,1993, 82%
 of the owner/operators cited complied with the Regulations for a total compliance rate of 93%.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         419
       The Bureau will continue to utilize expedited enforcement.  It should be noted that a field
citation program is not a replacement for formal enforcement, that it is a complement to existing
administrative, civil, and criminal authorities. The citation program enables the Bureau to address
more violations and to reallocate resources to new or more serious cases.  The procedures are
relatively easy for the inspector and the violator to use, and they require less  of both parties' time
than formal enforcement action. Thus, the program's enforcement resources are conserved for
contested or serious violators.
       The purpose of an inspection is both  education and enforcement. Inspections provide an
opportunity for the inspector to inform owner/operators of their legal requirements, and further explain
the release detection  regulations. By implementing an  inspection  program to effectively educate
owner/operators and enforce the Regulations, the UST Bureau has significantly increased compliance
with the  Regulations;  and thereby reduced the threats to New Mexico's environment posed by
petroleum products and hazardous substances released from underground storage tanks.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         421


UNITED STATES' CLEAN AIR ACT FIELD CITATION PROGRAM:
NEW ENFORCEMENT AUTHORITY TO ADDRESS MINOR VIOLATIONS

RASNiC, JOHN B,1 and ENGERT, JANE M.2

1 Director, Stationary Source Compliance Division, U.S. Environmental Protection Agency
2 Environmental Scientist, U.S. Environmental Protection Agency
401 M Street," SW (630-6W), Washington, DC 20460 USA
       SUMMARY

       An overview of a new enforcement tool currently being developed by the U.S. Environmental
Protection Agency to address and correct minor violations of the Clean Air Act is presented. Major
issues in the implementation of this program are highlighted, and a general summary of the program's
potential impact Is provided.
 1      INTRODUCTION

       In an effort to curb a growing threat to the nation's air quality, the U.S. Congress passed the
 Clean Air Act Amendments (CAAA) of 1990. The Amendments addressed three major areas of
 concern—acid rain, urban air pollution, and toxic air emissions—and also greatly strengthened the
 enforcement provisions of the Clean Air Act (the Act).
       Prior to the passage of the CAAA, the U.S. Environmental Protection Agency (EPA) enforced
 Clean Air Act provisions largely through civil or criminal judicial enforcement actions, and through a
 very limited administrative penalty program for highly specific cases. These enforcement mechanisms
 limited the range of violations that could be pursued because of the extensive resources required.
 The 1990 Amendments, however, expanded EPA's enforcement options by authorizing EPA to issue
 administrative penalty orders of up to $200,000 and to issue field citations assessing  administrative
 penalties of up to $5,000 per violation for less serious infractions. Field Citations are notices of violation
 that assess  penalties for minor violations  in a manner similar to that of traffic tickets.  Field citations
 may be issued either on-site following an inspection or from an EPA office, and which assess penalties
 of up to  $5,000 for each violation.
       These new enforcement tools will enhance the Agency's ability to enforce the Act by enabling
 EPA officials to address violations that previously may have been viewed as too minor  to warrant
 attention. Where appropriate, EPA will now be able to respond quickly to a violation  by  issuing an
 administrative penalty order or  a field citation, rather than commencing a civil judicial enforcement
 action for penalties. While civil and criminal judicial enforcement actions will remain an important
 component of EPA's enforcement program, EPA's new administrative authorities enable it to effectively
 pursue a broader range of violations without the expenditure of resources associated with judicial
 action.
       An important part of the Agency's recently-granted authority for the administrative assessment
 of civil penalties is the authority to issue field citations, found in Section 113(d)(3) of the  Act (42 U.S.C.
 7413]. This section authorizes  EPA to implement  a Federal program through regulations which
 establish appropriate minor violations and  informal  hearing procedures. Field  citations  assessing
 penalties of up to $5,000 per day of violation may be issued by EPA officers or employees.
       Section 113(d)(3) of the Act  also provides that any person to whom a field citation is issued
 may elect either to pay the proposed penalty or to request a hearing in accordance with procedures
 specified in  the regulations. It further provides that the penalty assessed in the field citation becomes
 final if a  request for a hearing is not made within the time specified  in the implementing regulations.
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422                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Any person against whom a cMI penalty is assessed under the field citation program also has the
option to seek review in the appropriate district court.
       It is important to note thtf the statute passed by Congress and signed by the President merely
confers authority—it does not establish a field citations program. Rather, in order to take advantage
of this new authority and to actually issue field citations, EPA is required to develop implementing
regulations consistent with the statute. In keeping with this requirement, EPA is currently developing
the regulations necessary to make use of this new Clean Air Act authority.
       The  Agency's  regulatory  development process is  normally  a team effort  involving
representatives from EPA Regions and a number of Agency offices. These representatives make up
the regulatory workgroup 'which  is responsible for the actual drafting of the rule. Although  the States
and the  public are sometimes  consulted on an informal basis during this drafting,  their input is
normally sought only during the formal public comment period. For this particular rulemaking, however,
the statute requires that EPA consult with the Attorney General of the U.S. and the States prior to the
public comment period. Consequently, the Department of Justice and State and local agencies and
have  been actively represented at workgroup meetings. In addition, a special sub-workgroup was
convened to address the particular concerns of State and local  agencies.
       The field citation regulation  (40 CFR Part 59, currently under development), will enable EPA
officers or employees to issue field citations either on-the-spot during a site inspection, or from the
office. The provision for office issuance of citations will enable  EPA to address reporting violations
which are normally detected only in the office where the report is delivered. Even where  a violation
is discovered in the field, the inspector has the option (and would be encouraged) to return to the
office for clarification if there is any doubt regarding the nature of the violation or the appropriate
penalty amount.


2     ISSUES IN DESIGNING A FIELD CITATION PROGRAM

       Several major issues arose during the development of regulations to implement and design
the program.

2.1    Definition of the minor violations subject to field citations

       As noted previously,  it  was  Congress'  intent  that field citations supplement our existing
enforcement tools and  be issued only for  minor violations. The Clean Air Act specifically directs EPA
to develop regulations which establish minor violations appropriate for the issuance of field citations.
The Agency considered several options for defining minor violations.

2.1-1   Comprehensive lists

       One option was to include in the rule a comprehensive  list of all possible violations suitable
for field  citations.  This option was rejected  as  impractical and of  limited  utility, since almost any
violation could be considered minor, depending on the circumstances. For example, failure to submit
a semiannual report of excess emissions might be considered minor if it is only a few weeks late and
the source has no prior history of enforcement actions. However, that same violation might alternatively
be deemed significant if the  owners  or operators have repeatedly failed to submit reports or  if the
source is the subject of an ongoing EPA or State investigation.

2.1,2  Categories of requirements

       A second option defined minor violations by limiting the program to particular categories of
regulatory requirements (e.g., recordkeeping, reporting, labeling, monitoring, workpractice standards,
etc.). This option, however, was rejected for the same reason as the first—namely, that any violation
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         423


within these broad categories (and even violations outside such categories) could be considered
minor, depending on the circumstances.

2.1.3  Factors approach

       Given the importance of specific circumstances in characterizing a violation as minor, EPA
selected a third option that defines minor violations based on a list of factors to be considered as a
whole. The list includes such factors as whether the violation is readily recognizable; the time, effort,
and expense required to correct the violation; frequency and duration of the violation; and importance
of the violated requirement to the  regulatory program.
       Typically,  a minor violation will involve  a clear and straightforward infraction that is
uncomplicated both  factually and legally, and  is of limited  frequency or duration and limited
environmental impact. Minor violations may include such items as improper labeling; failure to record
each control device operating parameter during the compliance period; failure to submit a required
notification or report on schedule; or inadequate maintenance of a workpractice standard.  Once
again, the particular circumstances surrounding the violation would determine whether it should be
pursued as minor.
       EPA believes that this broad approach to defining minor violations will provide the flexibility
necessary for an enforcement program designed to address a wide variety of factual circumstances.
This flexibility will be balanced  by detailed guidance and training to limit inspector discretion and
promote national consistency.

2.2    Hearing procedures: Dispute resolution

       Any person to whom a field citation is issued has the right to  request a hearing, and the
statute requires EPA to develop appropriate hearing procedures. Congress clearly believed that due
process rights would be met through informal, expedited hearings, and therefore, did not require that
field citation hearings conform to the requirements of the Administrative Procedure Act (APA), 5 U.S.C.
§§ 554 or 556. The APA provides a formal and extensive adjudicatory process for more  complex
cases;  however,  the  field citation program was  specifically exempted from these  requirements.
Instead/the statute specifies only that field citation hearings provide a reasonable opportunity to be
heard and to present evidence.
        EPA's objective was to provide the most streamlined, straightforward procedures that would
satisfy due process requirements  for fairness and meet the intent of Congress. A number of options
were discussed, each of which had both strengths and drawbacks when applied to the field citation
program. In addition, concerns were  raised regarding Agency familiarity and experience with the
procedures, relative ease  of use,  and the need for consistency with other similar Agency programs.
After protracted discussions, the Agency was unable to strike a balance on these competing concerns,
and ultimately decided to  propose for comment three distinct alternatives that all would establish fair
and reasonable procedures to govern hearings on field citations. These alternatives are: (1)  EPA's
consolidated, APA penalty assessment procedures under 40 CFR Part 22, with appropriate revisions;
(2) EPA's proposed consolidated, non-APA penalty assessment procedures under 40 CFR Part 28,
with appropriate revisions; and (3) new, streamlined administrative procedures developed specifically
for the field citation program.

2.2.1   Rely upon existing administrative penalty procedures

        Under the first Agency proposal, administrative hearings on field citations would be conducted
pursuant to the procedures established  by EPA's consolidated  APA rules of practice for the
administrative  assessment of civil penalties, 40 CFR Part 22. This is the most formal of the  three
options  proposed,  more closely resembling a civil judicial trial. An  Administrative Law Judge  (ALJ)
presides, and the Agency has the burden of proving the violation.
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424                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Using Part 22 to govern hearings on field citations would consolidate all of the Clean Air Act
administrative penalty hearings under one set of procedures. Additionally, the Agency has used Part
22  for  assessing administrative  penalties  under other environmental  statutes  since  1980.
Consequently,  both the regulated community and the Agency have considerable experience with
these procedures, thereby simplifying the implementation of the field citation program. On the other
hand, these procedures may be more complex than is necessary, considering the small penalty
amounts involved, and the fact that the statute specifically exempts this program from any requirement
to follow such formal procedures,

2.2.2  Rely upon existing streamlined procedures for administrative penalties

       Under the second option considered and proposed by the Agency, hearings on field citations
would be conducted pursuant to the procedures in EPA's proposed non-APA consolidated rules of
practice for the administrative assessment of penalties, 40 CFR  Part 28.  The major differences
between Part  28 and  Part 22  are that Part 28 provides for  a  Presiding  Officer instead of an
Administrative  Law Judge; imposes page limits on written submissions; and eliminates the right to
appeal the decision of the Presiding Officer to the Administrator. As with the Part 22 option, appropriate
amendments would be needed to make these procedures applicable to field citations,
       Part 28 was  proposed  to  consolidate and harmonize certain EPA procedural  rules and
guidance for the administrative assessment of civil penalties under various statutes where Congress
gave EPA authority to conduct non-APA hearings. The basic hearing requirements for the field citation
program are similar in  structure to those  programs proposed for  inclusion  under 40 CFR Part  28.
Moreover, adding the field citation program to Part 28 would promote a greater potential for non-APA
multimedia enforcement actions by providing a common administrative forum. The downside is that
if Part 28 procedures were adopted for field citations, two separate procedures for the administrative
assessment of civil penalties under the CAA would be required — Parts 28 and 22. Another concern
is that Part 28 procedures govern a wide range of statutory provisions,  involving civil penalties of up
to $25,000 per violation. This contrasts with the field citation program where penalties  would  not
exceed $5,000 per violation. Here again, there is concern that perhaps these procedures are more
formal than is required for the field citation program. In addition, these procedures have not been
promulgated as final regulations; consequently, EPA and the regulated community have little familiarity
or experience with their implementation.

2.2.3  New procedures

       The third Agency proposal is to develop new procedures that are better suited to the field
citation program than either the Part 22 or proposed Part 28 procedures. These new procedures,
included as a sub-part under the Part 59 regulation, are more streamlined and informal, allowing the
Presiding Officer broad discretion to limit  the number of witnesses  and the length  of  written
submissions;  to determine the appropriate form of testimony;  and to schedule a  prehearing
conference at his or her option. In addition, the respondent is allowed to submit written arguments
and evidence in lieu of requesting a hearing. This provision further streamlines the process by allowing
the Presiding Officer to make a determination on the administrative record without the delays inherent
in conducting a prehearing conference, information exchange, and hearing.
       The Agency believes the proposed Part 59 procedures implement Congressional intent for
the  field citation program,  while satisfying procedural due process concerns. The value of these
procedures is that they are simple, straightforward, and will lead quickly to a final decision. Quick
resolution is important not only for the resources saved,  but also because the deterrence effect from
this program will come in large part from the issuance of a citation immediately upon, or shortly after,
detection of a violation, and where final resolution is accomplished shortly thereafter. Any additional
procedures run the risk of significantly increasing the administrative burden and length of field citation
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         425


proceedings. This could make the program highly inefficient and a drain on government resources,
given the small potential penalties and the limited environmental risks posed by minor violations.
       Following the public comment period, one of the proposed options described above will be
selected for the final rule. While much attention has been placed on developing appropriate hearing
procedures, it is E:PA's expectation that, in the great majority of cases, the issuance of a field citation
will lead to a quick correction of a clear violation and payment of the assessed penalty, and that there
will be no need to pursue the violation further.

2,3    Maximum penalty and cap

       The fat requires that civil penalties assessed in a field citation not exceed $5,000 per day of
violation. Consistent with the Act's legislative history and the Agency's longstanding interpretation of
"per day of violation," this provision is being interpreted to mean that the maximum $5,000 penalty
applies to each separate violation cited in the field citation. The regulated community, however, has
argued that the "per  violation" interpretation leaves open the  potential for extremely high penalty
assessments, and establishes  no clear boundaries on the scope of the  program. Moreover, they
believe that if Congress had intended such high penalty amounts, the  field citation program would
have been subject to formal APA hearing procedures (as required under the administrative penalty
program) to ensure that adequate due process rights are met.
       In response to these concerns, the Agency is proposing a ceiling or "cap" on the total penalty
that may  be assessed  for multiple violations cited in  a  single field citation.  The proposal seeks
comment on a cap in the range of $15,000 to $25,000. This cap will serve to limit the scope of the
program, and give the regulated community a clear indication of the maximum  penalty assessments
that can be expected. Regardless of the dollar amount that is ultimately selected for the penalty cap,
it is the Agency's; position that large numbers of  minor violations are  indicative of a more serious
underlying compliance problem, and therefore, would not be appropriate for  the issuance of field
citations.

2.4    State delegation

       Except for a few non-delegated standards, the majority of Federal  air quality regulations are
implemented and enforced by the States. Since  the bulk of inspections are  carried out by State
agencies and the States assume the lead in enforcement actions, they believe that they should be
delegated the field citation program as well. White we agree that it would be valuable for the States
to have this authority, it is the Agency's position  that Congress,  by statute, explicitly reserved the
authority to issue field citations for EPA personnel only. Nonetheless, the Agency recognizes that close
cooperation with State and local agencies is essential to the success  of the program. The Integral
involvement of States will prevent duplication of effort and ensure that  field citations are not issued
where there is already an ongoing State enforcement  action.  In addition, information supplied by
State and local agencies may be used as the basis for issuing field citations, so it is important that
EPA inspectors effectively coordinate with their State and  local counterparts.
       To this end, a workgroup of State and local agency representatives was convened to discuss
implementation  of the program. This workgroup  will also be  involved In the development of the
accompanying  guidance document and inspector training  materials. Although State and  local
agencies may not be delegated the authority to Issue Federal field citations, this rule could serve as
an example that might later be replicated  in local jurisdictions.

2.5   Program implementation guidance

       Other programs within the Agency have used their administrative order and penalty authority
in a similar fashion and issued what are referred to as "field citations." For example, the Office of
Underground Storage Tanks (OUST) has a similar program whereby field citations  are issued on-site
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426                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
by inspectors for prevalent, clear-cut violations that are relatively easy to correct. The OUST program,
however, differs substantially from the air field citation program in that the OUST citations are actually
short-term settlement agreements; they do not necessarily carry penalties; and they are not subject
to standard hearing procedures.  Despite these differences, there are many areas in which the air
field citation program can benefit from the experience of OUST and we will rely on this experience
as we prepare to implement our own program.
       To accomplish the  goals  of the  air enforcement field citation program, EPA plans to issue
guidance addressing a wide variety of implementation issues. This guidance will cover such broad
areas as coordination  of inspections with State  and local agencies; desk issuance versus field
issuance of citations; determination of whether a violation is truly minor; and procedures for calculating
appropriate penalty amounts. The guidance will also address such issues as how to revoke a field
citation, and how field citations will be recorded and tracked. In addition, a comprehensive training
program for inspectors will be provided to ensure consistency in the implementation of this new
enforcement authority.

2.6    Regulatory schedule

       This regulation has been approved by the U.S. Office of Management and Budget, and is
expected to be proposed in the Federal Register in March 1994.  Promulgation  is expected in March
1995, at which time the accompanying guidance will also be issued.
3     CONCLUSION

       The field citation program is only one enforcement tool in EPA's broad range of options to
maximize compliance with the Clean Air Act Field citations are intended specifically to address minor
compliance problems that have  previously been neglected due  to limited Agency resources. The
opportunity for streamlined, expedited enforcement to address minor violations should save Agency
resources, reduce court backlogs,  and send a  clear enforcement message to violators that even
minor violations will not be overlooked.  Moreover, this attention to smaller details is expected to result
in improved overall compliance rates, as sources will take greater care to ensure that all regulatory
requirements are being met In addition, by stressing the importance of even lesser requirements,
sources may be able to detect and correct problems earlier on, thereby reducing the chances that
.small problems will develop into significant violations.
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THIRD INTERNATION/O. CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                     427
                   SPECIAL TOPIC WORKSHOP
               CFC Control Program Enforcement:
               Implementing the Montreal Protocol

 1.  Enforcement of the CFC Regulations in the Netherlands, G.A.H. Tljink, F.H, Kesselaar	429
 2.  Stratospheric Ozone Protection in the United States Compliance and Enforcement
    Issues of Title VI of the Clean Air Act, J.8. flasn/c, C.R. Haas	437
See related papers from other International Workshop and Conference Proceedings.
 1.  Challenge of Enforcing the Montreal Protocol on Protection of Stratospheric ozone, John Seftz
    and Sally MitoH, Volume I, Utrecht, The Netherlands
 2.  The Enforcement of the State Policy of the CSFR on the Field of the Montreal Protocol, M.
    Kbfaste and Vf Rehacek (additional paper), Volume I, Budapest, Hungary
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428                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        429


ENFORCEMENT OF THE CFC REGULATIONS IN THE NETHERLANDS

TiJINK, G.A.H.1 arid KESSELAAR, F.H,2

1 Project leader, Enforcement CFC Order, Division Enforcement Environmental Legislation
2 Head, Division Enforcement Environmental Legislation

Inspectorate for trie Environment,  Ministry of Housing, Spatial Planning and the Environment, IPC
681, Postbus 30945,  2500 GX Den Haag, The Netherlands


       SUMMARY

       As a result of the Montreal protocol, the subsequent directives of the European Community,
the  Dutch policy objectives of the  National  Environmental  Poiicy Plan, and the ensuing
chlorofluorocarbon-actlon programme, the Order concerning substances depleting the ozone layer
was published on 5 November 1992.  In order to attain the reduction targets defined in the Resolution,
an enforcement organisation has been created.
       In April 15)91 this was started. After taking an inventory of the entire target group, selecting
enforcing  options, drawing up  the enforcement programme,  and setting up  the enforcement
organisation, the implementation of checking compliance of regulations was put into effect on 17
February 1993.
       During 1993 about 1,600 companies were visited. In general, compliance was found to be
unsatisfactory; companies held back and waited whether compliance would really be enforced.
       Although matters can be improved, nevertheless it can be stated that already a great deal
has been achieved in one year of enforcement.


1      INTRODUCTION

       On 5  November 1992 the Order concerning substances depleting  the  ozone layer (the
so-called CFC-Order) was published(l).
       This paper provides the historic background to the CFC-Order. Furthermore, it will be outlined
how the enforcement organisation in the Netherlands is set up to check compliance of the CFC-Order.
Specific problems and preliminary results of the enforcing activities in 1993 are presented.
       Considering  the size of the project and'the complexity of the problems, inevitably this paper
can be but a brief outline of the problems encountered and the results achieved. An attempt is made
to offer a hand to those who are planning to set up a similar organisation or who are already involved
in this by reporting the experiences acquired in the Netherlands,
 2     HISTORY

 2.1    International

       In the Montreal Protocol of 16 September 1987(2) concerning substances depleting the ozone
 layer (when CFCs are mentioned in the text, these are understood to mean all substances coming
 under the effect of the protocol),  it was decided by all participating countries to reduce considerably
 the production and use of ozone depleting substances or to eliminate these due to the effect of these
 substances on the  ozone layer and its attendant effects on mankind and environment as a result of
 the increased ultraviolet radiation.
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430                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Scientific research and results of atmospheric observations led to tightening the reduction
scheme in subsequent  meetings between the parties of the protocol  in London (1990) and
Copenhagen (1992), Table 1 shows the reduction agreements of the amended protocol (1992). The
agreements with regard to chlorofluorohydrocarbons (better known as HCFCs) are not discussed in
this paper.

Table 1.  Reduction Agreements in the Amended Protocol (1992)
Reference Year 1992
Chlorofluorocarbons (CFCs)
Halons
Other CFCs*
1 ,1 ,1 -trichtoroethane
Tetimchloracarbon
1986
1986
1989
1989
1989
0
0
0

0
1993 1994 1995 1996
Reduction Agreements (in percentage)
75
100
20 75
0 50
85
100

100
100
100
* CFCs included in the protocol revised in 1990.
2,2    European Community

       On 30 December 1992 a directive of the European Community (EC) (3) came out, in which
the European regulations for ozone depleting substances are adapted to the agreements made in
Copenhagen. In this directive the reduction scheme for the EC is laid down. With respect to halons
and 1,1,1-trichtoroethane, it  lays  down the  Copenhagen  agreements,  as to CFCs and
tetrachlorocarbon a tighter reduction scheme was decided upon (see table 2).

Table 2.  Reduction Scheme for the European Community
Reference Year 1991
Chlorofluorocarbons (CFCs)
Halons
Other CFCs*
1 ,1 ,1 -trichtoroethane
Tetracnloroearbon
1986
1986
1989
1989
1989
0
0
0

0
1992
Reduction
50

50
0
50
1994 1995 1996
Agreements (in percentage)
85
100
85
50
85
100

100

100



100

  CFCs included in the protocol revised in 1990.
 2.3    The Netherlands

       The international regulations (as laid down by the protocol as well as the EC) concerning the
 ozone layer depleting substances made the Netherlands include action point A,1  into the National
 Environmental Policy Plan in 1989:

       ".... Domestically, the aim will be elimination of the use and emission of completely
       halogenated CFCs in 1995 or soon after, assuming that substitute substances are
       available."^)
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         431


       Following this action point of the National Environmental Policy Plan, the government together
with industry formed the CFC commission, whose main task was to make a CFC action programme
in which agreements between various branches about reducing the production and use of CFCs and
other  ozone-depleting substances should be recorded.  On 21 June 1990 the CFC commission
launched the CFC action programme.
       These agreements have been laid down in the CFC-Order by which they have gained force
of law. In order to enforce compliance of the CFC-Order, the Inspectorate for the Environment has
created an enforcement organisation which has been operational since 17 February 1993.


3     ENFORCEMENT ORGANISATION

3.1    Introduction

       Enforcement of the CFC-Order is primarily the task of the Inspectorate for the Environment,
being a part of tho ministery of Housing, Spatial Planning and the Environment (VP.OM) because the
minister of VROM has been  appointed as competent authority for the implementation of the
CFC-Order.
       In  1991 the Inspectorate for the Environment decided to start  a project for the enforcement
of the CFC-Order in order to achieve the objectives set out in the National Environmental Policy Plan.
This meant a phased approach to be distinguished in the following phases:
       1  Inventory
       2  Options for enforcement
       3  Programme for enforcement
       4  Setting up the organisation for enforcement
       5  Enforcement
       6  Aftercare of the project

       Phase  1 started on 10 April 1991, and phase 5 will end on 31 December 1995. In the course
of 1994 a  decision will be taken on the details of phase 6. In the following paragraphs the procedures
and main  results of each phase are described.

3.2    Inventory

       From 10 April 1991 to August 1991 an inventory was taken of the total target group. By means
of interviews and branch investigations, it was examined per branch (read; fields of application) how
many  companies;  qualify for  checking and what are the  branch-specific  points  of interest for
enforcement.
       On the basis of the chain-approach of the enforcing of the CFC-Order, the companies within
these branches were further classified according to the company's function in the chain; a producer
has a different function from a user. This classification was of particular significance for gaining an
insight into the methods of checking companies with different functions; for example, a company visit
to a dealer in  chomical products  will be administrative in  character whereas a company visit to an
installer will be of a more technical nature, irrespective of the branch in which is operated.
       The classification of dealers in chemical products and the producers of CFCs according to
the different fields; of application proved to be artificial and is no longer used. In addition, the use of
CFCs in spray canisters is not discussed because in the  Netherlands its use has been reduced to
virtually nil.
       Following in table 3 is a brief description of the results of the inventory taking:
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        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Table 3.  Brief Report of the Results of the Inventory Taking
Target Group
Number of
Companies   Points of Interest for Enforcement
Production and trade    200
Refrigerating installers   1500
Users of refrigerating    200.000
installations
Users of solvents and
cleaning products
600
Installers/suppliers of     15
baton extinguishing gas
installations
 Users of halon
 extinguishing gas
 installations
270,000
 Suppliers of insulating    25
 materials
 Users of insulating
 materials
unknown
• Compliance of regulations with regard to import
• Obtaining customers' lists

• Only licensed installers are permitted to carry out refrigerating
 engineering.
• Is the installation work carried out according to the technical
 requirements?
• Administrative requirements

• Only a licensed installer is permitted to carry out checking and
 maintenance work
• Administrative requirements
• Leakage of installation

• Surface treatment equipment must comply with recovery
 requirements
- Administrative requirements
• Storage requirements

• Have new installation ben sold after 1-1-1993?
- Essential applications
- Waste disposal; halon bank

- Essential applications
- Waste disposal; halon bank


- Insulating materials have to be CFC-free from 1-1-1993
- Import end export limitations

- Random check at 50 building sites
- Checking via supplier
        Considering the large numbers of users of refrigerating installations and potential users of
 halon extinguishing gas installations, provinces and municipalities have already been requested in
 this phase to cooperate in the enforcing task by including the monitoring of the CFC-Order in their
 regular company inspections.
 3.3    Options for enforcement

        In this phase of the project, running from August 1991 to November 1991, an attempt was
 made to convert the data of the inventory taking to the necessary financial and personnel effort by
 specifying the enforcing tasks per target group. Ultimately, a high visit frequency and a maximum
 effort by provinces and  municipalities was chosen.
        Table 4 shows per branch the visit frequencies, the time required per visit (the so-called index
 numbers) expressed in man-days, subdivided according to the executing agency.
        On  the basis of the ensuing total effort, the financial budget for the implementation of the
 enforcing activities has been fixed at 5 million guilders. These costs are determined 90% by personnel
 costs. The  remainder has teen allocated to sampling and analysis of the samples, travelling costs,
 and peripheral equipment.
        Table 4 shows that the Inspectorate for the Environment has to supply yearly an effort of 2370
 man-days to be able to  carry out the aforesaid activities. In combination with the management of the
 project, it amounts to a total effort of 18 man-years to implement the enforcing task.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
433
Table 4.  Effort Required per Branch
Target Group
Production and trade
Refrigerating installers
Users of refrigerating
installations
Users of solvents and
cleaning products
Installers/suppliers of
halon extinguishing gas
installations
Users of halon
extinguishing gas
installations
Suppliers of insulating
materials
Users of insulating
materials
Number of
Companies
200
1500
200.000
600
15
270.000
25
50
Visit
Frequency
per Year
1
1/3
1/5 (average)
1/2
1
1/5 (average)
1
1
Index
Numbers
(in man-days)
2
3
0,1
1
3
0,1
3
1
Total Effort
per Year
400
1500
4000
300
45
5400
75
50
Executing
Agency*
IMH
IMH
Provinces and
municipalities
IMH
IMH
Provinces and
municipalities
IMH
IMH
* IMH is an abbreviation for the Inspectorate for the Environment

3.4     Programme for enforcement

        After the total necessary personnel capacity  had been calculated, a programme  for
implementation  in the years 1992-1995 was drawn  up from November 1991 to July  1992. This
programme outlines the organisation form, the required training, the work agreements with other
agencies, the necessary facilities, the information towards branches, and the judicial sequel. Following
are a few relevant results.

3.4.1   Organisation form

        An organisation form within the existing organisation of the Inspectorate for the Environment
was decided. The project team consists of three region teams, who carry out company visits and in
case of violations see to the follow-up, and the coordination centre, which has a facilitating and
managing role ami functions as a checkpoint for the provinces and municipalities.
 3.4.2   Work agresments with provinces and municipalities

        Via the coordinating organisations of provinces and municipalities, it has been agreed that
 these will include the monitoring of the CFC-Order in the execution of their regular tasks in order to
 restrict the extra effort to a minimum. The Inspectorate for the Environment will play a facilitating role
 and take over prosecution as soon as violations have been established. In addition, the Inspectorate
 for the Environment will publish an enforcement handbook describing the background to regulation
 for the benefit of enforcers of provinces and municipalities.
        Through the national coordination commission for the enforcing of environmental legislation
 (a collaboration bstween enforcing agencies involved in environmental legislation), the enforcing of
 the  CFC-Order has  been raised to  national  priority, which means that all associated enforcing
 agencies will pay extra attention to enforcing the  CFC-Order.
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3.4.3   Information towards branches

       The information towards companies in the various branches is supplied as much as possible
by the branch organisations. The ministry of VROM has published a brochure containing the most
relevant regulations and consequences for trade and industry.

3.4.4   Judicial follow-up

       Considering the short term within which the reduction of emission and use must be realised,
a stringent approach was chosen; after a brief information and warning phase in 1993, compliance
will be enforced with all available tools.

3.5    Setting up the organisation for enforcement

       From July 1992 until 17 February 1993, the organisation was given shape. Following are the
main activities and results;
       • Seventeen people were taken on. These people have all received an initial training.
       • The enforcement handbook describing the background to the regulations has been
         composed for the benefit of the enforcers of the provinces and the municipalities.
       • Drawing up  a detailed monitoring programme for the separate region teams and
         the coordination centre.
       • Setting up an information system for the purpose of the company visits.
       • Drawing up questionnaires for the purpose of the company visits.
       • Establishing the tasks and responsibilities of the project members.
       • Establishing a procedure for sampling and analysis method to be used. At present
         this is still in  the making.

3.6    Enforcement

       On 17 February 1993 the enforcement of the CFC-Order has  been started. It will continue
until 31 December 1995, Every year the results are reported  to the minister of VROM. At this moment
the annual report of 1993 is being drawn up.
       In addition, in  1993 an evaluation was made of the procedure and starting  points of the
preparation for the implementation of the project. The most important results up till now are as follows.

3.6.1   Compliance

       1,600 companies  in all have been visited, divided among the various branches. Generally,
compliance conduct of the companies was moderate to poor. This was caused in particular by the
expectant attitude of the  companies, A number of times it was Indicated that the  inspector's visit
would be awaited.
       There are, however, differences between the various branches. In the refrigerating branch
compliance of the administrative requirements of the CFC-Order proved to be very bad. With regard
to the leakproof quality of the installations, no unequivocal conclusions can be drawn due to the lack
of good administration.
       In the solvent and cleaning products branch, companies also failed to meet the administrative
requirements. Degreasing without  any form of  recovery appeared to take place in 15% of the
companies visited.
       The insulating  materials containing CFCs proved to be imported most of the time. In most
cases in which a violation was  established, a warning was given. The main  reason for this is that in
the majority of friese cases the violations were administrative in character, which could be fairly easily
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         435
rectified by the companies concerned. A warning means in this case that a company receives a
limited term to rec% the violation. Should a second inspection reveal that one does not satisfy the
requirements, criminal or administrative action is taken.
       In eight cases criminal action proved to be  necessary to rectify the violation.  This number
might increase because a great deal of re-checking has yet to be carried out. In three cases in which
the companies refused to cooperate with the inspection administrative action was taken,  These
proceedings are not yet completed.

3,6.2  Familiarity with the CFC-Order          ;

       First estimates seem to indicate that about 60% of the total target group has been informed
in some way or another about the CFC-Order. There are, however, great differences between the
various branches, A further data analysis has yet to  be carried out.

3.6,3  Monitoring programme

       The 1993 evaluation showed that the monitoring programme for the coming years has to be
set up differently. In 1994 clearly defined actions within a certain branch will take place and the Index
numbers for the company visits will be adjusted on the basis of the experiences gained in 1993.
       Furthermore,  a more  uniform approach for  correcting violations is advised. As a result a
procedure has be«n drawn up indicating which judicial followup should be carried out by the enforcing
officer in case of a violation,

3.6.4  Sampling and sampling analyses

       Sampling and sampling analysis  appear to be less simple than these were thought to be in
the preparatory phase of this project. It turned out that there were no standards, there was no
experience with sampling CFCs from installations under pressure, the analytical methods for the
determination of CFCs in insulating material were not quantitative, and  leaks in installations were
detected on the basis of grammes per year instead of parts  per milfion. The Government Institute for
Health and Environment is seeking a solution for these problems.

3.6.5  Jurisprudence

       As the regulations are relatively recent, there is as yet no jurisprudence. For that reason much
attention was paid in 1993 to the interpretation of the regulations. Within the ministry, standpoints
have been taken in  cases  in which the regulation was not unequivocal. A consequence of these
problems was that less decisive and efficient action was taken in case of violations.

3.7   Aftercare of the project

        In the initial planning of the project, it was assumed that after 1 January 1996 enforcement
would become much easier and that it could be limited to inspecting trade and production of CFCs.
 In the meantime, views have changed. After 1 January 1996 many enforcement activities will still be
necessary in other fields of application; for example, the use of  HCFCs will be limited considerably,
and companies in refrigerating branches will go on using hydrofluorocarbons (better known as HFCs),
which come under the CFC-Order but not under the effect of the protocol.
        In 1994 the Inspectorate for the Environment will decide which enforcement activities will be
carried out after 1996.
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436                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       CONCLUSIONS

       • The chosen approach of the enforcement of the CFC-Order in the Netherlands has
         led to implementation of the inspection task within a relatively short period of time.
       • Compliance of the CFC-Order in the Netherlands is still poor. In general, it can be
         stated that companies have held back; If inspection does not take  place, the
         company will not take action on its own initiative to comply with the CFC regulation.
       • Interpretation problems with regard to the CFC-Order and the related environmental
         legislation have provided many enforcement problems. These impeded a decisive
         and effective approach.
       REFERENCES

1. Besluit inzake stoffen die de ozonlaag aantas ten, Staatsblad 1992: p. 599 (only available in the
   Dutch language).

2. Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer, 2nd edition,
   Ozone Secretariat, October 1991.

3. Directive of the Council of the European Communities, 4 March 1991, Concerning Substances
   Depleting the Ozone Layer (594/91/EEG, PbEG L 67).

4, National Environmental  Policy Plan (Nationaal Milieubeleidsplan), Tweede Kamer, Vergaderjaar
   1988-1989, 21 137, nrs. 1-2, pp. 130-131.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        437


STRATOSPHERIC OZONE PROTECTION IN THE UNITED STATES
COMPLIANCE AND ENFORCEMENT ISSUES OF TITLE VI OF THE
CLEAN AIR ACT

RASNIC, JOHN B.1 and HAAS, CRAIG R.2

1 Director, Stationery Source Compliance Division, U.S. Environmental Protection Agency
2 Environmental Scientist, Stationary Source Compliance Division, U.S. Environmental Protection Agency
401 M Street, SW (630-6W), Washington, DC 20460 USA
       SUMMARY

       A general overview is given of the United States' efforts to comply with the Montreal Protocol
in the framework of the U.S. Clean Air Act. More in—depth analysis is given of compliance and
enforcement issues associated with various programs. Successes and difficulties are highlighted and
final conclusions are drawn.
 1      INTRODUCTION
                                 *
       The United States is committed to the goals of stratospheric ozone protection and to full
 implementation of the Montreal Protocol on Substances that Deplete the Ozone Layer. The obligations
 of the Protocol were formalized domestically with the United States Clean Air Act Amendments of
 1990, which were signed into law on November 15, 1990. Title VI of the Amendments, Stratospheric
 Ozone Protection, introduced far-reaching legislation regarding the production, importation, and use
 of ozone-depleting chemicals (ODC), and established other requirements regarding products that
 are made with ODCs and their chemical substitutes. In conjunction with this legislation, the United
 States Environmental  Protection Agency (EPA)  has promulgated regulations and implemented
 numerous_cprripjtance and.enjqrcernent programs. This_paper discussesjpnne_of the major issues
 of those program;;, including obstacles encountered in their development and the solutions we have
 found. This paper  also  serves to provide  an update to the overview of the United States'
 implementation of the Montreal Protocol which was given at the first International Conference on
 Environmental Enforcement.
       MAJOR PROVISIONS

       The following is a list of the major sections of Title VI and a brief explanation of their purposes:
       •  Phase-Out of Production and Consumption of Class I Substances, Section 604
          Section 604 mandates by statue a phase-out schedule of the production of class
          I substances. Class I substances are chlorofluorocarbons (CFC), halons, carbon
          tetrachloride and methyl chloroform. The  phase-out also establishes January 1,
          2002, as the production termination date for methyl chloroform and January 1,2000,
          as the termination date for all other class I substances. In addition, the phase-out
          requires EPA to promulgate regulations regarding  the consumption  of class  I
          substances.
       •  Accelerated Schedule, Section 606
          Section 606 gives EPA the authority to accelerate the phase-out schedule
          established by section  604 based on a scientific assessment that such an
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438                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         acceleration is necessary to protect human health and the environment and that
         suitable substitutes are available.
       * National Recycling and Emission Reduction Program, Section 608
         Section 608 makes it unlawful to intentionally release into the atmosphere ODCs
         used as refrigerants in appliances when servicing or disposing of the appliances.
         It also requires EPA to promulgate regulations that reduce the use and emission of
         ODCs to the lowest  achievable level  and that maximize their recapture and
         recycling. Finally, it requires regulations regarding the safe disposal of appliances
         that contain ODCs,
       • Servicing of Motor Vehicle Air Conditioners, Section 609
         Section 609 establishes requirements for the servicing of motor  vehicle air
         conditioners (MVAC). Examples of these requirements include the use of approved
         refrigerant recycling equipment and the certification of technicians that perform the
         service. Section 609 also restricts the sale of cans of refrigerant that contain less
         than 20 pounds to only certified technicians.
       • Nonessential Products Containing Chlorofluorcarbons, Section 610
         Section 610 identifies by statute certain products which contain class  I or class II
         substances and which are deemed to be nonessential. Class II substances are all
         hydrochlorofluorocarbons (HCFC). It also requires EPA to identify other products
         that are nonessential and to ban those products from sale or distribution.
       • Labeling, Section 611
         Section 611 requires warning labels to be placed on containers of class I or class
         II  substances and on products which  contain or are manufactured with  these
         substances.
       • Significant New Alternatives Policy Program, Section 612
         Section 612 requires EPA to evaluate alternatives to class I and class II  substances
         and to rule on their acceptability. In the case that EPA rules that an alternative is
         unacceptable, the Agency must prohibit its  use.


 3     COMPLIANCE AND ENFORCEMENT ISSUES

 3.1    Phase-out of production and consumption of Class i substances

       The  regulations implementing section 604 establish an allowance system for the production
 or importation of class I chemicals.  Producers and importers must hold allowances in order to produce
 or import class I substances. The number of allowances available in any given year is determined by
 the production ceiling imposed by the Montreal Protocol,  and allowances are apportioned among
 producers according to their level  of production during 1989, the base-line year.
       EPA's compliance program is composed of two principal parts: the monitoring of production
 and the monitoring of importation. Producers are required by the regulations to submit quarterly
 reports of their level of production, and EPA must then determine whether they have produced within
 their allowances, in monitoring imports, EPA relies upon data that the United States Customs Service
 provides on a monthly basis. These data are a summary of all imports into the United States of
 products that fall  under certain commodity codes.
       EPA has found that compliance has been good among the producers of class i substances.
 This can be attributed to several facts.  First,  the number of affected facilities  is  small, making
 compliance monitoring easy. Second, the producers  are large, sophisticated chemical  companies,
 all of whom participated in the legislative and regulatory development process. They were therefore
 aware of, and familiar with, the regulation from the day it became effective. Third, stratospheric ozone
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         439
depletion is a very well-known environmental issue. The general public is, on the whole, aware of the
problem and also of the cause. Public pressure has been an important factor in the policies of these
facilities, some of which have voluntarily gone beyond the requirements of the phase-out as a result
of public concerns.
       Conversely, compliance has been poorer among importers, for much the same reasons that
it has been good among producers. The number of importers is huge compared to the producers.
Education has been a difficult task, and the Agency still finds some companies that are unaware of
the regulations, in spite of intense efforts to educate  in a variety of forums. In addition, imports of
some products which contain class I substances are also subject to the import restrictions, not just
imports of the substances themselves. This can lead  to confusion as to what is actually subject to
the regulations.
       In  enforcement, EPA has not yet identified any violations among the producers themselves.
However, EPA has filed eleven cases against importers and settled eight of them, for total penalties
of $463,000. All cf these cases have been addressed through the administrative penalty process
which allows EPA to file the cases with Administrative Law Judges, rather than with the Department
of Justice. The advantage in this is that it allows the Agency to expedite the process. The entire case,
from start to finish, can be handled in-house, rather than involving another branch of the government.

3.2    National reicycling and emission reduction program

       The recycrng regulation establishes far-reaching requirements on the individuals who  service
air conditioning and refrigeration appliances. It also effects the  owners  of those appliances. At the
heart of the regulation is the prohibition against the knowing release of a class I or class II substance
during the servicing or disposal of appliances. This venting  prohibition, which was mandated by the
Clean Air Act, took effect on July 1,1992, even though the implementing regulations were still almost
a year away. The regulation itself imposes  a requirement that technicians servicing appliances be
certified by an EPA-approved organization; mandates that required servicing practices  be followed;
requires the use of certified recovery and recycling equipment  to minimize the loss of class I and
class I! refrigerants to the atmosphere; requires that leaks  in appliances be repaired; and restricts
the 8ale.gf.j^frjge;^itp_o^fied.^hnJ.cians.			
       It is premature to assess compliance rates in this program. The regulations are relatively new,
dating from May 1993, and not all of the requirements have yet  taken effect. Monitoring compliance
is difficult because of the diverse nature of the regulated community. The recycling regulation affects
all air  conditioning and refrigeration appliances, except for MVACs, regardless of their size. EPA
estimates that there are more than two hundred seventy million appliances regulated, requiring at
least twenty-two million service or disposal  jobs per year. In addition, this sector of industry is new
to being regulated. Given the nature of the industry and the newness  of the regulations, EPA has
initially focused on education and outreach efforts in order to ensure compliance. However, the Agency
does recognize the importance of establishing a traditional enforcement presence and is planning
on developing an inspection program coupled with enforcement actions to  address violations.
Anecdotal evidence suggests that compliance rates are  not  yet as  high as the  Agency would
eventually  like. However,  EPA expects that compliance will improve over  time as more businesses
become aware of the requirements.
        EPA to date has filed seven cases against violators, all  to address violations of the  venting
prohibition, either during service or disposal of appliances. A significant problem encountered in these
cases has been trie difficulty in establishing the violation. The venting prohibition applies only to the
knowing release of a class I or class II substance used as a refrigerant  during service and disposal
of appliances. Hence, EPA had to establish that a release had in fact occurred, that the  release
occurred during service or disposal, and that the release was knowing.  Credible eyewitnesses were
crucial in  filing these cases. Again, these cases were filed  only to address violations of the  venting
prohibition. Now that the regulations are becoming effective, EPA expects to shift Its focus from
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440                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
violations of the venting prohibition to violations of the regulatory requirements (e.g., the certification
requirements), which will be easier to establish.
       EPA has received some criticism for its enforcement of the recycling regulation, more so than
for the other  programs. The reasons for this are two-fold. First, the industry seems to have had
unrealistically high expectations  concerning EPA's enforcement presence  in the field. As the
regulations neared completion, a common question from the public or the press was, "How many
hundreds of inspectors will EPA be hiring?" Second, the industry expected enforcement numbers to
be much higher than they are. The fact that not all violations have resulted in enforcement action has
led some to the conclusion that there has been no enforcement at all. Again, these expectations can
be attributed  to the fact that this industry is new to being regulated.

3.3    Servicing of motor vehicle air conditioners

       The MVAC regulation is similar to the recycling regulation in that it governs the servicing of
air conditioners, but in this case it is restricted only to  MVACs. The large  size of the industry
(approximately one hundred twenty million MVACs in service) is, in part, offset by  its homogeneity,
MVACs do not differ nearly as much as the appliances regulated by section 608. Like the recycling
regulation,  the MVAC regulation establishes a technician certification program,  mandates the use of
certified recycling equipment, and imposes a sales restriction on the sale of small cans (less than
twenty pounds) of refrigerant suitable for use in MVACs.
       Compliance monitoring has been  straightforward  for this  regulation.  EPA has a team of
inspectors  in the field and has to date performed more than three thousand inspections. Again, the
fact that the regulated community is fairly homogeneous has greatly eased the burden of performing
inspections. Compliance has also been very good. EPA has found compliance rates of greater than
90 percent. A significant reason why compliance is so good in this area is that the regulations were
based in part on an already-existing voluntary program which had been established by the industry
several years earlier. EPA therefore found the job of educating the regulated community to be much
easier. Industry trade associations had already become well-established and had done a great deal
of education.
       The majority of enforcement cases in  the  MVAC  regulation  has been  brought against
individuals who sold small cans of refrigerant to purchasers who were not certified technicians. As
of August 1993, EPA had filed eighteen cases against violators of the small can sales restriction. Most
of these cases were filed as a group and generated a great deal of publicity. As a result, the industry
became much more aware of the requirement, and compliance rates increased greatly.

3.4     Nonessential products containing chlorofluorcarbons

        Section 610 bans the sale or distribution, or offer for sale or distribution of certain  products
that release  class I substances into the environment and that are nonessential. The Clean Air Act
identified plastic party streamers,  noise horns, and CFC-containing cleaning fluids for noncommercial
electronic  and photographic equipment as nonessential,  EPA also identified plastic flexible or
packaging foam  products and aerosol products or other  pressurized dispensers as  being
nonessential  (certain exemptions are given in the regulation).
        Compliance with the product ban is very good, the main reason being that  the majority of
products potentially affected by the ban no longer contain class I substances. The Clean Air Act was
signed into law in November 1990, while the products it identified as nonessential  were not banned
until February 1993. Manufacturers were therefore given more than two years  to find alternatives to
class I substances. In the case of those products subsequently identified by EPA, most manufacturers
had already  switched to alternatives by the time the regulation was published  in January 1993,  and
those products were banned only in January 1994.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         441
       With respect to enforcement actions, EPA has filed only one case against a violator for offering
for sale and selling noise horns. Enforcement in this program is straightforward, as the nature of the
violation is unambiguous.

3.5    Labeling

       Section 611  requires warning labels on containers containing class I or class II substances
and on products containing or manufactured with class I substances when those containers or
products are  introduced into interstate commerce. The language of the label is mandated by the
Clean Air Act and the placement and other requirements are established by the regulation. This
warning label may not be  removed from a product except by its ultimate consumer. However, the
concept  of "product" in this regulation is complicated by the fact that some  products may be
incorporated  into other products during manufacture, and the second manufacturer is, in this case,
an ultimate consumer. For example, a computer manufacturer might purchase chips manufactured
with class I substances from a supplier, and incorporate those chips into a computer. The computer
manufacturer becomes the ultimate consumer of the chips, and may remove the warning label from
the chips. The computer manufacturer is then not required to label the computers unless he uses a
class I substance himself when manufacturing the computer.
       EPA does not have figures on compliance rates for the labeling regulation. There is no routine
inspection program in place, although the Agency has performed inspections to address potential
violations on an as—needed basis. Compliance determinations should be simple in the case of
products or containers which contain class I substances in that it should be possible to chemically
analyze the product or container  in question to determine the presence of the substance. The case
of products manufactured with a class I  substance Is more  complicated. Class I substances are
volatile, and there will rarely if ever be any residue left in the product. Chemical analysis is therefore
not possible.  Compliance determinations will then rest upon documents affirming or denying the use
of a class I substance in manufacture. The greatest potential area for noncompliance seems to be
in the area of imports. Products or containers which are manufactured outside of the United States
must bear warning labels when they enter  the United States, but determining whether a product was
manufactured with a class  I substance may be difficult. The United States has no inspection authority
beyond its borders; hence, in some cases,  it may not be possible to make a compliance determination
for imported  products.

3,6    Significant new alternatives policy program

       The significant new alternatives program (SNAP) is the newest of the Title VI regulations. It
requires manufacturers of ODC substitutes to submit data concerning the applications of the
substitute, physical and chemical information, toxlcity data, etc. The Agency will then review the data
and rule on the acceptability of the substitute for the application in question.- if approval for a substitute
is denied, the regulation specifically prohibits its  use and subjects the user to enforcement action.
       The SNAP regulation was promulgated in February 1994. Like the recycling regulation, the
industry that  it affects is quite large. Ozone-depleting chemicals are heavily used in such areas as
the electronics industry and health care and as users move out of ODC use, all substitutes will be
subject to SNAP Unlike the recycling regulation, the SNAP regulation bears an additional complication
in that it regulates the use of a chemical, not its manufacture. The Agency will have to develop a
compliance and enforcement program that can find and prove that chemicals are being  improperly
used. Traditionally, EPA has regulated the manufacture of chemicals. Focusing on use may introduce
some as yet  unforseen complications.
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4      CONCLUSIONS

       As may have become evident from the previous discussion, EPA has relied on industry
awareness and education to promote compliance. In the case of the recycling regulation, the lack of
awareness has greatly contributed to problems with compliance, and also to frustration on the part
of industry over a perceived lack of enforcement. In contrast, the MVAC regulation has seen very
good compliance, due in large part to the work of trade associations and the fact that a voluntary
program had been in place for several years before the regulations became effective. The industries
regulated by the product ban and labeling also had several years between the time the Clean Air Act
was signed into  law and the effective dates of the  regulations. This leads to the, perhaps
unremarkable,  conclusion that compliance works best when  industry is made fully  aware  of the
regulations and is given sufficient lead time to become educated and to adjust to the new
requirements. The Agency has, in some cases, relied on education in order to make up for a lack of
resources for traditional enforcement actions. To that end, it is important to note that education is not
a substitute for traditional enforcement, but is a proven method of achieving compliance in its own
right.
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                     SPECIAL TOPIC WORKSHOP

           Criminal  Enforcement Role in  Environment


 1. Criminal Enforcement Role in Environment, O. Dubovic „	,	,	445
 2. Enforcement of Environmental Legislation Under Criminal Law by the Public
    Prosecutions Department in the Netherlands, G. van Zeben	451
 3. The Evolution of Environmental Crimes Enforcement at the United States
    Environmental Protection Agency, ££ Devaney	457
 4. The Rote of the Inspectorate for the Environment in Tracing Environmental Crime
    In the Netherlands, D.J. Van Zeben, J, van derPlas	465
See related papers from other International Workshop and Conference Proceedings.

 1. Criminal Enforcement of Environmental Legislation, Hans Fangman, Volume I, Utrecht, The
    Netherlands

 2. Criminal Prosecution in Environmental Matters—The State Perspective, James Lynch, Volume II,
    Utrecht, The Netherlands

 3. U.S. Experience and Differences Between Civil and Criminal Investigations and Use of Central
    Elite Force to Supplement Local Inspectors, C. Wfs and D.  Gipe, Volume I, Budapest, Hungary

 4. Choosing among Criminal, Civil Judicial, and Administrative Enforcement Options, D, van
    Zeben and M.  Mulkey (additional paper), Volume I, Budapest, Hungary

 5. The Application of Criminal law Instrument in the Environmental law Enforcement, A Hamzah
    and R. Surachman (additional paper), Volume I, Budapest, Hungary

 6. The Environmental Prosecuter: The Experience of a "Central Command" Theory of
    Environmental  Enforcement, S. Madonna (additional paper), Volume I, Budapest, Hungary

 7. Combatting Environmental Crime in an International Context, Y. van der Meer, Volume II,
    Budapest, Hungary
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 THIRD lNTERNATiot*iAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         445


 CRIMINAL ENFORCEMENT ROLE IN ENVIRONMENT

 DOUBOV1K, OLGA

 Leading Research Worker of the Center for Environmental Legal Studies (Institute of State and Law),
 Znamenka 10, Moscow 119841


        SUMMAFtY

        Ecological crimes are the most dangerous part of behavioural acts that damage the
 environment Control over environmental crimes is regarded as one of the most important spheres in
 the protection of ecology in Russia It embraces, first of all, perfection of criminal law and legislation
 on  the responsibility for ecological crimes in the framework of general Criminal Law and Judicial
 reforms, creation of an effective mechanism of the optimum realization of criminal law norms,


 1      INTRODUCTION

        Public attention to ecological problems in our country is now largely being made  acute by
 many objective and  subjective processes Among them is the general deterioration of the ecological
 situation, the continuing pressure on the environment, the realisation of new dangers which occur
-under -the-sonditions-0f-«xtension-of-informationr ineluding- a-greater-amount-eWnfotwiation-about-
 encroachments on nature, its destruction, in the situation of democratisation, when public ecological
 movements are really  capable of affecting the adoption and realisation of ecological decisions The
 important factor  of attention to ecological problems, which is a decisive factor for lawyers, is the
 reconsideration of ideas of property of natural resources, of the competence of departments, as well
 as  the currently taking place reform of criminal legislation.
        On the basis of the scientific research a conclusion can be made that in  the field of legal
 protection of nature (as well as in the sphere of prevention of different disasters) there has arisen a
 problem situation The society and state in the person of bodies of power need scientifically grounded
 information about the  possibilities of law to regulate economic relations, about the structures and
 methods capable of realising the potential possibilities In the view of this one circumstances should
 be underlined: these  questions practically are especially relevant to criminal law,


 2     DEMANDS TO STRENGTHEN THE  ROLE OF CRIMINAL LAW

        At present the most widely-spread  demands in  the public opinion are  the demands  to
 strengthen the ro'e of criminal law,  and consequently of criminal responsibility in the protection of the
 environment In the social-psychological aspect the demands of the kind are rather symptomatic and
 together with other factors testify to a certain state of tie public opinion, to the growth of rigoristic
 attitudes, which is confirmed by the results of sociological research In general one may assume that
 in its majority the society is prepared for the extension of limits of criminal responsibility and to  its
 strengthening in case  of ecological offences At the same time there exists a hostile attitude to this
 approach Against it, obviously or not so obviously, come out the persons adopting ecologically
 relevant decisions due to their posts, as well as persons having antisocial ecological interests Experts
 that in general speak for the restriction of limits and intensity of the criminal legal regulation, also
 have a guarded attitude to the strengthening of criminal responsibility It is  here views are largely
 formulated about the necessity of a differentiated and careful approach to the problem.
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446                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2.1     Difficulty of establishing criming responsibility

       As it is well known, it is more difficult to analyse the possibilities of criminal responsibility
Generally preventative and specially preventative functions  of the criminal punishment are justly
doubted in the special literature There is no serious proof of the mechanism and degree of their effect
In our opinion, what we need now is the factorai approach to the study of the potential effectiveness
of the criminal responsibility With this aim in view it is reasonable to find out: a) how clearly useful
and harmful behaviour are differentiated,  how clearly defined is the zone of the ecologically harmful
behaviour; b) whether  there exist conditions to choose between the ecologically useful and
ecologically harmful behaviour; c) whether the individual is capable of making this choice and thus
determine the existence of the object which must and can be regulated by legal means Further on,
it should be decided which legal  means can affect the decision about  choosing the  variant of
behaviour and in what way; here the problem is raised of correlation of different kinds  of responsibility
(moral,  economic, administrative,  disciplinary, criminal) At last, problems are  made concrete of
correlation of social values and the right of the society to punishment; here a problem arises of the
assessment of social danger, social harrnfulness of various kinds of antisocial ecological behaviour,
mercenary-minded, vanda ist,  negligent, professionally incompetent, etc,

2.2    Consequences of defining criminal behaviour

       The mechanism of the effect of responsibility on the behaviour becomes apparent in the given
social system, in the concrete historical conditions and is to a great extent determined by them
Criminal responsibility is seemingly inevitable But there exist serious restrictions of its possibilities
Once such necessity is abstractly recognised the resistance of the wide employment of such a
responsibility is great It leads to the falsification of the course of proceedings, the  distortion of its
results,  the consequences, the striving for deliberate deception of the society Criminal responsibility
objectively  leads to a greater number of those accused and in many cases prevents  from using their
experience and capabilities, since it excludes the right to further fulfillment of complex and responsible
professional duties The society, the groups formulating the legislative decisions, determining the will
of the lawmaker, must work out a certain approach to these problems, consciously understand the
mechanism of activity of different kinds of responsibility and be prepared for the consequences of
its realisation The sondages of the public opinion being carried out now show that the ideas of such
kind are not sufficient The obvious orientation towards the criminal responsibility is not accompanied
by the understanding of information about its consequences Placing responsibility is regarded as a
final moment of its realisation The real effectiveness of the punishment, the necessary expenses, the
inevitable growth of conflicts, social tension are often ignored Much the same arguments may be
developed  with respect to the assessment of social danger, social harm of certain ecological acts
and behaviour History shows  that such assessments are changeable One  shouldn't consider every
last one the most correct, however, lawyers must in one way or another take such assessments into
consideration if they don't want to create inoperative rules.
3     DEVELOPING CONSENSUS ON ENVIRONMENTAL CRIMES

       Ecological crimes  are  the  most dangerous part of behavioural  acts that damage the
environment In  the conditions of an essentially new,  radically different approach to ecological
problems, the struggle agsiinst ecological crimes comes to attract the most serious attention of the
society, of different social groups, experts This can be explained by a number of reasons First of all,
ecological crimes are conscious opposing of an individual to public interests, the behaviour which
consist in violating the proved, important, sanctioned by the society rules of behaviour It is in the
ecological crimes that you can see reflected in the most concentrated form those negative phenomena
which lead to the damage of nature, adopting wrong decisions and thoughtless exploitation of natural
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 THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         447
 resources Further on, the concept of the criminal and legal means of environmental protection is
 such that the ecological crimes present lots of various types of behaviour, differing In the method of
 acting, their alms, motives, spheres of accomplishment They are brought to life by the steady, deep
 negative processes in the social development And at last, practice has show that the ecological
 crimes (especially those connected with major  catastrophes and industrial disasters) are doing
 colossal harm The consequences of such damage do have and may have global nature, they are
 hard to remove aid are long lasting.
        In recent years the attention of lawyers in our country has been concentrated on the following
 issues: the concept of ecological  crime; revealing the level  of  latency of ecological crimes and
 applicability of certain criminal and legal norms; the structure of ecological crimes; defining the real
 harm done by ecological crimes in the general negative effect on the environment; the causes of
 ecological crimes; the effectiveness of juridical responsibility and the perfection of criminal legislation
 and prevention of ecological crimes Let me briefly consider some of them.
        The ecological crime is stipulated by the criminal law socially dangerous  deed action or
 absence of action, encroaching on the environment and its components, whose rational exploitation
 and protection ensure the optimal activity of man This crime consists in the illegal use  of natural
 objects as a social value which leads to their negative changes The ecological crime is a variation
 of the ecologically relevant behaviour which in its turn, presents a combination of socially conditioned,
 volitional actions of individuals or groups that use the environment and cause (or may cause) changes,
 affecting the interests protected by law.
        In our  crirninotogteal literature great attention is given to  the problem of studying the state
 and structure of different groups of crimes, including ecological crimes But it should be noted that
-the avallable-statK3tical-data-abc4jt4he-eGolog^
 extract They are not so much information about the state of ecological crimes, but rather some indices
 of the struggle against such crimes by the investigation and court bodies, by  the system of criminal
 justice Or  course, such data  also have significance  as they reflect the  state,  the  Intensity and
 possibilities of this line of criminal policy.
        Many experts point to  a considerable gap between the quantity of the  revealed criminally
 punishable deeds, such as the pollution of water and air, the contamination of the sea by substances
 harmful for people's health and the wildlife of the sea, and on the other hand - the real application
 of the criminal lav/ Thus, in 1970 the Russia  heard only three trials of those guilty of the pollution of
 water  and air; in  the course of the 70s such cases were  also few; the generalization of the legal
 practice for the years of 1977-1983 showed that this tendency remains; for  period 1984-1992 the
 courts have considered only several dozens  of cases In many regions of the  country, in spite of the
 registered facts of the pollution of water and air, the number of people convicted is either insignificant
 or equals zero There is practically no conviction for the  execution or timber-rafting or explosive
 operations accompanied by the violation of rules of fish protection Court are not applying norms on
 criminal responsibility for unqualified poaching (p. 1 art. 163 and p. 1 art. 166 RF CC) for the violation
 of rules of prospecting for mineral resources  (art. 167 RF CC) At the same time it is obvious that the
 application of other norms is growing: the number of convicted for qualified poaching  (catching fish
 and water animals), for illegal hunting, for illegal cutting of timber, has increased The analysis of the
 statistics shows that the practice of instituting criminal proceedings reflects the intensity of criminal
 activity of certain  types This can be seen rather consistently in poaching and  cutting of timber Such
 crimes as  the pollution of water and air either slightly or  just not correlated with the real state of
 environmental protection, with the total number of illegal cases of pollutions.
        Thus, even as applied to the ecological crimes the latency may be greater or less considerable
 In some situations the state of applicability of criminal and      norms at least reflects the state of
 criminality, in some others the link between the two is practically not traced.
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448                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
4      TYPES OF ENVIRONMENTAL. CRIMES

       The ecological criminality is divided into three parts;  malfeasance, mercenary and vandalist
crimes. In order to get the criminological characteristics of criminal malfeasance the most significant
are such of its signs as: the link between the deeds and the competence of the subject; the purpose
of action; the nature of causal relationship between deeds and consequences; the duration in time
of the violation of the acting rules The analysis of these signs made ft possible to single out several
subgroups of criminal malfeasance.
       The first one is the crimes which actually having been committed  for a long period of time
one day cause grave consequences, and as a result -  the response of the legal bodies In these
cases instituting criminal preceedings is usually proceeded by numerous measures, warnings made
by the nature protecting bodies The varieties of the crimes of this kind are the following: the pollution
of water or air resulting from the exploitation of worn out equipment; the exploitation of the equipment
above  capacity;  switching off the equipment; the  violation of technological rules of executive the
production or nature protecting activity In general we can say that these are the crimes consisting in
exceeding the permissible degree of the production risk which suddenly leads to ecological damage
The second subgroup of crimes is connected with direct neglecting of technological rules They may
be committed for a long period of  time when the possibility exists to observe the rules, but this
demands either greater investments or modifications of the main production In these case we face
the neglecting of using the available nature protecting possibilities The third subgroup unites one-time
or situations!  neglecting of the acting rules, the switching off of the equipment, discharges of wastes
in a volley, violations of technology The fourth subgroup is made by the crimes connected with making
unpardonable, though  undeliberate mistakes in using the worn  out equipment  in designing,
elaboration of technologies which later on result in ecological damage.
       The group of-mercenary crimes is singled  out on the basis of deriving material profit when
committing them Their criminological characteristics is analysed on the basis of the data about the
duration in time of the criminal behaviour, about the use of different technical means, about the scope
of criminal activity and the nature of consequences and other signs A number of research works has
shown that poaching turned into a means of gain giving  considerable profit and may sometimes be
estimated as  professional criminality Among those against whom criminal proceedings were instituted
for illegal hunting, illegal fuchung there are only 21 % of people who committed the crime for the first
time of situationally, i.e. "accidental"  criminals The equipment of the criminals is the following: e.g. in
illegal fishing: motor boats with  a powerful motor - 43,7%, special means of lighting - 9,8%, illegal
means of catching - 62,4% inclusing expensive, additionally modified - 49,1% The incomes of some
criminals are very high, e.g, of those engaged in illegal catching of salmon, getting caviar, etc.
       The damage caused by vandalist activity is also high This, in the  first place refers to forest
fires, shooting of animals registered in the Red Book, etc.
 S     ENFORCEMENT AGAINST ENVIRONMENTAL CRIMES

       Control over environmental crimes is regarding as one of the most important spheres in the
 protection of ecology and criminal law It embraces, first of all, well-timed revealing of the crimes, then
 studying the processes and phenomena causing the said crimes, the legal (including criminal law)
 estimate of certain behaviour acts, the working out and realisation of preventive measures The state
 of control over ecological crimes in the country is practically unanimously considered unsatisfactory
 State power and government bodies, ministries and law protection agencies admit the insufficiency
 of the measures being taken The system of nature protection bodies is still being formed (in recent
 years in more  towns and districts appear special nature protection Offices of public prosecutors,
 ecological  militis, etc.,  but up to this moment we are facing duplicating  in the work, delimiting the
 functions and people lose ciedit to the official structures, etc., also has some seamy sides connected
 with the diminishing of the role of law.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         449
       In these conditions of special importance in the sphere of control over ecological criminality
become the following factors:  a) perfection of criminal  law and legislation on the responsibility for
ecological crimes in the framework of the general Criminal Law and Judicial reforms in Russia; b)
creation of an effective mechanism of the optimum realization of criminal law norms; c) deepening
of scientific knowledge about various causes of ecological crimes, about real social conditions leading
to environmental crimes, the growth of ecological criminality, the increase of  damage; d) expansion
of social and scientific cooperation, including elaboration of the confidence conception in the sphere
of criminal  legislation and practice of its application.
6      IMPROVING CRIMINAL LEGISLATION

       Let us now consider the question about the perfection of the criminal legislation It should
meet the following demands: a) it should present a well-coordinated system of prohibitions; b) it
should contain a concretized description of the prohibited types of ecological behaviour, consisting
in the harmful effect on the environment; c) it should  provide a full list of consequences regarded as
ecologically harmful; d) it should define the signs determining the borderline of social danger and
grading the said danger.
       Experts in the field of criminal law are at present actively discussing the question about the
necessity of a new approach to the grounds for criminal responsibility for encroachments on the
environment, the connecting this with the complexity of the causal relationship between the deed and
its consequences, the dependence of the trail on different several causes, the unusual nature of the
intellectual side ol the guilt, etc In our opinion, no matter how complex are the tasks the law-maker
Is facing, the principles of criminal responsibility, formed in the doctrine of criminal law, must be
invariably observed and act as certain restrictions of the criminal legal decisions It especially concerns
the principles of individual responsibility and guilt  True, the very understanding of guilt may  be
deepened or changed with the appearance of new encroachments and with the consideration of the
specific nature of different criminal legal systems,
       The draft of the new Criminal Code of the Russia there is a special chapter on ecological
crimes It includes two groups of norms The first one is  the general norms,  stipulating responsibility
for encroachments on the environment in general The second  one is the norms protecting certain
elements or objects of the environment The concept of prohibitions, included in these groups is based
on the criminological and social and legal research of the ecological behaviour, the effectiveness of
the juridical responsibility for ecological offences, the causes of ecological crimes, the mechanism
of acting of law in the protection of nature, which was carried out in the 80s in Institute of State and
Law This research has revealed a considerable social  danger of the mercenary, vandalist, incompetent
and unprofessional behaviour.
       The norms of the first group must contain the rules proper of the behaviour, i.e. prohibitions
addressed to pecple and the rules  to a certain extent determining the content of the norms of trie
second group The main place in this group of norms is taken by the general corpus delicti against
environment as  a deliberate or negligent violation of the rules of exploitation or protection of soil,
water, air,  flora and fauna which  caused sufficient ecological damage  such as degradation,
exhaustion, destruction or damage of natural resources, as well as damage to life and health of the
people, or other grave consequences  The  qualifying signs here may be:  the using of sources of
heightened danger,  or chemical weed-killers, explosives, the making  of  fires or other generally
dangerous deeds Such a composition  of the corpus delicti in general makes a possible to liquidate
some blanks in the criminal law without extending the scope of its action, without leading to additional
criminalisation of the behaviour At the same time conditions are created  ensuring the unity of all the
criminal and legal means of nature protection This is achieved by pointing to the illegal nature of the
deed, by describing the means of affecting the nature and by characterising the consequences.
       Of general nature is also the norm concerning  the violation of the ecological balance It is
formulated in two ways The first one is  realised by concretizing the means with which the crime was
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450                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
committed It may be the violation of the rules of introducing new technologies, technical devices, of
carrying out scientific experiments, working out projects (e.g. the notorious turn of the rivers in Russia),
whose consequences today are unpredictable,  etc. The second one is realised by pointing to such
consequences as the ecological disaster in region, the irreversible or ungovernable changes in the
environment, or the deterioration of health and heredity of the people, or extinction of some species
of flora and fauna, or some steady changes in the climate and radioactivity The qualifying signs here
are the using of especially dangerous and uncontrollable means of affecting the environment, as well
as  the consequences presenting considerable  ecological damage  It may be human victims,
epidemics, natural disaster At the same time ensuring the application of this norm in case it is adopted
requires the decision of number of theoretical, practical and juridical questions This refers first of all
to people understanding of the specific content of the causal relationship between the deeds of the
subject and the consequences,  which is naturally complicated by some  intermediate links, etc.
       Of general nature is  also the norm instituting criminal proceedings for  providing false
ecological information It does not compete with other offences, e.g. of economic character, since the
nature and legal status of the information are different, or malfeasance (forgery) since here the subject
and means of committing the offence  are different This deed is defined as providing deliberately false
information about the state of the environment or nature  protection  activity, or about the possible
consequences of the exploitation of the natural resources which caused considerable ecological
damage The need In this norm is great in Russia.
       The norms concerning the encroachments on certain types of object should  be built up in
fact following the structural elements of the general  norms, singling out means and ways of the
criminal encroachment, the characteristics of ttie object of nature and the consequences the place
in between the two considered  groups of norms may be occupied by  the norm instituting criminal
proceedings for the pollution of the environment It should include the norms about the proceedings
for  the pollution of the  sea, for the violation of the continental shelf legislation, for illegal hunting of
beavers and seals Their inclusion  is dictated by the  available international agreements Also there
should be the norms instituting proceedings for the violation of the regime of particularly guarded
objects of nature, illegal hunting and  fishing, cruelty to animals.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        451


ENFORCEMENT OF ENVIRONMENTAL LEGISLATION UNDER CRIMINAL LAW BY
THE PUBLIC PROSECUTIONS DEPARTMENT IN THE NETHERLANDS

VAN ZEBEN, GISELE

Public Prosecutor, National Coordinator for Environmental Affairs at the Support Section of the Public
Prosecutions Department, Prinsessegracht 28, The Hague, The Netherlands


       SUMMARY

       This article examines the role of the Public  Prosecutions Department in the enforcement of
environmental law in the Netherlands.
       After a few opening remarks attention is focused on the relationship between the Public
Prosecutions Department and governmental authorities. The relationship between  the  Public
Prosecutions Department and the Environmental Protection Inspectorate is then examined. The author
then turns to the Department's relationship with the police. The main focus of all these sections is
cooperation in the  enforcement network, which is absolutely essential  for the enforcement of
environmental  law. The final part of this article  looks at the structure of the Public Prosecutions
Department and the instruments available to it in the field of environmental criminal law,


1      INTRODUCTION

       The Public Prosecutions Department is the  only body in the Netherlands with responsibility
for prosecuting criminal offences. Only a public prosecutor can  institute criminal proceedings in the
criminal division of a court; the police and members of the public do not have this right. The public
prosecutor may also decide not to prosecute a case, either for lack of  evidence or because he
considers it In the public interest. Naturally, society has to be assured that the Public Prosecutions
Department pursues a clear and consistent policy in the prosecution of cases, striking a balance
between the interests of society, the authorities, the public and the environment.
       Since the publication of the first National Environmental Policy Plan (NEPP) on 25 May 1989,
the Dutch government has made millions of guilders available to the various authorities involved in
implementing the plan and enforcing the law. The Public Prosecutions Department was among those
to receive earmarked funds to take on and train" extra staff and purchase the necessary facilities.
       On 6 June 1990 the five Procurators General who head the  Public Prosecutions Department
published a report recommending  that the enforcement of environmental legislation under criminal
law be stepped up, thus prompting greater commitment on  the part of the Department to the
enforcement of environmental law.
       Under section 4 of the Judiciary (Organisation) Act the Public Prosecutions Department has
responsibility for law enforcement in the Netherlands. This responsibility is expressed mainly through
criminal law, since:  the  Public Prosecutions Department is a key link in the  chain of criminal law
enforcement (investigation, prosecution, trial and execution of sentence). This places the Public
Prosecutions Department in an ideal position to monitor the impact of new and existing environmental
legislation and assess whether enforcement under criminal law -  sometimes in combination with
administrative and private  law sanctions - is likely to have the desired effect. As well as playing a key
role in assessing the enforceability of new and existing environmental laws, the Department has a
significant contribution to  make in  the system of official bodies with responsibility for ensuring that
instruments are applied as efficiently as possible when violations are detected. The Public
Prosecutions Department has consciously opted not to resort only to corrective measures which
ensure that offenders pay for their  crime and that standards are upheld, but also to concentrate on
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452                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
remedying the environmental  damage caused and depriving offenders of any illegally obtained
financial advantage.
       As pointed out above, enforcement of environmental law is the joint responsibility of the Public
Prosecutions Department, the  police and governmental authorities. In the Netherlands, the .various
bodies concerned  (central government, provinces,  municipalities  and water boards) employ both
supervisory and  investigative officers. The  former are primarily accountable to the  governmental
authorities, while the latter operate under the auspices of the Public Prosecutions Department. In
addition, the  Economic Offences Act  (which covers most environmental crimes) accords police
officers extensive powers to carry out checks whether or not they suspect that an offence has been
committed. It was recognised from the outset that environmental law should be enforced jointly by
the Public Prosecutions  Department, as the government body responsible for prosecuting
environmental offences, the police and the governmental authorities (central government, provinces,
municipalities and water boards). Naturally, all these bodies must work closely together.
2      THE PUBLIC PROSECUTIONS DEPARTMENT AND GOVERNMENTAL AUTHORITIES

       It was recognised from the outset that the enforcement of environmental legislation would
require a local  and regional approach, since it is the regional  authorities who issue licences to*
companies.  Knowledge of the region and the cooperation of local authorities in the region  were
regarded as crucial. Such an approach also allows more account to be taken of specific regional
environmental problems, such as manure, port pollution, horticulture and industry.
       It was also acknowledged that regional cooperation between local government, the police
and the Public Prosecutions Department would be essential. Provincial and municipal authorities are
responsible for issuing licences and monitoring compliance with licence conditions, while the police
and Public Prosecutions Department can only prosecute environmental offences successfully if they
are kept well informed by local government.  Cooperation also allows the most effective mix of
enforcement instruments (administrative, civil and criminal law sanctions) to be applied.
       In 1990 the Dutch government therefore decided to initiate the creation of an enforcement
network for environmental law. On 11 October 1990 the environment minister, transport and water
management minister, justice minister and interior minister wrote to the Lower House of Parliament
setting out their intentions, outlining the proposed structure of the network, which centres on regional
cooperation between municipalities (mostly involving one large municipality and the  smaller
surrounding municipalities).
       The Public Prosecutions Department aims to participate fully in this network, and is willing to
enter into arrangements and take on commitments. The. Department participates in  a  number of
consultative fora and uses the priorities agreed in those fora as the basis of its prosecutions policy.
       Each environmental public prosecutor is a member of  a number of regional multi-disciplinary
committees in his district, which discuss issues such as:
       » Joint programming and implementation of enforcement activities;
       • Coordination of monitoring  and investigative activities  by the  various regional
         government agencies;
       « Joint enforcement projects on specific  matters involving the police, the Public
         Prosecutions Department and local authorities;
       » Problems with regional enforcement and particular companies;
       • Exchange  of administrative information on  companies and the status  of their
         licences, and of details of any offences they may have committed.

       Enforcement of the law against corporate environmental crime tends itself particularly well to
joint programming and implementation. Regional programmes are set up to coordinate the monitoring
operations of the different bodies involved with regard to a  specific industrial sector or company.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         453


These plans might also specify what the regular police force will be expected to contribute by way
of questioning witnesses.
       Determining a joint enforcement strategy at regional level can also help the authorities and
the Public Prosecutions Department to act in concert. Such a strategy might include agreements as
to how the competent authority and the Public Prosecutions Department will respond in the event of
environmental crime,  and how they intend to exchange information in such instances,
       The governmental authorities have little to do with the enforcement of laws against more minor
offences, such as burning waste, making illegal discharges, dumping rubbish on the roadside and
chopping down trees. However, they should be  involved in cleaning up pollution.
       Police surveillance is the main means of enforcement when it comes to this type of crime. It
can be carried out on a project basis, focusing, for instance,  on certain types of incidental crime for
a certain period of time. Such projects are generally launched jointly by the local authorities, the
Public Prosecutions Department and the police, who might also agree to bring all the cases uncovered
during the project before the court at one special sitting. This attracts publicity and has a preventive
effect.
       Combating serious organised environmental crime is exclusively a matter for the investigative
agencies and the Public Prosecutions Department. Governmental authorities can play no more than
a supporting role, providing information or disposing of hazardous wastes, for example. They might
also be  involved in cases of bribery or official corruption.
       Criminal investigations of serious organised environmental crime are usually complex,
time-consuming affairs.  If ttie governmental authorities act too soon, they might jeopardise the
success of the investigation. If, for instance, they were to carry out an inspection at the premises of
a company which was due to be searched by investigating officers, Important evidence  might be
lost. The governmental authorities must therefore take account of the specific interests of criminal
investigations.
       Multidisciplinaiy environmental enforcement teams, with representatives of the municipaiities,
water boards, regional  environmental inspectorate, province, police and Public Prosecutions
Department are currently being set up in some regions. Work is also being done in some regions to
set up a system for providing information from administrative and criminal records.
       At national level, the Public Prosecutions Department and the governmental authorities meet
in a number of consultative fora, the most important of which is the National Coordination Committee
for Environmental Law Enforcement  (LCCM), which is chaired by the  Chief inspector of the
Environmental Protection Inspectorate. The committee has representatives from all the authorities
involved in the enforcement of environmental law. It sets national enforcement priorities each year
and makes recommendations to the relevant ministries.
       Of course cooperation between the Public Prosecutions Department and the governmental
authorities does not always run this smoothly.  In the experience of the Public Prosecutions
Department, the authorities are often not fully aware that criminal law can be used to lighten the
burden of enforcement.  Many administrative and supervisory officers are not even aware of all that
the public prosecutor can do. Some seem to feel that resort to the criminal  law is too drastic a step
and are Inclined  to protect companies from such measures. This occurs  particularly in situations
where the authorities have already been holding talks with a company for some time about whether
it should be obliged  to observe all rules strictly. Governmental authorities are also sometimes keen
to prevent their own - Imperfect - role in a criminal investigation from becoming known. Their toleration
of some illegal activities is a thorn in the side of the Public Prosecutions Department. The Department
has informed the authorities that it takes a dim  view of official toleration.
       Governmental authorities will, in future, have to regard their role more as one of law enforcers
than  as an advisory  service for companies. Only then will they be able to work together effectively
with the Public Prosecutions Department. There are signs that the authorities  are becoming better
disposed towards the idea of enforcement by criminal law.
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454                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
3      THE PUBLIC PROSECUTIONS DEPARTMENT AND THE ENVIRONMENTAL
       PROTECTION INSPECTORATE

       As far as the Public Prosecutions Department is concerned, the Environmental Protection
Inspectorate occupies a unique position. The Inspectorate operates 'at a distance1 from governmental
authorities and its main responsibility is 'secondary monitoring'. It monitors the implementation of
environmental policy by the local authorities such as provinces and municipalities. In this context it
also keeps an eye on the quality of licences and monitoring activities. Here, the interests of the Public
Prosecutions Department and the Environmental Inspectorate coincide. An enforceable licence and
adequate monitoring are essential for effective enforcement under criminal law. The Inspectorate and
the Public Prosecutions  Department regularly exchange information on these matters. The Public
Prosecutions Department may also call upon the help of the Inspectorate's Environmental Assistance
Team at any time (see below).
4      THE PUBLIC PROSECUTIONS DEPARTMENT AND THE POLICE

       The police service in the Netherlands is divided into 25 regions. There is also a national
service, the National Polices Services Force. A special environment office has been set up in most of
the regions to take charge of the enforcement of environmental legislation under criminal law. In
regions with no environmental office, enforcement of environmental law is still a recognised part of
regular police work. As stated above, enforcement of environmental legislation under criminal law is
the responsibility of the Public Prosecutions Department; in practice this means that the environmental
public prosecutor attached to a district court is responsible for the enforcement of these laws by the
police in the regions within that court's jurisdiction.
       The National Polios Services Force has an Environmental  Crime Department (part of the
National Criminal Intelligence Division) which has  the  task  of analysing and  classifying criminal
intelligence on environmental offences.
       Each police region has its own chief, one of whom is in charge of environmental matters at
national level and liaises with the other organisations involved in enforcement.
       With the stepping up of environmental law enforcement and closer cooperation (in the form
of joint priority setting and programming), the Public  Prosecutions Department has to exercise
increasing control over the enforcement activities of the  police. This takes the form of input into the
police service's annual programmes and participation in joint national or regional talks on enforcement
with governmental authorities.
       The  enforcement of  environmental  legislation  under  criminal law  requires  certain
environmental, legal and administrative know-how and experience. The police could, of course, take
on experts who have the required skills and experience. However, this is not such an obvious move
for the Dutch police, since they prefer their tasks and  responsibilities to be formulated in general
terms, calling upon the expertise of other government services or  special investigative agencies if
necessary. Employing specialists would also mean that the police would no longer have a direct line
of contact with  the governmental auttiorities,
       When it comes  to  administrative know-how and  operational information obtained from
monitoring by supervisory officers, it is more effective to use experts who come from administrative
authorities and  are responsible for administrative enforcement. Such experts can always turn to their
colleagues to obtain the information they require, such as details of the status of a particular
company's licence, general information on a company, etc,
       The  special investigative agencies, who also  assist the police, are  part of  government
departments, and therefore function as an on-line connection with governmental authorities. The
police work closely with the national  Environmental Assistance "feam  and the  Inspectorate for the
Environment. The former can be brought in at the  request of a public prosecutor, and consists of
some 100 staff (experts in legislation, environmental protection and technology, and investigation
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        455
techniques) who we authorised to carry out investigations. They have general inspection duties and
may also be deployed to support the police service's investigation work.
5      THE PUBUC PROSECUTIONS DEPARTMENT: STRUCTURE AND INSTRUMENTS

5.1    Structure

       Enforcement under criminal law is carried out by investigative officers (mainly police officers)
on the authority aid responsibility of the Public Prosecutions Department. The Minister of Justice is
accountable to Parliament for the Public Prosecutions Department, The Minister has a departmental
working party on environmental law enforcement to help him in this task.
       The Public Prosecutions Department is divided into the five regions served by appeal courts,
each of which is further divided into two or three districts served by disttct courts (of which there are
19 in total). There are two or three police regions in each district.
       Criminal cases are first brought before one of the 19 district courts by a public prosecutor;
cases which go to appeal are brought before one of the five Courts of Appeal by an Advocate General.
The  public prosecutors in a district are under the leadership of the Chief Public Prosecutor, while the
five Procurators General manage the Advocates General in the regions. The Procurators General are
also responsible for running the Public Prosecutions Department at national level, with the assistance
of a support section. Each Procurator General is responsible for a different field.
       One of the five Procurators  General  holds the environment portfolio and is  therefore
responsible for the enforcement of environmental legislation under criminal law at national level.  He
or she is assisted by the support section's environmental policy unit. One Advocate General in each
region is responsible for environmental cases which go to appeal.
       In each of the 19 districts one or  two  public prosecutors have special responsibility  for
prosecuting environmental cases at first instance.
       Besides the environmental policy  unit, the Procurator General with the environment portfolio
is also assisted by a number of  national environmental committees  whose  members are  public
prosecutors. There are special committees for surface waters, agriculture and nature management,
information and a more general  environmental management committee.

5.2    Instruments

       The most important pieces of environmental legislation for enforcement under criminal law
are the Environmental Management Act (which came into force on 1 March 1993), the Pollution of
Surface Waters Act and the Chemical Substances Act, Anyone who violates the bans and orders in
these Acts may be prosecuted  under the Economic  Offences Act, which also stipulates sanctions
and maximum sentences. The  maximum sentence  is soon to be raised from two to four years'
imprisonment once a bill which  is now in preparation has been  passed. Maximum fines vary from
NLG 10,000 to NLG 100,000. There are no minimum sentences in the Dutch legal system.
       The trend is clearly towards stiffer sentences for environmental crime. The Procurators General
have drawn up guidelines for the Public Prosecutions Department's policy on instituting legal action
(eg. under legislation on manure or illegal discharges).
       Companies which have committed environmental crimes may be forced to fully or partially
cease their activities. Deprivation of financial advantage obtained  by means of an offence is another
penalty being applied to an increasing extent. Finally, the court  can order a convicted offender to
remedy the situation caused by  his actions.
       Before a case  is brought to trial, the public prosecutor can  take temporary measures if
immediate action is necessary. He can, for example, order the suspect to desist from certain activities.
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456                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       A small number of very serious environmental offences can be punished under the Criminal
Code (art, 173a), with a maximum sentence of 12 years' imprisonment. Such crimes are usually also
associated with other offesnces, such as falsification and fraud.
       Individuals suspected of offences carrying  a sentence of four years' imprisonment or more
may be placed in pre-trial detention. Special investigation techniques, such as phone tapping, may
also be used in such cases.
       In general the police and public  prosecutor have more powers in relation to environmental
offences than to ordinary offences. They  may, for instance, inspect a company's records whether or
not they suspect that an offence has been committed.
       Under Dutch criminal law, both  natural and legal persons  (companies) may be called to
account under criminal law.
       The public prosecutor may also decide not to prosecute a case, subject to a number of
conditions. The offender might, for instance, be required to pay a fine, pay compensation for the
environmental damage caused, invest in environmental improvements and/or clean up the pollution
caused. The public prosecutor can also  order a company to undergo an environmental audit. With
large, complex companies, in particular, this can  be an effective way of improving environmental
management practices. Such conditions  may also be imposed by a court in its judgment, should the
public prosecutor decide to go ahead with the prosecution.
       Some crimes call for a speedy response, for the sake of the suspect or because of the social
relevance of the crime in question. It is in  the interests of society that such cases be dealt with quickly.
In addition to publicising the offence, the investigating officer  may offer, on behalf of  the public
prosecutor, an out-of-court settlement in consideration of a fine. This is sometimes done as part of
projects targeting small-scale environmental crimes. The public prosecutor also has the option of a
'fast-track procedure1, whereby the suspect is brought before the court shortly after committing the
offence.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        457


THE EVOLUTION OF ENVIRONMENTAL CRIMES ENFORCEMENT AT THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

DEVANEY.EARLE.

Director of Criminal Enforcement, United States Environmental Protection Agency, Office of
Enforcement and Compliance Assurance, 401 M Street S.W., Washington DC 20460 USA


       SUMMARY

       This paper summarizes the dramatic expansion in the use of criminal enforcement at the
United States Environmental Protection Agency (EPA or Agency), examines the results, and discusses
the reasons behind the criminal program's growth. The  paper traces the evolution of criminal
enforcement at EPA, touches on the participation of the program in case screening processes at the
Agency, and discusses at greater length the case selection criteria recently adopted by the Office of
Criminal Enforcement (OCE), The paper, moreover, addresses the selection of appropriate targets for
federal criminal environmental investigation, and identifies the future priorities of the EPA environmental
criminal program.


1      INTRODUCTION

       This Conference is premised, in part, on a shared recognition that the impact of environmental
law on society is largely dependent upon effective enforcement of such  law. This, in turn, requires
the availability of sanctions that not only recover the economic benefit gained by violating the law,
but  also serve  as a credible deterrent  to noncompliance. One of the hard lessons learned In
environmental law enforcement is that individuals and companies confronted with only administrative
or civil judicial fines often find it advantageous to continue to violate the law and merely absorb such
penalties as a cost of doing business. What few individuals making compliance decisions are willing
to risk, however, is the prospect of'&criminal~conviction~and imprisonment:        	~	
       Over the last two decades, the international public has reached a consensus that serious
violations of environmental  laws, such as deliberate or intentional misconduct,  repeated
noncompliance, concealment or  falsification of information and records, are properly viewed and
prosecuted as crimes. This realization stems from the affirmation that environmental crimes are not
"victimless", but have far-reaching and pervasive consequences,  the effects of which  are often
concealed for ye.ars, or even decades. In response to public sentiment and  support, many nations
have now added criminal sanctions to their environmental laws, and placed  ever greater emphasis
on the criminal prosecution of environmental law violators.
       This trend towards environmental crimes enforcement has been especially pronounced in the
United States, and is  reflected by EPA's rapid  progress in developing a formidable capacity to
investigate environmental crimes  across the nation.
 2     HISTORY OF THE U.S. EPA CRIMINAL ENFORCEMENT PROGRAM

       In 1980, the EPA formally acknowledged that  federal  environmental  crimes enforcement
 required the use of experienced investigators. Accordingly,  on January 5, 1981, the Agency
 established a new office, which  later was named the Office of Criminal Enforcement (OCE), and
 authorized ttiis office to hire specialized, full-time, criminal investigators. Subsequently,  in January,
 1981, the Attorney General of the United States confirmed the authority of EPA" criminal investigators
 to initiate or assist in the criminal investigation of potential violations of the nation's environmental laws.
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458                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       In  October 1982, twenty-three federal investigators  from other federal  law enforcement
agencies were hired as the nucleus of the newly established OCE. The majority of these agents were
located in each of EPA's ten regional  offices in order to immediately investigate  allegations of
environmental crime when and where they occurred, and to also facilitate working relationships with
state, local and other federal investigators in the field.
       To supplement its small number of  investigators, EPA entered into a  Memorandum of
Understanding (MOD) in 1982 with the Federal Bureau  of Investigation (FBI), This MOU served as
the basis  for the two agencies to provide mutual assistance in environmental investigations, and
committed the FBI to investigate at least 30 environmental cases a year upon U.S. EPA's request.
This enforcement partnership with the FBI was refined in 1991, with a new MOU that reflected changes
over the intervening years. The Agency has entered into similar cooperative agreements with other
law enforcement agencies, such as the 1987 MOU with the U.S. Customs Service, and many less
formal working partnerships with state and local law enforcement.
       In  1982, EPA's criminal enforcement efforts received a major boost when the United States
Department  of Justice (DOJ) established an  Environmental Crimes Section. One of the principal
functions of this Section was to develop an expertise in environmental law enforcement, and thereafter
provide assistance to regional United States Attorney's Offices lacking in such experience. Now, with
increasing numbers  of United States Attorneys'       developing environmental expertise, each
passing year has witnessed a steady increase in the number  of criminal matters referred by EPA to
United States Attorneys and the  amount of criminal penalties imposed for environmental offenses.

2.1    Legislative recognition and enhancement of EPA's criminal enforcement program

       The  continued growth and  maturation of EPA's criminal enforcement program is  largely
attributable to four national legislative milestones. The first such milestone was the upgrading of the
criminal provisions of environmental laws from misdemeanor to felony offenses, and the addition of
new "knowing endangerrnent" crimes. These statutory criminal sections now more accurately reflect
the importance assigned  by Congress and society to the enforcement of environmental crimes.
       The second major legislative  development demonstrated Congressional confidence in EPA's
criminal enforcement program. In this regard, on November 1,1988, Congress passed a law granting
full law enforcement powers to EPA criminal investigators. This law, codified at 18 U.S.C 3063,
authorizes EPA agents to carry firearms, obtain and execute warrants, and make warrantless arrests
in proper  circumstances. With this change, Agency investigators no longer need to be designated
special deputy U.S. Marshals each year in order to exercise law enforcement powers.
       The third important milestone was enactment  of the Pollution Prosecution Act on November
16,1990. In enacting  this legislation, Congress acknowledged the unique role of criminal enforcement
in "motivatfjng] people and  companies to comply with environmental laws in a way that civil judicial
and administrative enforcement rarely can do." (1) Consistent therewith, the law requires unparalleled
growth in EPA's criminal enforcement program,  mandating, among  other things, the hiring and
deployment of 200 U.S. EPA criminal investigators by 1996. Concomitant with passage of this Act,
EPA centralized and strengthened its  criminal enforcement program by relocating OCE to Washington
D.C. from Denver,  Colorado, and by appointing as OCE Director a career criminal investigator with
22 years of investigative and management experience.
       The fourth  legislative milestone of significance to EPA's criminal enforcement program has
been the development  of uniform U.S. Sentencing  Guidelines applicable to individuals and
organizations that commit environmental crimes. These  Guidelines enhance EPA's ability to achieve
compliance  and remediation through criminal enforcement. Before the Guidelines went into effect,
the severity of sentences usually depended  on the  individual values and  subjective views of  the
sentencing court. In  contrast, the Guidelines now provide the  public with  a clear and formidable
picture of the consequences of environmental criminal behavior.
        Under tiie Sentencing Guidelines for individual defendants, which became effective on
November 1, 1987, convicted environmental offenders  now face, in most instances, stiff and often
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        459


lengthy jail terms  and substantial criminal fines. The Sentencing Guidelines for organizational
defendants, which became effective on November 1,1991, empower U.S. judges to Issue remedial
environmental cleanup orders,  require community service, and compel the appearance of top
corporate officers a.t sentencing  hearings, among other things.
       Additionally, federal statutes prohibit facilities which are involved in criminal convictions under
the Clean Air Act aid the Clean  Water Act from being used in tie performance of federal contracts,
grants, or loans. This provides a  significant incentive to comply with environmental laws for any entity
that participates in  federal contracts, or receives federal financial assistance.

2.2    Enforcement networking  and outreach efforts

       Experience in investigating  and prosecuting  environmental crimes  has taught EPA that
cooperative efforts are essential in confronting the unique law enforcement challenges associated
with the ubiquitous nature of pollution which, once released to the environment, respects no borders
and defies traditional law enforcement jurisdictions. With this In mind, EPA has done much to promote
structures for extensive cooperation between federal, state,  local and international law enforcement
authorities. Many states,  local police, and other federal law enforcement agencies have become
essential partners  with EPA in  environmental  criminal enforcement. EPA's criminal investigators,
moreover, regularly join task forces composed of specialized federal, state, and local law enforcement
agencies to conduct high profile, multi-jurisdictional Investigations.
       EPA  also provides  substantial grant monies to regional associations comprised of state
enforcement officieJs from almost every state in the nation, as well as several adjacent Canadian and
Mexican jurisdictions.  The primary mission of these associations is to foster the free exchange of
criminal enforcement data and information, and to provide training for state and local environmental
enforcers. EPA similarly provides environmental criminal investigator training for state, local, and tribal
investigators  at the Federal  Law Enforcement Training Center located in Glenco, Georgia, as well as
at other locations across  the United States.
       With an expanded cadre of investigators nationwide, EPA's criminal program has been able
to further enhance its outreach efforts. OCE now engages in enforcement networks at the international
level. Exemplifying this trend, OCE's Director headed the United States delegation to the international
police organization INTERPOL's working group on environmental crime in September, 1993. He was
subsequently elected Chairman  of INTERPOL's work group  on transboundary waste.
       More recently, EPA has  embarked on a program of outreach and education for chiefs of
police, who represent the front line enforcers in any community. OCE's Director currently serves as
co-chair of the International Chiefs of Police Standing Committee on Environmental Crime. Additionally,
OCE has implemented an  Environmental Crime Impact Program designed to identify the regional
environmental crime priorities of more than 30 specified federal, state, and local law enforcement
officials and agencies. OCE intends to use this information, as well as the strategic analysis of EPA's
data bases, to defsrmine appropriate targets for criminal investigation and the best use of available
Investigative resources.

2.3   Recent accomplishments and impacts of criminal enforcement

       Since passage of ttie Pollution Prosecution Act, EPA has more than doubled the number of
criminal investigators,  and achieved a presence in nearly all federal judicial districts. This investment
in criminal enforcement has paid enormous dividends. The criminal program has set new records
virtually  every year in terms of the number of cases initiated,  number of referrals to DOJ  for
prosecution,  number of criminal defendants, amount of fines, years of imprisonment, and value of
environmental improvement projects (see Table 1).
       These dranatlc results have also been highly cost effective for the government for example,
in fiscal year 1992!, the amount  of fines imposed upon  defendants totaled $ 69.4 million, compared
with  OCE's  $8 million  budget that  same  year. Moreover, the deterrence  inherent in these
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460
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Table 1.  Office of Criminal Enforcement, Criminal Investigation Division, Five Year Statistical Comparison
                          Cases
                Agents     Initiated     Referrals    Defendants   Sentences*    Fines**   Other***
FY1989
FY1990
FY1991
FY1992
FY1993
47
51
62
72
110
120
112
150
203
410
60
56
81
107
140
72
100
104
150
161
27.1
75.3
80.3
94.6
74.3
12.2
5.5
14.1
37.9
29.7
NA
NA
NA
6.5
9.8
NA = Not Available
  * Years of Incarceration
 ** Millions of Dollars
*** Millions of Dollars for Community Projects, etc.
Source: U.S. Environmental Protection Agency, Office of Enforcement, Office of Criminal Enforcement

accomplishments has been magnified many times over by newspaper reporting, magazine covers,
and  television stories. All significant industrial sectors have taken note, as evidenced by the attention
paid by their trade associations and law firms to U.S.EPA  criminal enforcement efforts. Also
accompanying  the  rise of criminal enforcement in the U.S., has been a  dramatic increase in  the
number and quality of corporate management efforts designed to improve environmental practices
and  oversight, and  framed so as to mitigate the prospect of corporate  officer criminal liability.
 3     SELECTING APPROPRIATE CASES FOR CRIMINAL INVESTIGATION

       Despite the impressive results of U.S.EPA's criminal enforcement  efforts  thus far,  the
 touchstone of an effective  and fair environmental crimes program remains the identification of
 environmental misconduct truly worthy of criminal sanction. Once it receives reliable information that
 a violation of a federal environmental law has occurred, EPA must decide whether to devote limited
 criminal resources to investigate the charge, or whether the violation is more appropriately the subject
 of Agency administrative or civil judicial remedies.  Even though general  agreement exists that less
 flagrant violations with lesser environmental consequences should be addressed administratively or
 civilly, and that the most egregious environmental violations ought to be  investigated criminally, the
 challenge in practice is to correctly distinguish among such cases.
       When  it passed the Pollution Prosecution Act, Congress not only mandated the steady growth
 of EPA's criminal program, but it also directed the Agency to use its resources wisely by developing
 those cases  with the greatest  deterrent value. (2)  Congressional intent underlying the criminal
 provisions of the nation's various environmental laws, moreover, is unequivocal: criminal enforcement
 authority should target the most significant and egregious violators.
       While targeting the most significant violators has always been a principal goal of the criminal
 program, sometimes in the past, EPA lacked the manpower to invest in unraveling the more complex
 environmental violations  in order to fully investigate the possibility of criminal wrongdoing. That era
 is past. With an established presence throughout the nation, EPA now devotes more of its criminal
 resources to  identify the most significant violators and develop the highest quality  criminal cases
 against them.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          461


3.1    The evolution of criminal case selection

       Since the criminal program's inception, EPA's Office of Enforcement has taken steps to ensure
that environmental violations deserving criminal investigation are identified and brought to OCE's
attention in a timely mamer. Conversely, cases better suited to enforcement approaches other than
criminal are referred to the appropriate cMI or administrative enforcement authority within EPA, or in
some cases, to state or local authorities. In fact, each EPA regional office has in place a process
whereby Agency legal, technical and enforcement personnel review to ensure the most appropriate
enforcement response for each significant enforcement case.
       The fundsunental purpose  of regional case screening, as this process came to be called, is
to consider criminal  enforcement in the greater  context of all available EPA enforcement and
environmental response options, to do so early before extensive resources have been expended, and
to identify, prioritize, and target the most egregious cases. Regional case screening is designed to
be an ongoing process in which enforcement cases are periodically reviewed  to assess not only the
evidentiary developments, but should also evaluate the clarity of the legal and regulatory authorities
upon which a given case is being developed.
       A nationally managed criminal enforcement program cannot, however,  rely exclusively on the
case screening process, which may vary widely from region to region, to maintain the consistency
and quality of its investigations. In order to ensure the undertaking of criminal investigations  which
reflect EPA's priorities and Congressional intent,  OCE must  initially articulate the rationale  which
governs its selection of cases.
        Communicating  the characteristics of environmental violations which  invite criminal
investigation enhances deterrence of  the most egregious violations by  providing notice to the
regulated community and the public at large of where the Agency will employ its most powerful
enforcement tool,
        Moreover,  clear guidance as to which violations merit a criminal investigation improves
communication within the Agency itself. Making OCE's selection  criteria widely known within EPA
helps ensure thai: deserving violations are regularly brought to the  attention of criminal investigators
from the vast number of violations that  are routinely processed by complex regulatory agencies.
        With this in mind, on January 12,1994, OCE issued a guidance which affirmatively established
specific factors that merit EPA's criminal investigation  into environmental violations, using criteria that
promote the Agency's priorities and reflect the Congressional intent behind EPA's criminal program.
(3) These factors will not only guide the criminal case selection process, but will represent the focus
for the targeted use of OCE's investigative resources as well.
        While this guidance is designed to identify misconduct worthy of criminal investigation, this
is not to suggest that all cases meeting the criteria will proceed to prosecution. Indeed, the discretion
of the Agency to criminally investigate a subject must be clearly distinguished, in the American criminal
justice system, from the prosecutor's subsequent discretion on whether or not to proceed with criminal
prosecution, The  decision to investigate criminally,  however,  is an essential  predicate to  DOJ's
subsequent exercise of prosecutorial discretion. Moreover, to the extent that EPA selects targets for
criminal investigation consistent with its Congressional mandate  and the  Agency's priorities, and
conducts thorough investigations of the most significant violations,  the likelihood of DOJ declining to
prosecute a case should be markedly diminished.

3.2     Criminal case selection criteria

        The criminal case selection criteria set forth in the above-mentioned OCE guidance are  based
on two general measures: significant environmental harm and culpable conduct. These criteria, which
are  designed to identify misconduct worthy of criminal investigation, are not intended to establish
legal sufficiency for prosecution.  Rather, selection under any  one of these criteria represent an
affirmation that OCE has purposefully directed its investigative resources toward deserving targets.
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462                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
3.2.1   Significant environmental harm

       In conformanee with the OCE guidance, the measure of significant environmental harm is
construed broadly to include the presence of actual harm, as well as tie threat of significant harm,
to human health or the environment The following factors are identified in the guidance as indicators
that a potential case may warrant  criminal investigation: (1) actual harm; (2) the threat of significant
harm; (3) the failure to report environmental releases; and (4) a trend or common attitude within the
regulated community towards noncompliance.
       Actual harm is demonstrated by an illegal discharge, release or emission that has an
identifiable and significant impact on human health or the environment. This measure is generally
evident at the time of case selection. The threat of significant harm to human health or the environment
may be demonsfrated by either an actual or threatened discharge, release or emission. This factor
may not be as readily evident, and must be assessed in light of all the facts available at the time of
case selection.
       The failure to report an actual discharge, release or emission within the context of actual harm
or the threat of significant harm will serve as an additional factor favoring criminal investigation. This
is not, however, a stand alone factor. While the failure to report in itself  may be a criminal violation,
EPA criminal investigative resources generally will be targeted towards only those cases in which the
failure to report is coupled with actual or threatened environmental harm.
       Finally, when certain illegal conduct  appears to represent a trend or common attitude within
the regulated  community, criminal investigation may serve as the necessary deterrent to continued,
widespread noncompliance. This is especially true where a single violation may have an insignificant
impact on human health or the environment, but similar violations when considered in their entirety,
may result in significant environmental harm.

3.3.2  Culpable conduct

       As discussed in the OCE  guidance, the measure of culpable conduct is not necessarily an
assessment of criminal intent, particularly since criminal intent will not always be apparent at the time
of case  selection. Culpable conduct, nevertheless,  may be indicated at the time of case selection
based on several  considerations. These include: (1) history of repeated violations; (2) deliberate
misconduct; (3) concealment of misconduct or the falsification of records; (4) tampering with pollution
monitoring or control equipment;  and (5) conducting pollution related  activities without necessary
permits or approvals.
       While a history of repeated violations is not a prerequisite to a criminal investigation, a potential
target's compliance record should always be carefully examined. When repeated enforcement actions
by other authorities have failed to bring  a violator  into  compliance, criminal investigation may be
warranted. Clearly, a history of repeated violations will enhance the government's ability to prove that
a violator was aware of environmental regulations, had actual notice of violations, and then, again,
acted in disregard of those regulations.
       Thus,  although  environmental statutes do not  require proof  that a violator knew of, or
specifically intended to violate the statute  in question,  evidence that violations occurred after an
offender received notice of prior violations, may operate to impute a level of corporate culpability that
warrants a criminal  investigation.
        EPA relies on self-reporting by industries to accomplish its regulatory mission. If reported data
are false, the Agency is prevented from  effectively carrying out its mandate. Accordingly, conduct
indicating the falsification of data will always serve as the basis for serious consideration to proceed
with a criminal investigation. Similarly, the overt act of tampering with monitoring or control equipment
leads to the deliberate production of false data. Such a direct assault on the compliance monitoring
infrastructure which supports EPA's regulatory decisions calls for a criminal investigation.
       Additionally,  EPA's  criminal  enforcement resources will  clearly  pursue those violators  who
choose to ignore environmental requirements altogether and operate completely outside of EPA's
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regulatory scheme. Further, when there is evidence, direct or circumstantial, that a business sustains
itself by conducfing illegal environmental practices,  especially those designed to assist others in
thwarting government regulation, EPA criminal investigation is always warranted,

3.3.3   Additional considerations when investigating corporations

       While the factors previously mentioned apply  equally to individual and corporate targets, the
recent OCE guidance recommends that several additional considerations be taken into account when
the potential  target is a corporation. Under United States law, a corporation is responsible for the
criminal acts of its officers and employees who act within the scope of their employment and in
furtherance of the purposes of the corporation. Accordingly, in a criminal environmental investigation,
OCE's policy is to investigate every individual employee and corporate officer who may be culpable.
Whether the corporate officer or employee personally commits the act, or directs, aids, or counsels
other employees to do so, the corporation is always  liable,
       Corporate culpability may also be indicated when a company performs an environmental
compliance or management audit, and then knowingly fails to promptly remedy any noncompliance
or correct  any  harm done. Notwithstanding this general principal of corporate liability, ERA has a
strong policy encouraging self-monitoring, self-disclosure, and self-correction.  Therefore, a violation
that is voluntarily revealed, but fully and promptly remedied as part of a corporation's comprehensive
self-evaluation program generally will not be a candidate for scarce criminal investigative resources.
 4      FUTURE DIRECTIONS

        Together with EPA's other enforcement offices, regions, and our state and local enforcement
 partners, EPA's criminal enforcement program will continue to move toward larger, targeted cases
 against egregious environmental violators. To this end, OCE has commenced a significant data base
 project designed to identify individuals and corporations in the regulated community who have been
 the  subject  of repeated civil and administrative enforcement actions and continue to violate
 environmental laws. OCE will focus more of its investigative resources on such companies.
        One  of the hallmarks of EPA's enforcement program in the 1990's has been strategically
 targeted "enforcement initiatives", whereby EPA focuses the tools in its  enforcement arsenal at a
 selected high priority problem simultaneously, The purpose of this concerted approach is to achieve
 greater impact, in terms of both overall enforcement remedies and public attention, in redressing the
 environmental harm to that  area.  Initiatives  have been successfully brought to concentrate
 enforcement.!© protect a particular geographic area or an identified ecosystem, to deter the illegal
 use of a particularly dangerous pollutant, or to deter violations  by a specific industrial sector that
 threatens unusual environmental harm. OCE has been and will continue  to play an increasingly
 significant role in EPA's enforcement initiatives.
        EPA's criminal enforcement program will continue to emphasize and improve the enforcement
 networks that reach every municipality and extend beyond our national borders. In addition to building
 alliances with other nations and international organizations, OCE is stepping up its efforts to work
 with state and iccal officials. The office is consulting with state attorney generals and local officials
 to explore ways in which OCE can better collaborate to fight environmental crime. Training, information
 sharing and  join! operations are just three of the areas being explored. In this time of scarce public
 resources, it  is more important than ever that government entities at all levels work effectively together.
 The EPA criminal program is committed to that effort.
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464                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
S      CONCLUSION

       Thus, the future direction of EPA's criminal program reflects the basic tenets which have been
the foundation of our success thus far: improving outreach and the capacity to focus on violations
which pose the most serious threat of harm to human health and the environment. The achievements
of EPA's criminal enforcement effort can be directly attributed to the support of the American people
and the commitment of their representatives in the United States Congress. While each Nation's
enforcement processes will evolve distinctively, it is hoped that this discussion of how ttiese
fundamental principals continue to shape the development of EPA's criminal program in the United
States may have wider application.
       REFERENCES AND ENDNOTES

1. Pollution Prosecution Aci: of 1990, Statement of Congressional Purpose (S.2176). Report 101-336,
   101 Congress 2nd Session,

2, Pollution Prosecution Act of November 16,1990, Public Law No, 101-593, 42 USC 4321.

3. Memorandum from EPA's Director of Criminal Enforcement dated 1-12-94 entitled: The Exercise
   of Investigative Discretion. This memorandum is intended only as internal guidance to EPA. It is
   not intended to, does not, and may not be relied upon to, create a right or benefit, substantive or
   procedural, enforceable at law by a party to litigation with the United States, nor does this guidance
   in any way limit the lawful enforcement prerogatives, including administrative or civil enforcement
   actions, of the  Department of Justice and the Environmental Protection Agency.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        465


THE ROLE OF THE INSPECTORATE FOR THE ENVIRONMENT IN TRACING
ENVIRONMENTAL CRIME IN THE NETHERLANDS

ZEBEN, DERK JAN van and PLAS, JAN van der

Environmental Assistance Team of the Inspectorate for the Environment of the Ministry of Housing,
Spatial Planning and the Environment (VROM), Willem Witsenplein 6,2596 BK 's-Gravenhage, The
Netherlands


       SUMMARY

       This paper addresses the role of the Inspectorate for the Environment in tracing environmental
crime in the Netherlands.
       Since 1985 a large number of staff members of the Inspectorate for the Environment have
assisted the police in  tracing complicated forms  of environmental crime  in particular. The
Environmental Assistance Team is a work association within the Inspectorate for the Environment
composed of about a hundred Inspectorate employees. Besides their regular work for the Inspectorate
these people can be brought into action either part time or full time to support the police in tracing
regional or national forms of  environmental crime. The form and content of this support is further
explained in this paper.


1      HISTORY OF THE ENVIRONMENT ASSISTANCE TEAM

       As  a division within the Ministry of Housing,  Spatial  Planning and the Environment the
Inspectorate for the Environment is subdivided into a number of Regional Inspectorates and the Chief
inspectorate. The Environmental Legislation Enforcement Branch comes under the Chief Inspectorate
for the Environment and consists, among other groups, of the division Monitoring Waste Substances,
the division Monitoring Substances, Radiation and Products, and the Environmental Offences division.
The Environmental Assistance Team comes under the Environmental Offences division.
       In the Netherlands investigating environmental crime is conducted by the police, who are
supported  in this by the Environmental Assistance Team of the Inspectorate for the Environment of
the Ministry of Housing, Spatial Planning and the Environment (VROM).
       The Environmental Assistance Team was set up 1 February 1985 to promote the environmental
crime control. The establishment of this team was a consequence of the environmental scandals
involving hazardous waste which had been come to light in the first half of the 1980s. It turned out
that compliance monitoring and  tracing according to the Chemical Waste Act (1979) failed
considerably. The investigation committee formed as a result of this finding, advised the Ministers of
Justice and Environment, among others, to appoint a group of experts operating on a national level
and specialized in criminal conduct. Also on the  basis of this advice the Minister  of VROM, in
consultation with his colleague, the Minister of Justice, decided to set up the Environmental Assistance
Team.
       Instead  of an independently operating criminal investigation agency, a supporting unit with
expert knowledge of environmental affairs was decided  upon. The advantage is that the police are
always involved when enforcing environmental legislation. An independent environmental investigation
team does not stimulate other partners to enforce environmental legislation.  It is precisely the strongly
regional aspect of the infringements  of  environmental  legislation  that pleads for embedding
investigations within the regional police  in the 25 police regions.
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2      TASK OF THE ENVIRONMENTAL ASSISTANCE TEAM

       The Environmental Assistance Team must support criminal investigations. Support is given to
the police, the Public Prosecutors, and other investigation agencies. Support consists of providing
specialised knowledge and technical equipment, as well as offering the assistance of laboratory and
research facilities.
3      WHEN IS THE ENVIRONMENTAL ASSISTANCE TEAM CALLED IN?

       According to the formation decree for the Environmental Assistance Team (dd. 1 February
1985),  the Team is  brought into action at the Public Prosecutor's request.  Usually, this will be the
case in environmental crime of a more complicated character; for example, an environmental crime
network involving a large number of people or businesses, In these cases, offences are in general
commmitted which  have been qualified as criminal offences. If the Environmental Assistance Team
cannot provide sufficient support and a choice must be. made between two investigations, the
environmental yield will determine to a large extent to whom support is given.
4     COMPOSITION, INVESTIGATION COMPETENCE, AND MANAGEMENT OF THE
       ENVIRONMENTAL ASSISTANCE TEAM

       The Environmental Assistance Team is composed of a staff with specialised knowledge
(college level) in the following fields: process technology, chemistry, management and legal affairs,
environmental  protection, investigation tactics,  business administration,  and environmental
accountancy. Such a diversity in specialisms offers the opportunity to assist, as effectively as possible,
in any criminal case. Another important function of the Environmental Assistance Team is that it has
a special information position. As a working association within the inspectorate for the Environment
operating  on a national level, the Environmental  Assistance Team has at its  disposal not only
information from the monitoring activities of the Inspectorate but it also has a national insight into
administrative enforcement.
       The Minister of Justice has granted  general  investigation power for  the whole of the
Netherlands to the Environmental Assistance Team.  Members of the Environmental Assistance Team
act as investigation officers in police teams formed ad  hoc to offer support either full time or part
time in tracing (complicated) environmental crime.
       Responsibility for the Environmental Assistance Team rests with a former public prosecutor
and a former police inspector. The Inspectorate for the  Environment has deliberately chosen these
officials in order to guarantee the link required for the network of police work and public prosecution.
 5     INITIAL EXPERIENCES OF THE ENVIRONMENTAL ASSISTANCE TEAM

       Since its formation in 1985 the Environmental Assistance Team has been specifically brought
 into action following the decision to give priority to the enforcement of the Chemical Waste Act (WCA),
 Because enforcement of environmental legislation in the Netherlands during 1984 and 1985 was still
 in its infancy, attention was mostly focused on national "scandals" in those years, since regionally
 and locally there was no clear insight yet into either regional or local environmental crime.
       Therefore,  during the first period after its  foundation the Environmental Assistance Team
 engaged almost  exclusively in serious national forms of environmental crime. Frequently, the
 Environmental Assistance Team took the initiative instead of keeping to its supporting task. In this
 period it became clear that it was necessary to provide financial means and equipment in order to
 obtain the cooperation of the police while carrying out investigations.
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6      DEVELOPMENT WITHIN THE POLICE

       As a resul't of the structural provision of funds from the Dutch National Environmental Policy
Plan (1990-1992), police and Justice have become more active in combating especially regional and
local forms of environmental crime. Consequently, the police have made a greater demand on the
Environmental Assistance Team in tracing these forms of environmental crime in particular. The result
has been that the Environmental Assistance Team has had less time to promote the investigation of
national forms of environmental crime,
7      THE ENVIRONMENTAL ASSISTANCE TEAM CHOOSES PRIORITIES

       A report of the Investigation Advisory Committee of the Ministry of Justice (September 1992)
states that the  waste issue remains a major  source of organised, supra-regional forms of
environmental crime. Moreover, it is pointed out that the control of supra-regional and international
waste crime is failing because a coordinated approach Is lacking and information Is provided
fragmentarily. Furthermore, It is stated that although the activity of the Environmental Assistance Team
provides an important incentive for dealing with  serious environmental crime,  effective control of
national and international  environmental crime demands that justice, police, the Inspectorate for the
Environment, and administrative authorities cooperate more  closely and systematically.
       As  a result of this report the Minister of  Justice has appointed the "project-team serious
environmental crime" by order of 30 March 1993. This project-team consists of representatives from
Public Prosecution,  the police, the Central Investigation Information Office, and the Environmental
Assistance Team. Its main task is coordinating and stimulating supra-regional activities, especially in
the field of processing and disposal of waste.
       In 1992 the task of the Environmental Assistance Team  was reconsidered as a result of the
aforementioned developments, which has led ,to a readjusted strategy.  The new strategy differs in
that the Environmental Assistance Team will give increased priority to national forms of environmental
crime. Consequently, less time will be available for supporting the regional police to control typically
regional or local forms of environmental crime. The Inspectorate for the Environment will promote
assistance on a local and regional level by furnishing, for instance, environment experts of provincial
and municipal authorities.
       In this new strategy the Environmental Assistance Team makes a distinction between:
       »  National investigation ass/sfanee.  In cases of serious, supra-regional forms of
          environmental  crime,  the  Environmental Assistance  Team offers environmental
          assistance in combination with legal and investigative tactical assistance to the
          police and Justice. This assistance is  organised centrally and nationally by the
          Chief Inspectorate for the Environment in The Hague.
       «  Regional investigation assistance.  This assistance is provided by members of the
          Regional Inspections for the Environment and  concerns assistance with regard to
          environmental and legal expertise in cases of typically regional and local forms of
          environmental crime.
       «  Reporting, This means reporting violations of environmental legislation detected in
          progress.  These activities  are carried out  by members  of the  division  on
          Compliance Monitoring Waste Substances, the division on Monitoring Substances,
          Radiation and  Products, and the division  on Pest  Control, and the Regional
          Inspectorates.  It concerns violations in progress as established by Inspectorate
          officers! carrying out their monitoring tasks (Toxic Substances Act, for instance, CFK
          and Cadmium  Resolution, Regulation on Import, Export and Transit of Hazardous
          Waste, Pesticides Act,  Nuclear  Energy  Act). Considering  the highly  specific,
          technically difficult character of these regulations,  investigation of such offences is
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468                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         not conducted by the police but carried out independently by the Environmental
         Assistance Team.
8      PROCEDURE OF THE ENVIRONMENTAL ASSISTANCE TEAM

       The typical method of working for the Environmental Assistance Team when investigating
serious environmental crime is that it  participates actively and usually full time in multidisciplinary
police teams often formed ad hoc to carry out the investigation. In order to use manpower as efficiently
as possible, investigations are conducted in a structured way. We distinguish a number of phases.
After each phase a decision is rnade in consultation with the police and the Public Prosecution about
whether it is justified and advisable to  start the next phase.
       In order to conduct the preliminary investigation and the criminal  investigation, each time a
written cooperation agreement is drawn up between police, other participating agencies, Justice, and
the Environmental Assistance Team. In this agreement the objectives, the availability of people, means,
equipment, and duration of the investigation are included.
       We distinguish the following phases.
       •  The information  investigation. In this phase,  during a period of six weeks at a
          maximum, a  tip received or an indication resulting from  analysis of  available
          information is followed up for reliability  and  environmental  relevance. The
          information investigation is concluded with a written report, which  determines the
          decision whether to continue or not.
       •  The preliminary investigation. This is concentrated primarily on gaining and verifying
          any further information and making contacts with relevant authorities, experts, and
          agencies. Preliminary investigations are carried out by a small team in cooperation
          with the police. Participation of the Environmental Assistance Team can vary from
          providing purely environmental technical advice to providing active technical and
          tactical support.
       »  The criminal investigation. In this phase, the criminal investigation is conducted by
          a multidisciplinary investigation team.  This investigation almost invariably  starts
          with a search  to  seize  the business administration  in combination  with  an
          environmental technical investigation on location of the  infringement. In  order to
          rubricate and read the administration seized, computer programmes are used
          which  have  been  specifically designed  for  this purpose. In  this phase the
          procedure is  carried out thematically.  Early on in  this phase the projects to be
          investigated are defined in consultation with the Public Prosecutor. In general, the
          investigations have the character of an investigation into fraud, in addition to which,
          for some time now, attention has also been given to depriving illegally  derived
          advantage. Only 'when all projects have been investigated, are  suspects detained
          and questioned. The investigation  is  subsequently  concluded with a  so-called
          business written report.  The projects that have been  investigated are classified in
          separate business files; also, personal files are kept so that it is  clear which
          suspect is involved in which case.
       •  The aftercare phase. During the preceding phases it may turn out that action can or
          must be taken in the field  of administrative law or  criminal law.  The necessary
          actions are laid  down in an  aftercare programme, which in most cases is carried
          out by a  Regional Inspectorate for the Environment  in cooperation with the
          competent administrative authorities. In this phase, specific problems with regard
          to the  enforcing of regulations are also set down in a "bottleneck" memo, which is
          subsequently brought up for discussion by the Chief Inspector for the Environment
          in the regular consultation meetings with the policy officials concerned with  the
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         469


         Directorate-General for Environment Management  of  the  Ministry of Housing,
         Spatial Planning and the Environment (VROM).


9      THE SURPLUS VALUE OF THE ENVIRONMENTAL ASSISTANCE TEAM

       The surplus value of the Environmental Assistance Team lies foremost in the field of expert
operational support of the police, because in any criminal case the Environmental Assistance Team
can offer tailor-made assistance as a result of its broad and varied composition (see Section 4),
However,  the surplus value of the Environmental Assistance Team is also derived from the
circumstance that it is a working association of staff members of the Inspectorate for the Environment
that conducts its investigation activities in conjunction with its other inspection duties. The most
important of these duties are the monitoring of the waste streams policy and the supervision of the
implementation of the  Toxic Substances Act.
       « Monitoring waste streams deals both with compliance monitoring of transboundary
         shipments  of  hazardous waste  and  the  so-called chain-monitoring  waste
         substances. The chain-monitoring of waste substances is aimed at investigating
         and registering thematically the origin, transport, processing, and disposal of a
         specific waste stream  in  order  to  ensure that certain  waste  streams are
         transported,  processed,  and  disposed  of  legally,  efficiently,  and  in  an
         environmentally safe manner.
       • The supervision of the implementation of the Toxic Substances  Act  consists of
         upholding the various Ministerial Orders, such as  the CFK-Resolution.
       Because of  these monitoring tasks, the staff  members  have a great  deal of up-to-date
information about people and companies at its disposal, which in practice turns out to be of great
value in investigations into  illegal  environmental activities. This information is the staff members'
stock-in-trade when  they assist  in an investigation.
 10    COOPERATION OF THE ENVIRONMENTAL ASSISTANCE TEAM WITH OTHER
       INVESTIGATION AUTHORITIES

       An investigation usually involves various authorities, such  as  the Public Prosecution,  the
 Judicial  Laboratory, the Central Investigation Information Office, the  police, and the supervising
 authorities (provinces, municipalities,  district water boards, Department of Public Works, and  the
 Inspectorate for the  Environment).  Adequate investigation  demands good cooperation. This
 cooperation is necessary to combine  proper expertise on the one hand and to prevent overlapping
 efforts and competence conflicts on the other. Therefore, Uie  Environmental Assistance Team has
 made structural working agreements with various investigation partners.
       For instance, working agreements have been made with the division on Environmental Crime
 of the Central Investigation Information Office. The Central Investigation Information Office (Justice)
 is assisted in the collecting, analysing, and registering of confidential environmentally criminal
 information by an investigator of the Environmental Assistance  Team. This investigator is the liaison
 officer with regard to criminal information between the Inspection for the Environment and the Criminal
 Investigation Offices of police and Justice.
 11    TRANSFER OF KNOWLEDGE TO THE POLICE

       In order to give other investigation officers access to knowledge about how to approach
 environmental crime,  a loose-leaf "Handbook of the Environmental Assistance Team" has been
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470                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
compiled. This handbook contains, along with other information, examples of written reports,
contracts, scenarios for searches and technical investigation, safety procedures, and agreements
about the provision of information. In addition, video recordings are sometimes produced after a
criminal case so that the criminal modus operand! can also be explained audiovisually.


12     EDUCATION PERMANENTE

       Members of the Environmental Assistance Team are expected to have a high and up-to-date
level of knowledge. This is provided by a training scheme (Education  permanente) developed
especially for the Environmental Assistance Team. There is a new, extensive introduction programme
for new staff members in which skills such as sampling are further perfected.
13     EXAMPLE OF A CRIMINAL INVESTIGATION

13.1   Background

       Recently a large-scale investigation in the field of environmental fraud has been started. In
the years 1989 to  1990 the Public Prosecution received a large number of written reports (42) made
on violations pertaining to the Surface Water Pollution Act (Wvo) versus the suspected company. In
nearly all cases, the Public Prosecution offered a transaction to the suspect, which was accepted. In
1991  and 1992 eight reports pertaining to the same facts were made and settled by transaction. In
1992 a report was made against the same suspect for obtaining a permit from ttie Minister of VROM
to export hazardous waste to  France with the use of forged analysis data. This permit concerned the
export of 1500 tons, at the maximum, divided among 65 transports. 1b transport this waste to France,
forged transport documertts (EC documents) were used. Considering the foregoing, it was presumed
that the  suspected  companies structurally violated environmental  legislation  and the communal
criminal law,

13.2   Information investigation

       In order to unravel this case, an information investigation was started. All available information
gained from various sources was analysed and clarified.  On the basis of these date, a report of
findings was drawn up and  offered to the Public Prosecutor,  who decided to start a preliminary
investigation.

13.3   Preliminary investigation

       A multidisciplinary investigation team of 25 people was formed consisting of personnel from:
       • The Municipal Police Rotterdam
       • The Municipal Police Amsterdam
       • The Environmental Assistance Team
       • The Criminal Investigation Department of the Ministry of VROM
       • The Central Investigation Information Office
       • The Fiscal Information and Investigation Office
       • The Tax Office in Amsterdam
       A police inspector, assisted by a coordinator with technical environmental knowledge and a
coordinator specialised in investigation tactics from the Environmental Assistance Team, was charged
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         471
with the day-to-day management of the team. A contract pertaining to this investigation was signed
by ali participating agencies and the Public Prosecution (see Section 8).
       This preliminary investigation took about 10 months. During this period a complete analysis
was carried out as to the permit situation of the suspected companies, the notified transports, and
the companies' financial position. Furthermore, dumping conduct was followed with the aid of modern
techniques—obseri/attons took place and transports were checked. Whenever possible, project files
of criminal offences? to be investigated were made. A report of findings was drawn up subsequently
and offered to the Public Prosecutor, who decided on a criminal investigation.

13.4   Criminal investigation

       For this purpose a preliminary judicial inquiry was started (an investigation by a judge of
instruction, who has additional competency with regard to search and seizure). In December 1993 a
raid was carried out on the suspected companies. About 250 investigation officers took part in this
raid. The Environmental Assistance "feam of the VROM participated with 45 members. Searches led
by judges of instruction from Rotterdam, Amsterdam, and Groningen were carried out at 13 locations
in the Netherlands and Belgium. On this occasion business administrations were seized. At 4 locations
technical environmental investigations were carried out by the Environmental Assistance Team. This
kind of investigation is led by a  technical coordinator of the Environment Assistance Team who has
a number of sampling teams at his disposal. These sampling teams consist  of 3 to 4 people and
are led by an environmental staff member.
       Following the search and the environment technical investigation, an inventory and an analysis
of the data obtained are made.  On the basis of this information, the  project files to be investigated
are compiled definitively and in consultation with the Public Prosecutor. It is to be expected that after
completion of the project files, witnesses and suspects will be questioned in the spring.
       Preliminary findings show  that the suspected  companies structurally  violated the Pollution
Surface Water Act; that is to say, they dumped hazardous waste in surface water although permits
had not been granted at all.
       The companies accepted a number of hazardous waste substances. These substances either
cannot be processed in the existing plants or may not be processed according to the Wvo-licences
granted. Because these dangerous wastes were not handed over  to other licence holders, it is
suspected that illegal dumping  c.q.  illegal export of hazardous waste to other countries has taken
place by means of false c.q, forged  (EC) documents.


14    RESULTS 1991  AND 1992

       Other than tie criminal investigation presented as an example, the following activities resulted
in 1991 and 1992.

Table 14.1.  Actions of the Environmental Assistance Team in 1991 and 1992

                                                   1991         1992

            Number of cases handled                     12           15
            Number of man-days spent                 3022         3200
            Number of preliminary investigations             11           39
            Number of Information investigations             80          132
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472                           THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Table 14.2.   Survey Convictions "MBT-cases" in 1991-1992

Case   Offence              Conviction                                                 Appeal

91/1     Penal Code           2 years unconditional, 1 year conditional                        Yes

91/2    Chemical Waste Act  . / 630,000 fine; 11/a years unconditional; 6 months conditional     Yes
        and Penal Code

91/3    Chemical Waste Act   Settlement: amount dependent on the sanitation costs to be       No
                             paid by suspect

91/4    Chemical Waste Act   / 1S.OOO fine and special condition of soil sanitation             No
        and Waste
        Substance Act

91/5    Toxic Substances      / 240,000 fine for company; / 11,250 fine and 2 months         No
        Products Act          conditional for director

91/6    Penal Code,          Settlement of / 250,000, environment-audit of / 50,000           No
        Chemical Waste Act

        Penal Code           / 400,000 fine for company; 18 months, of which 6 months       Yes
                             conditional for director
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                    473
                   SPECIAL TOPIC WORKSHOP
               Enforcement at Government-Owned
                        or -Operated Facilities
 1.  Enforcement of Environmental Laws at Government-Owned Facilities: Some
    Theoretical and Practical Considerations, E.F. Lowiy	,	475
See related papers from other International Workshop and Conference Proceedings.

 1. Enforcement of Canadian Laws of Environmental Protection as Applied to Federal Facilities,
    R Cuillerier, Volume I. Budapest, Hungary

 2. Enforcing the Law at Government Owned or Operated Facilities, A, Homonnay, Volume I,
    Budapest, Hungary

 3. The U.S. Environmental Protection Agency's integrated Compliance by the Federal
    Government, I McCall, Volume I, Budapest, Hungary
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474                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        475


ENFORCEMENT OF ENVIRONMENTAL LAWS AT GOVERNMENT-OWNED
FACILITIES: SOME THEORETICAL AND PRACTICAL CONSIDERATIONS

LOWRY, EDWIN F.

Deputy Attorney General, California Department of Justice (1), Division of Public Rights, Environment
Section, 1515 K Street, Sacramento, CA95814


       SUMMARY

       Enforcement of environmental laws at government-owned facilities is discussed primarily from
the perspective of state enforcement at  national government facilities. The paper focuses on the
impact of the Federal Facilities Compliance Act of 1992 (FFCA). Three general principles are proposed
and analyzed in relation to realities encountered in California's enforcement experience. Some
tentative conclusions drawn from the first year of the FFCA are proposed.


1      INTRODUCTION

       In one sense, enforcement of environmental laws at government-owned (2) facilities is not
significantly different from environmental enforcement of the private sector. Federal law now requires
there be little difference. By waiving the government's sovereign Immunity from fines and monetary
penalties, the Federal Facilities Compliance Act of 1992 (FFCA) (3) stripped the government of the
most important acdvantage it  alone enjoyed in the regulated community. Before enactment of the
FFCA, state and local enforcement agencies  could seek injunctive relief against the  national
government, but  their efforts lacked teeth. Monetary penalties  (in the form of contempt) were only
available in the event the government refused or failed to obey a court order. By enacting the FFCA,
Congress declared that the federal government, insofar as management of hazardous and solid waste
is concerned, is now subject to the same fines and monetary penalties that everyone else faces.
       Yet, enforcement of environmental laws  at government  facilities is  unique. It is  different
because the govemment is different. Even bringing the federal government fully within the enforcement
arena, subject to monetary penalties, required a special law (the FFCA); and even this law, because
it was  compromise legislation, created limited exemptions to immediate enforcement that  relate to
federal managerrant of munitions waste, mixed radioactive waste, and waste generated on ships.
The unique nature of regulating the sovereign's activities by a lesser sovereign (e.g., a state) leads
us to approach enforcement with  a different mind-set than we do with private-sector enforcement.
With the FFCA, we are now in uncharted waters,  armed for the first time with effective sanctions to
enforce the requirements of the nation's most sweeping pollution-control law.
       In this papier, I outline three general principles concerning enforcement at government-owned
facilities. These principles are followed by a discussion of real-world attributes which necessarily mesh
with and temper  Ihose principles.  Finally, some tentative conclusions  for discussion are  presented.
This paper draws on the author's experience and focuses  primarily on state government hazardous
waste law enforcement against the United States. Particular attention is directed to the FFCA, since
it is under this law that significant enforcement actions will be  taken. It is hoped that the principles
and realities discussed might have application elsewhere (4).
 2     THE FEDERAL FACILITIES COMPLIANCE ACT

       One cannot discuss a federal enforcement policy without a rudimentary understanding of the
 history of the FFCA.
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476                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       The FFCA was enacted in direct response to unsuccessful attempts by states to subject the
federal government to monetary penalties for environmental mismanagement. Various states argued
that existing law waived the government's immunity from penalties. With respect to hazardous waste,
they argued that sweeping language in RCRA holding the government subject to all substantive and
procedural requirements of federal, state, and local laws meant that Congress intended penalties be
assessed when federal agencies violated the law. In particular, they pointed to the language in section
6001 of RCRA (42 U.S.C.  § 6961) that the federal government

       "shall be  subject to  and comply with  all Federal,  State, interstate, and local
       requirements, both substantive and procedural (including any requirement for permits
       or reporting or any  provisions for injunctive relief and such sanctions as may be
       imposed by a court to enforce such relief)... in the same manner, and to the same
       extent, as any person is subject to such requirements., ."

       Results of the various states'  efforts were mixed,  but generally negative. The Ninth Circuit
Court of Appeals said no to Washington, in United States v. Washington 872 F2d 874 (Ninth Cir, 1989),
thereby effectively stalling attempts by California (also a Ninth Circuit state) as well. The Tenth Circuit
thwarted New Mexico's attempts in MKzelfett v. Department of Air Force 903 F.2d 1293 (10th Cir. 1990).
The State of Ohio, seeking to alleviate conditions at the Department of Energy's uranium processing
plant  in Femald, succeeded partially in the Seventh Circuit, which held that Congress had waived
federal sovereign  immunity  in RCRA's citizen-suit section, but not in its federal-facilities provisions
(5). Ohio's limited victory was short lived, in OWo v. United States Department of Energy 503 U.S.	,
112 S.Ct. 1627,118 L£d.2d 255 (1992), the Supreme Court determined, through a close analysis of
the language in  RCRA and  the Clean Water Act, that Congress did  not explicitly waive the
government's immunity from penalties. Accordingly, they  were unavailable  to the states and  local
governments.
       However, pro-penalty proponents were active in Congress while they were losing in the courts.
The National Association of Attorneys General (NAAG) made the FFCA a legislative  priority.
Proponents of the  legislatfon argued that penalties were the only way to prod the government into
compliance. They argued that then-existing penalty provisions available to the states (e.g., section
118 of the Clean Air Act, 42 U.S.C.  §§ 7401-7626) had not been abused, and that federal agencies
would respond in an environmentally  positive manner when agencies faced fines as the alternative
to compliance.
       Opponents argued  that taxpayers should not be forced to compound the errors of their
government by paying penalties. They contended that the legislation would give opportunistic states,
through enforcement actions, the power to reset priorities. Under this scenario, they argued that the
likely  result would be that limited available funds would be channeled to those places where
pressed their litigation, instead of to where the monies were needed most. They further argued that
in some areas, immediate compliance with the law was impossible, and passage of legislation would
simply be an invitation to states to line their pockets at the expense of the federal treasury.  Instead,
they proposed compromise legislation which would have set up a system to "prioritize"  work at
facilities which were not in compliance.
       After an unsuccessful attempt in the 101st Congress, where legislation passed the House but
stalled in the Senate, NAAG's pro-penalty efforts succeeded in the 102nd. Barely seven months after
the Supreme Court spoke in United States v. Ohio  (supra), Congress passed and President  Bush
signed the FFCA. Although the FFCA unambiguously waived the federal government's immunity from
penalties (6), it temporarily exempted munitions, mixed nuclear, and public-vessel wastes.
       The question now is how the states should take advantage of this long-sought enforcement
tool.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         477
3      SOME BASIC PRINCIPLES

       Three principles can be proposed  as underlying an  approach to local enforcement of
environmental laws at government-owned facilities.
        First, tho federal government is capable of, and does commit, as large and as serious a
universe of violations as are committed by anyone else. In the United States, the size of the federal
facilities, the dangerous nature of the materials with which they have dealt, and a historical mind-set
that compliance is meant for others have all created a backlog of cleanup responsibilities which will
take over 30 years and billions of dollars to remedy. Even with a new mind-set and direction, there
is no reason to believe that the government is suddenly incapable of committing serious environmental
violations.
       Second, the government should be treated in a  manner similar to private industry or other
parties. As noted  in the Introduction, the law requires it. Not only is the federal government, by and
large, subject to the same laws as anyone else under the  Clean Water Act, the FFCA, and other laws,
but other provisions of law protect the federal government from being singled out by a state. RCRA
states that the federal government is subject to state and local requirements "in the same manner,
and to the same extent, as any  person is subject to such requirements," and nothing more. Since
any waiver of sovereign immunity must be  explicit and  unequivocal,  never  implied  (7),  the
government's sovereign immunity waiver in this case  "in  the same manner and to the same extent.
as any person is subject" cannot ever subject the United  States to more stringent requirements than
those faced by .any other entity. Finally,  although there  is some question concerning whether the
amount of taxpayer dollars extracted from the federal government by  other enforcement agencies
should be as  high as penalties collected from the private sector, there is  nothing to  indicate that
Congress intended any other result (8).
       The third principle (arguably subject  to more debate since, from the perspective of national
regulation, not all  legislatures have spoken on the subject) is that state and local governments should
be treated in the same way that the federal government is— and that is just like everyone else. States
and local  governments are "persons" under RCRA (42 U.S.C. § 6903(15), and in California, they are
similarly defined (Cal. Health & Saf. Code § 25118).
 4     REAL WORLD EXPERIENCE AFFECTING ENFORCEMENT ACTIONS

       The principles delineated above mesh with and are modified by the real world experience. In
 California, our experience leads to observations concerning five subjects.
       First,  litigation (9) against the United States is different and vigorous. It is different because
 the federal government's interests in litigation are different. A private enterprise's paramount interest
 generally consists of protecting its purse and good name. Litigation involving the United States brings
 in other  concerns. Certainly, the federal facility involved has an  interest in protecting its budget.
 However, mysteries and features of the budget process introduce their own wrinkles. For example,
 an agency may prefer to be represented by the Justice Department (which generally enters a case
 when it is filed in court, as opposed to an administrative forum) because  in those  circumstances,
 litigation costs iire not  necessarily  borne by the  installation. Moreover, even  though the federal
 government may agree to do certain things, its representatives consistently argue that they cannot
 commit to  spend money which has not been authorized by Congress. They generally request that
 the  entity  bringing the  enforcement action acknowledge in any settlement  document  that the
 Anti-Deficiency Act, 31 U.S.C. § 1341, may prevent payment of fines and penalties, or indeed, initiation
 of environmental cleanup work if the money is not appropriated by Congress. The state plaintiff may
 be able  to identify money in a discretionary fund of the agency or installation, just as it may be
 necessary to confirm the existence of funds in a private defendant's bank account. Failing this, it may
 be that the best that can be hoped for is a carefully worded promise  by the agency to see that the
 Executive Branch requests the money from Congress. Drafting the appropriate language to see that
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478                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
the item does not stall on its way to Washington, or in the halls of the Pentagon, the Office of
Management and Budget, or elsewhere, requires creativity and skill.
       Special considerations in resolving cases go beyond financial interests. The language in any
particular settlement document is not only scrutinized by the agency for precedential value as it relates
to the particular installation or agency, but the Justice Department in  particular reviews a settlement
for any precedent it may have in cases involving other federal agencies. In this author's experience,
there appears to be within the Justice Department a view that its mission is not necessarily to interpret
the law most reasonably, or to discern the will of Congress. Instead, its role is to interpret it in the
most restrictive manner possible. That is, if there is any ambiguity in a statute as to what it commands
the United States to do or how it applies to the United States, the Justice Department will generally
take the most restrictive interpretation or argue that the law does not apply to it. This restrictive view
is sometimes, but not always, the position of the agency.
       Second, the United States will find as many reasons to excuse its conduct as private parties
do.  Some  will be the same—e.g., the law was  ambiguous, the violation  was  an oversight, no
environmental damage  occurred,  and so forth.  Others will focus  on the nature of ttie  federal
process—e.g., our people are  limited to a two-year tour of duty; we're a training base, and the
violations were really created by a detachment here from South Carolina, etc. This point is obvious
and, perhaps, tautological, The lesson to be drawn from it is that the government admits fault and
shifts blame in the same manner that private parties do.
       Third, the use of taxpayer dollars for penalties inevitably affects  the charging and  settling
process. Where the money goes also has an impact. Although Congress has rejected the argument
that demanding penalties from the  government only penalizes the taxpayers, it seems that those of
us in the enforcement business nevertheless recognize that there may be a different level  of pain
associated with identical penalties when one entity being punished operates at a profit, and the other
is a government agency. Indeed, since one purpose of assessing penalties is to deprive tiie violator
of profit derived from the violations, it can be argued that penalties will naturally be  lower since the
government (which is a non-profit entity) will have derived no profit from a violation. In a similar vein,
the use of environmental credits in lieu of penalties may be more appropriate against a government
agency defendant (10).
        Fourth,  political considerations against large federal facilities can and may still enter the
process. Large federal installations are a major economic force within their communities. California,
which benefited disproportionately from the defense buildup of the 1980s now is suffering more than
its per capita share  of economic pain in base closures. More,  as yet unannounced, closures are
predicted. Whether a "get-tough" environmental  enforcement action against a base which could be
on the next hit list would tip the balance in the Pentagon Is conjectural. What is likely,  however, is that
those who enforce the law and seek significant penalties cannot help but wonder whether their action
will persuade  military  management that  a  particular base in, say, California, should be
decommissioned in favor of one remaining in another state. Whether this should be a concern is a
policy question that  needs; to be addressed by those charged with  enforcement of the law in any
particular jurisdiction.
        The political  factor in the charging and settling process is,  of course, not  limited to  large
federal facilities. Any facility— private or public—can have a significant local or state economic impact.
Moreover, private enterprises can, and have,  threatened to move out of state in the face of significant
enforcement actions. Although charging and settling positions may not have changed in response
to direct threats or predictions in individual enforcement actions, the State of California has moderated
its position on penalties in response to difficult economic times. Insofar as penalty policies are applied
across the board, the military installations have benefited from this moderation. Whether they will—or
should—further benefit from the uncertainties of the base closure process can not  be predicted at
this time.
        Fifth, enforcement actions are, by  their  nature,  adversarial. The regulating agency has
conducted an inspection or other activity and initiated an enforcement  action. The target federal
agency is a defendant. The state, as  the charging entity, is in a position of power,  an unusual role
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        479


for both parties. For some time, the federal agencies, in a manner similar to private industry, came
to enforcement settlement meetings promoting a "partnership" between the regulators (the state) and
those regulated ('tie facility subject to enforcement.)  Indeed, as the likelihood of enactment of the
FFCA increased, California enforcement personnel heard a great deal more about the state-federal
"environmental partnership" than they had  before.  Now that  the FFCA is in  force, the federal
government has an even greater incentive to create a non-adversarial partnership with state regulators.
Nevertheless, RCRA receives its force, by Congressional design, through the threat of penalties. Both
the US EPA and the California Department of Toxic Substances Control have begun significant federal
facilities enforcement projects, which contemplate inspections, enforcement actions, and the potential
for significant penalties.
       What does this mean  for the future  of  environmental enforcement at government-owned
facilities?  Can there be a "partnership"?  Certainly, enforcement will  be different from before. The
federal government will no longer be able to implement compliance at its own speed, pursuant to its
own priorities. To the degree that the ability to enforce through penalties has created a more dominant
state partner in trie state-federal relationship,  it augurs for compliance in areas where the states are
most concerned, assuming they concentrate  their enforcement efforts in those areas. It also means
that the state will retain the role of police officer,  thereby creating a tension in any partnerships that
either side seeks to forge.  On the other hand, it promises that whatever partnerships are formed will
be done on the basis of more equal strengths possessed by the parties.


5     THE CAUFORNIA EXPERIENCE IN THE FIRST YEAR OF THE FEDERAL FACILITIES
       COMPLIANCE ACT

       The Federal Facilities Compliance Act became law in November 1992. At  the time this paper
was drafted, approximately a year had gone  by. The experience in California is necessarily limited,
since an enforcement action often takes more than a year to initiate and conclude. Thus, exposition
of this topic must be brief, and the jury is still out in determining whether the FFCA will be implemented
smoothly, and wi'ti any significant effect.
       Notwithstanding the limited time that the FFCA has been in effect, the general impression is
that the federal government is  being  brought into the compliance universe and is being treated like
other parties. Although a year is probably time enough for insurmountable problems to surface, it
appears that none has. Penalty assessments have covered the range from small field citations to
six-figure assessments. Small cases have settled. Where high penalties have been sought, however,
negotiations hav« been less successful, and these cases remain  on the docket for further negotiation
or trial. This suggests either that the government is a tough defendant, or it may simply be  a function
of the fact that few, if any, cases calling for more than $100,000 in penalties settle without extensive
negotiations.
       We also see that the federal government is reacting to many of the same things that the
private sector worried about when it was brought into the California compliance universe. For example,
the California Department of Toxic Substances Control has,  for several years, insisted that defendants
in civil cases agroe to a contingent admissions clause. That is, a  party is permitted, in settling a case,
to deny the allegations of a complaint, but it must agree that for the purposes of enhancing penalties
in subsequent actions, that the allegations in the action currently being settled will be deemed to
have been admitted at a later hearing on subsequent violations.  This policy protects the party in the
instant settlement, but it also preserves the state's interest in pursuing repeat offenders for  enhanced
penalties. However, it runs contrary to the manner in which most  civil actions are settled in the United
States, wherein a defendant denies liability and pays damages to the plaintiff, who, in turn,  dismisses
the lawsuit. Settlement negotiations concerning the California Department  of Toxic Substances
Control's  "contingent admissions" provision  have been a substantial point of contention in many
settlement negotiations. Ultimately, however, the private sector has adjusted to including this provision
 in all cases alleging significant violations, and arguments about it have diminished. We can probably
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480                •         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
expect the same painful adjustment process by the federal government in this and perhaps other
areas.
6      CONCLUSIONS

       Several tentative conclusions can be drawn from our experience in enforcing environmental
laws at government-owned facilities.
       First,  economics  is important to  the federal  government, and  it responds accordingly.
California has seen a change in attitude by the federal government which has facilitated environmental
compliance. Base commanders have reacted by allocating penalties to the operating budgets of the
units under their command which are responsible for violations. Repeat inspections at facilities where
penalties or costs of investigation (11) have been paid previously to the state for violations have,  in
general, shown fewer violations.
       Second,  there has been no  raid on the  federal  treasury. Cases have, in this author's
experience, been approached from a penalty standpoint in a manner similar to most other cases,
with perhaps some deference being paid to the fact that taxpayer money from a not-for-profit entity
is being sought. There have been no projections that massive fines will be collected, and no budget
items depend on such fines for funding. Given the considerable uncertainties in the enforcement
process at federal facilities, it would be foolish to place any budgetary reliance on a set penalty figure
       Third, the federal agency or  department must have a budget process that allows for speedy
resolution and payment of penalties. Ater  enactment of the FFCA, we in  the regulatory community
were alarmed at a report that there would be no Defense Department budgeting for penalties because
the government would be in total compliance. Apparently, this approach has not been implemented,
"as it should not  be. Some monetary penalties will inevitably be assessed. If no budgeting or other
anticipation of their payment  occurs, we  face the prospect of all cases going  to  courts so that
compliance with the statute will be compelled.
       Fourth, environmental compliance should be a significant factor in promotions and evaluations
of job performance at the federal level. This is particularly true in the military, where tours of duty
rarely exceed three years, and there exists an incentive to leave nettlesome environmental problems
to the next facility commander. It is no overstatement  that environmental problems are among the
most difficult problems facing the Departments of Defense and  Energy. Placing people in command
who are capable of solving these problems—and are evaluated on their success—is in the national
interest.
       All of the foregoing lead to the final conclusion: notwithstanding the assertion that government
(including state and local government) should be treated in a manner similar to any other party in
enforcement of environmental laws, this analysis and our experience suggest that dissimilar treatment
is inevitable. The dissimilar treatment, however, has contributed to successful implementation of the
FFCA, The states are aggressively using the law to seek compliance without attempting to line their
treasuries at the expense of the federal taxpayer. The federal agencies have responded with increased
efforts at  compliance that account  for their new penalty liabilities, Ultimately, we will know that we
have succeeded when the level of compliance is such that few penalties are collected because there
is no need to seek them.
       ENDNOTES

  1. The comments contained in this paper are the opinions of the author alone and do not necessarily
    represent those of the Attorney General of California or any executive or administrative agency
    of the State of California.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         481
 2. "Government"  naturally encompasses local,  regional, national, and even  international
    administrations. This paper focuses on the national government of the United States. It is hoped
    that useful generalizations from this focus can be made to other governments at all levels in a
    wide range of countries,

 3, Public Law 102-386, amending  the Solid Waste Disposal Act, as amended by the Resource
    Conservation and Recovery Act of 1976 (RCRA) 90 Stat. 2796, as amended, 42 U.S.C. § 6901
    et seq. The sovereign immunity waiver, discussed herein, appears at 42 U.S.C. § 6961.

 4. In an attempt to promote discussion, the hypotheses and conclusions which are discussed are
    sweeping. They are, therefore, proposed with an invitation that they be criticized and modified
    by the reader.

 5. Ohio also sued under the Clean Water Act, where the Court of Appeals also held that penalties
    and fines were available against  the federal government. As with the  RCRA provisions, the
    Supreme Court also reversed that  determination.

 6. The full text of section 6961 is included as an appendix to this paper.

 7. See, e.g., United States v. Mitchell, 445 U.S. 535, 100 S.Ct, 1349, 63 L Ed.2d 607 (1980);
    Ruckelshaus v. Sierra Club, 463 U.S. 680,103 S.Ct. 3274, 77 LEd.2d 938 (1983).

 8. The only special consideration to be given for penalties assessed aga'nst the federal government
    is contained in § 102(a){3) of the FFCA, which provides that they be used for projects designed
    to improve or protect the environment or to defray  the costs of  environmental  protection or
    enforcement.
 9. Not all enforcement, of course, involves litigation. However, this paper is necessarily written with
    this perspective paramount since the author's major experience is in litigation.

 10. Through environmental credits,  an entity subject  to  an enforcement  action pays  for an
    environmentally beneficial project. Generally, the project has some nexus to the violation charged,
    and the benefit extends beyond the facility to the community at large. Some or all of the expense
    of the project is credited against the assessed penalty.
 11. Before enactinent of the FFCA, the federal  government reimbursed the state for investigative
    costs in some enforcement actions.
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482                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


       APPENDIX

(As amended Pub.L. 102-386, Title i, § 102(a),(b), Oct. 6,1992,106 Slat. 1505,1506.)

§ 6961.  Application of Federal, State, and local law to Federal facilities

(a)     In general

       Each department, agency, and instrumentality of the executive,  legislative, and judicial
branches of the Federal Government (1) having jurisdiction over any solid waste management facility
or disposal  site, or (2) engaged in  any activity resulting, or which may result,  in the disposal or
management of solid waste or hazardous waste shall be subject to, and comply with, all Federal,
State, interstate, and local requirements, both substantive and procedural (including any requirement
for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed
by a court to enforce such  relief), respecting  control and abatement of solid waste or hazardous
waste disposal and management in the same manner,  and to the same extent, as any person is
subject to such requirements,  including the payment of reasonable service charges. The Federal,
State, interstate, and local substantive and procedural requirements referred  to in this  subsection
include, but are  not limited to, all administrative orders and all civil and administrative penalties and
fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed
for isolated, intermittent,  or  continuing violations. The United States hereby expressly waives any
immunity otherwise applicable to the United States with respect to any such substantive or procedural
requirement (including,  but not limited  to, any injunctive relief,  administrative order or civil or
administrative penalty or  fine referred to in the preceding  sentence, or reasonable service charge).
The reasonable service charges referred to in this subsection include, but are not limited to, fees or
charges  assessed in connsction with the processing and issuance of permits, renewal  of permits,
amendments to permits, review of plans, studies, and other documents,  and  inspection and
monitoring of facilities, as well as any other nondiscriminatory charges that are assessed in connection
with a Federal, State, interstate, or local solid waste or hazardous waste regulatory program. Neither
the United States,  nor any agent, employee, or officer thereof, shall be immune or exempt from any
process  or  sanction of any State or Federal  Court with  respect to the enforcement of any such
injunctive relief. No agent, employee, or officer of the United States  shall be personally liable for any
civil penalty under any Federal, State, interstate, or local solid or hazardous waste law with respect
to any act or omission within the scope of the official duties of the agent, employee, or officer. An
agent, employee, or officer of the United States shall
       be subject to any criminal sanction  (including, but not limited to, any fine or imprisonment)
under any Federal or State solid or hazardous waste law, but no department, agency, or instrumentality
of the executive, legislative, or judicial branch of the Federal Government shall be subject to any such
sanction. The President may exempt any solid waste management facility of any department, agency,
or instrumentality in the executive branch from compliance with such a requirement if he determines
it to be in the paramount interest f the United States to do so. No such exemption shall be granted
due to lack of appropriation unless the President shall have specifically requested such appropriation
as a part of the budgetary process and the Congress shall have failed to  make available such
requested appropriation.  Any exemption shall be for a period not in excess of one year, but additional
exemptions  may be granted for periods not to exceed one year upon the President's making a new
determination. The President shall report each January to  the Congress  all  exemptions from the
requirements of this section granted during the preceding calendar year, together with his reason for
granting  each such exemption.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         483
(b)    Administrative enforcement actions

       (1)  The Administrator may commence an administrative enforcement  action against any
department, agency, or instrumentality of the executive, legislative, or judicial branch of the Federal
Government pursuant to the enforcement authorities contained in this chapter. The Administrator shall
initiate an administrative enforcement action against such a department, agency, or instrumentality in
the same manner and under the same circumstances as an action would be initiated against another
person. Any voluntary resolution or settlement of such an action shall be set forth in a consent order.
       (2)  No administrative order issued to such a department,  agency, or Instrumentality shall
become final until such department, agency, or instrumentality has had the opportunity to confer with
the Administrator,

(c)    Limitation on State use of funds collected torn Federal Government

       Unless a State law in effect on October 6, 1992, or a State constitution requires the funds to
be used in a different  manner, all funds collected by a State from the Federal Government from
penalties and fines imposed for violation of any substantive or procedural requirement referred to in
subsection (a) of this section shall be used by the State only for projects designed to improve or
protect the environment or to defray the costs of environmental protection or enforcement.
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484                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                    485
                   SPECIAL TOPIC WORKSHOP

             Enforcement of Economic Instruments
 1.  The Enforcement of Environmental Charges in The Netherlands,
    J.A. Peters, W.F.G. AJblas	487

 2.  Enforcement of Economic Instruments in the United States, J.B, Rasnic	495
See related papers from other International Workshop and Conference Proceedings.

 1.  Privatization as an Opportunity to Enhance Compliance, Poland's Perspective, S. Wajda,
    Volume I. Budapest, Hungary

 2.  Environmental Problems in the Hungarian Privatization, /. Mandoki, Volume II, Budapest,
    Hungary
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486                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         48?


THE ENFORCEMENT OF ENVIRONMENTAL CHARGES IN THE NETHERLANDS

PETERS, JIT A,1 arid ALBLAS, WILFRED F.G.2

1 Director for Policy Affairs
2 Policy advisor of the Directorate for Policy Affairs

Ministry of Housing, Spatial Planning and the Environment, Directorate-General for Environmental
Protection, Directorate for Policy Affairs, 660, RO. Box 30945,2500 GX The Hague, The Netherlands


       SUMMARY

       It is often claimed that charges are easier to enforce than direct regulations. Unfortunately,
no regulatory charges are being used In Dutch environmental policy, so it is not possible to compare
the enforcement-burden of these two instruments in practice. Experience, however, has been gained
with financing charges. The examples presented in this paper illustrate that there is a trade-off between
the regulatory  effectiveness  and the enforceability of these charges. For reasons of feasibility and
enforceability, concessions are made on the correspondence between the charge-base and the
environmental problem, thus limiting the regulatory potential of the charge. The decisions made on
the specifications of the charge-base indicate that enforcement problems would  rise if a charge is
aimed at the regulation of  behavior of a specific  firm or household. From the point of view of
enforcement, the relative advantages of charges compared to direct regulation seem therefore to be
limited. Charges can, however, improve the enforceability of other instruments by correcting prices
that cause environmentally unfriendly behavior.


1      INTRODUCTION

       Current environmental  policy is to a large extent based on bans, regulations and licenses.
Though direct regulation in principle  is  a suitable instrument to reach  environmental  targets, its
effectiveness is highly dependent on a successful enforcement. In the context of an expanding
environmental policy, the administrative and enforcement requirements of regulation, however, cause
an overload of tasks and responsibilities for the government.  It is more and more realized that the
theoretical advantages of direct regulation do not necessarily materialize in practice because of
implementation problems.
       In the Netherlands, The Scientific  Council for Government Policy, one of  the main advisory
bodies to the  government,  drew attention to the drawbacks  of direct regulation as the dominant
instrument of environmental  policy (1). The Council warned that the failings of direct regulation come
at the expense of -the credibility and legitimacy of environmental policy. As an answer to this problem,
the Council proposed  the government use less coercion and make more use of the mechanisms of
transaction  (market  forces,  economic   instruments)  and  persuasion (covenants,  education,
 information).
       This increased stress on self-regulation and on the use of transaction (market processes) as
a coordinating mechanism  in  environmental policy, concurs with the argument of economists that
charges should ba used more widely in environmental policy (2). Before we discuss these arguments,
for reasons of clarity, it is good to make a distinction between three different kinds of charges.
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488                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2      FINANCING CHARGES, REGULATORY CHARGES AND ENVIRONMENTAL TAXES

       Discussions on erwironmentai charges often end in a lot of confusion because the concepts
and their meanings are jumbled. In this paper we want to use the distinction made by the Scientific
Council for Government Policy (1), which is according to the primary aim of the charge (table 1). But
before doing this, we  have to warn that the distinctions made are quite  academic. In actual
policy-making, similarities may be greater than the differences..
       Firstly, the Council distinguishes earmarked charges. The primary aim of these charges is to
collect revenue to  pay for certain environmental activities or investments, such  as water-treatment
installations or waste-collection. The rate of the charge is determined by the funding needed and the
volume of the tax base.  Though the primary aim is the revenue, financing  charges can have a
regulatory impact, as is the case with the Dutch water pollution  charge discussed below.
       The primary aim of regulatory charges is to give price-incentives in order to change economic
behavior, irrespective of any funding which might be required for countermeasures.  They aim  at
substituting environmentally sound production processes, products and patterns  of consumption for
bad ones. This means that the basis for the charge may gradually diminish, or even disappear. The
rate is in principle determined by the environmental objectives related to the base of the charge. The
primacy of the regulatory aim can best be guaranteed by not using the income these charges generate
for a specific aim or for the Treasury, in order to ensure that spending requirements do not determine
the rate. The revenues can therefore best be returned to the charge-payers. If the charge-base is not
eroded fully by the charge, as would be the fact in case of a  regulatory energy charge, revenues
would become a structural part of government income, and the charge would become similar to an
environmental tax.
       Environmental  teixes combine funding  and regulation  by  introducing environmental
considerations into the tax system. Environmental  value, then, is added as a basis to the traditional
system of taxing income, capital and consumption. Since the primary aim is funding, this also
determines the rate. The regulatory effect is a side-effect, albeit a desirable one. To prevent the overall
tax base from being eroded,  environmental taxes can best be levied on environmental resources for
which demand is fairly constant (low price elasticity of demand).

Table 1.  Distinction of Taxes and Charges.

                              Aim                            Revenue spent on

Earmarked charge               Funding                        Environmental  measures
Regulatory charge               Behavioral change                Feedback into economy
Environmental tax               Reform of tax system             Substitution for other taxes


2.1    Rationale for the use  of environmental charges

       In market  economies,  individual consumers as well as companies normally make their
economic decisions on the basis of market prices. According to standard economic theory, the market
mechanism generates an efficient outcome of all these private  decisions. One of the conditions  for
this efficient outcome, however, is that  market-prices  are correctly reflecting  scarcity. This means,
among other things, that prices should reflect all social and environmental costs.
       In reality, the latter is not the case. Because environmental goods are not traded on the market,
they get no price. The production factor—environment—is therefore priced too low, which causes
over-use of the environment. Economists point out that the fact that the market  mechanism will not
tend to an optimum as long  as prices do not reflect all costs is a major cause of our environmental
problems
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         489
       in the introduction, it was  indicated that a standard reaction to this market-failure was
government regulation. This is of course not the only possible reaction. Economists stress  that
because the market mechanism is  such a strong allocative instrument, it should be used  in
environmental policy. If economic actors make their decisions on the basis of prices, it is the trick to
get the prices right. In  an economy with "correct" prices, economic agents will behave within the
limits of sustainab-lity, without much government interference.
       A standard example which illustrates the advantages of economic instruments is a regulatory
energy charge. Such a  charge is quite easy to impose  and collect, especially in case there already
are other taxes on energy (like excise duties on mineral oils). The number of tax pavers is small,
because it is only necessary to make the energy producers, importers and/or distributors liable for
taxation. This, together with a well organized market where the trade in the basis of the  charge is
well administered, makes enforcement easy. All users  of energy (companies and households) are
effected via the  price of energy, and can optimize energy-efficiency according to their respective
situation. Economic actors with the lowest cost of energy saving will save most energy, which causes
an efficient distribution of energy-saving efforts.  Since energy-saving  investments become more
profitable, market forces create an incentive to develop energy saving technology.
       Compare the effects of such a tax with a system of regulation trying to accomplish the same.
Energy-use standards for products should  be formulated, for example, or energy  efficiency
requirements should be incorporated in the environmental licenses. Besides the fact that government
needs lots of information about the available technology it also should enforce  these regulations
(does  the product match the norms? Is the firm in compliance with the licence?).
       It is because of these advantages (effectiveness, total abatement against least costs, dynamic
influence on technological development, usage of information on a decentral level) that charges have
enthusiastic supporters, incorporate environmental costs into prices by introducing charges, they say,
and the market mechanism will do the rest, thus lowering the enforcement burden for the government.

2.2     Enforcement issues with charges

        Notwithstanding these advantages of charges, it should not be forgotten that the problem of
enforcement is  not solved  by introducing charges but shifted,  Instead  of regulating  behavior,
government now needs to regulate  prices. It  is  in fact a similarity between charges and direct
regulation that both instruments need enforcement. This implies effective  monitoring activity on the
charge base, and clear criteria for identifying violations. And just like direct regulations, charges need
a framework of administrative and legal processes to take appropriate action to ensure compliance.
It is remarkable that the enforcement of economic instruments gets so little attention in literature. The
massive literature on economic  instruments  mainly stresses all their theoretical advantages. The
literature on enforcement, on the other hand, concentrates on direct regulation.
       To fill the gap between the abundance of theoretical claims and the lack of empirical support,
in this paper, we want to give an indication to what extent Dutch experience with economic instruments
supports the claim that economic instruments are  superior to direct regulation from the point of view
of enforcement.  A complication we encountered from the start, however, is that the experience with
charges is  in facl: almost totally restricted to the ones with financing as  their primary  objective.
Therefore, we will have to derive our conclusions on the enforceability of charges as a  regulatory
instrument on the basis of observations on the design of financing charges. We will find out that
considerations of practicability and enforceability led  in a number  of cases  to the choice of a
charge-base which is different from the one that would  have been chosen  if regulation had been the
primary  aim. Though the examples below do not cover all charges used  in Dutch environmental
policy, the most important ones are discussed.
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3      FINANCING ENVIRONMENTAL POLICY OF CENTRAL GOVERNMENT:
       ENFORCEMENT ISSUES

       A first instructive example on the role of considerations of enforcement is the history of the
financing instrument of Dutch central government. In the seventies, Dutch environmental policy was
characterized by sectoral laws, concerning for example air, water,  soil, waste and noise. In each of
these laws,  corresponding to the polluter pays  principle, possibilities  were created to  introduce
charges to finance the costs made for that particulate field of environmental policy. In course of time,
only a limited number of charges came into effect.

3.1    Air pollution and traffic noise tax experience

       In the case of air-pollution and traffic-noise, charging emissions was judged as impractical
since it would have meant metering a huge amount of, partly mobile, sources. Since there is a relation
between air pollution and noise production on the one hand, and the use of fuels on the other, for
practical reasons the latter was chosen as the charge-base. The existence of excise duties on mineral
oils facilitated this solution. The environmental charges for these fuels were simply added to the excise
duties and collected by the existing charging infrastructure.
       Things were not so easy for two other charges. The industrial noise charge was charged on
noise emissions. To restrict the number of tax-payers, the charge was based on metered  emissions
only for large polluters.  For small companies a flat fee was introduced, dependent on the branch of
industry and the size of the specific company. The charge for an individual company was calculated
with the help  of a table with coefficients reflecting standard  noise  production  of installations of
distinguished branches of industry. Implementation of the charge was hindered, however, by ongoing
discussions about the coefficients. Companies were claiming to produce different noise levels than
the ones following from the tables. In combination with the administrative costs of the monitoring of
the noise emission of the large firms, the perception costs of the industrial noise charge were judged
to be high in comparison to the  revenue of the charge.

3.2    Chemical waste charge experience

       The  chemical wast:e charge was imposed on the  amount of chemical waste produced by
firms. This charge gave, as an unfavorable by-product of the revenue, an incentive to illegally dispose
of chemical waste. This illegal disposal is very difficult to  trace, which made the charge  difficult to
enforce. Since the environmental consequences of illegal disposal can be serious, the chemical waste
charge was judged to be an unsuitable instrument to finance environmental policy.

3.3    Shift to a fuel charge

       The  inflexibility  of a sectoral financing system, in combination with  the problems  of the
industrial noise charge  and the chemical waste charge led to a change in the  financing of Dutch
environmental policy. Since 1988, all direct environmental expenditure of central government were
paid out of a general fuel charge, thus making fully use of the practicability of the existing fuel charges.
In 1992 this charge was changed into an environmental tax. The revenues of this tax are directed
towards the public funds, out of which also the environmental expenditures of the government are
paid.
4     WATER POLLUTION CHARGE

       The water pollution charge was introduced in the  Pollution of Surface Waters Act as an
instrument to finance the costs of water quality management. The most expensive part of this water
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        491
quality management is the building and operation of collective water treatment plants. In accordance
with the polluter pays principle, everybody discharging waste water into the sewer system or into
surface waters should contribute to these costs, Since precise implementation of the polluter pays
principle would imply the measuring of emissions for millions of sources, a more practicable system
was designed (3),
       As a standard measure of water pollution, the oxygen demand of waste water produced by
one person (one inhabitant equivalent, or i.e.) was defined as the entity for the charge-base. To keep
the system simple, a household is charged a standard number of i.e., dependent of the average
family size in the specific region (in most cases 3 i.e.). Households with one person, however, can
ask to be charged for 1 i.e. Consequently, all households pay a flat fee, irrespective of the pollution
emitted.
       For companies, a system is used comparable to the one of the former industrial noise charge
described above. Large firms are  obliged to measure  the oxygen demand of their waste water
themselves.  They have to store Hie samples which can be controlled by the government.  For the
much larger number of smaller firms this procedure was judged to be impracticable.  For them a table
of coefficients was created, dependent on the characteristics of processes in the branches of industry.
As a measure for the size of the activities the amount of water used is taken as an indicator, though
the relationship with  total pollution will at best be vague. If companies think they emit less than is
implied by the usage of the coefficient they can ask for a measurement of the real pollution. In all
other cases, small companies pay a flat fee, irrespective of the real amount of pollution in their waste
water. Very small polluters  (those emitting less than 5 i.e. according to the coefficient table) are
charged the same as households (a standard 3 i.e.).
       Besides  oxygen  binding substances, the water pollution law also has heavy  metals and
phosphates  as a base.  It is only imposed on companies that have to meter their emissions. It is
assumed that companies falling under the coefficient table will have  negligible emissions of these
substances.
       As was indicated above, the water pollution charge has financing as its primary aim. The
main instrument of pollution control in the Pollution of Surface Waters Act is direct regulation by means
of permits and decrees. The  Act recognizes, however, that a regulatory impact may be a positive
side-effect of the charge. From  empirical research, it is known that this regulatory effect did indeed
materialize,  in fact a lot  more than expected. Especially the rate for oxygen binding substances is
high enough to  give companies an incentive to reduce  the pollution  in the waste  water, mainly by
building their own water treatment plant.  Though it took quite a long time before this effect became
visible, the water pollution charge is often cited as an example of One potential of regulatory charges.
Of special interest is the positive effect on technological development. Because of the charge-induced
market demand for water purification technology, new installations and techniques were developed.
This had, among other things, the result that water purification technology is now a main export article
for the Dutch environmental production sector.
 5     THE WASTE DISPOSAL CHARGE

       Another interesting example of the relationship between enforcement and the design of
 charges are  the  recent developments with respect to the waste disposal charge. In the cases
 presented above, for reasons of simplicity, practicability and enforceability, the base of the charge
 got removed from the polluting activity. In the case of the waste disposal charge, it's the other way
 round: for reasons of effectiveness, the charge is increasingly imposed on the polluting activity itself.
 As a consequence some enforcement problems may rise.
       In the Netherlands, the  municipalities have the legal obligation to collect the waste of
 households and  to take care of the disposal. In order to finance the costs of these activities,
 municipalities are allowed to impose a waste  disposal  charge.  One of the ideas behind the
 introduction of this tax was that the government wanted to create a financing instrument which would
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492                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
give no incentive to peoples to get rid of their waste in an illegal way (charge avoidance). Therefore,
the charge is to be paid by every household, offering waste or not.
       Consumer-organizations,  citizens and  some  municipalities  became in course of time
unsatisfied with the lump-sum character of the charge. They argued that there is some injustice in
the fact that every household has to pay the same amount of money, independent of the amount of
waste offered. This feeling got stronger once it became clear that the charges were rising fastly (as
they did in the Netherlands with an 18  percent yearly growth-rate during the last years). Because of
the flat fee, there is no way citizens can influence this financial burden.
       A lot of municipalities (one in three) therefore decided to charge families more than one-person
households. However, it is clear that a really just financing of the costs would make the charge more
directly dependent of  the amount  of waste  offered by the households. Moreover, such a
pay-as-you-diseard approach would give households appropriate incentives to recycle, to compost
and to adjust their purchasing habits to reduce  the amount of waste they generate. Of course,  an
important prerequisite for a manageable system is that households are given the opportunity to reduce
the waste they offer. So, a necessary complement of the pay-as-you-discard systems are curb-side
facilities, such as paper-ccotainers and bottle-banks.
        Differentiating tariffs is possible by weighing the waste supplied  by individual households, the
introduction of expensive  refuse-bags, or measuring the offering frequency of waste-containers. In
the Netherlands, most experience has  been gained with the expensive bag system (25 country-side
municipalities) (4). in this system, the  sanitation  department exclusively collects bags in which part
of costs of collection and  disposal are discounted.
        Some municipalities report problems with illegal charge avoidance. Occurrence of this
behavior seem to be the greatest during the starting period of the new system. People realize that
they can  earn money by  offering less waste, and some of them use this possibility in a creative
manner by taking the waste to.other municipalities or their workplace ("waste tourism").
        In the town of Barendrecht, for example,  the amount of waste offered dropped sensationally
after the introduction of an expensive bag costing 2.5 guilders. Observers became less enthusiastic
about this environmental success when they heard that the amount of waste offered in the neighboring
town grew inexplicably with 23%. Because it is not forbidden to drive  around in a car filled with
refuse-bags  it is quite complicated to take action against this waste  tourism. Civil servants of the
sanitation department of a neighboring  town,  however, tried to catch people  from  Barendrecht
disposing their waste on the streets. Catched "tourists"  could expect a fine of 80 guilders.
        Though waste tourism for a large part is a temporary phenomenon, the example shows that
the risks of illegal charge avoidance are real. The amount of the financial incentive seems to be quite
critical. Experience shows that problems rise fast if the price of the bags rises above 2 guilders (US$
 1). It should be noted that all differential systems can be used in combination with a flat fee to cover
 (part of the) fixed costs of the sanitation department. Disposal costs for households,  then, get a
constant and a variable part. The share of the variable costs can be used to "fine-tune" the incentive
to prevent and separate waste,  respectively  the incentive to get  rid of waste  illegally.  Some
 municipalities indeed chose to lower  the price  of the bag in response to experiences with waste
tourism.
 6      WASTE TAX

        Prices  play  a role in environmental behavior, whether  the  government uses economic
 instruments or not. The relevance of the costs of waste disposal for the chosen kind of waste treatment
 is an illustration of this point.
        The general  objective of Dutch waste policy is to reduce the  risks from waste disposal for
 humans and the environment to an acceptable or, where possible, negligible level. Part of the policy
 to reach this objective is a priority setting for means of waste disposal (prevention - recycling -
 incineration - landfllling). Incineration is preferred  to landfilling because the latter costs space (which
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          4&3


is very scarce in the Netherlands), and creates risks for soil and groundwater. Moreover, by incinerating
waste, at least the energy-content of the waste is gained back, This priority-setting is reflected in the
environmental targets for waste-disposal, as laid down in the National Environmental Policy Plans.
       Unfortunately,  actual  waste-treatment and its cost-structure is  opposite to  these policy
priorities, The costs of prevention and recycling are in most cases higher than the costs of incineration,
which in turn is more expensive than  landfilling. As a consequence,  almost half of the amount  of
household-waste, for example, is brought to the landfill.
       Various instruments can be used to prevent waste flowing to the cheapest but least preferred
way of  disposal.  In the Netherlands,  landfilling prohibitions are in preparation for specific waste
streams. It is clear that such a system of prohibitions needs a comprehensive legal system, with
clearly defined waste  categories. On the landfill, control is necessary whether the loads of waste
offered do contain any of the fractions for which there is a dumping prohibition. Enforcing this system
will be quite complicated, especially if there is a continuous financial incentive to bring the waste  to
the landfill instead of choosing other means of disposal.  It is therefore felt that a change in the
cost-structure is necessary to create a enforceable  system. In the second National Environmental
Policy Plan (5), the rise in landfilling tariffs to the incineration level is therefore formulated'as a target.
       One of the instruments used to change the cost  structure of waste disposal is a tax on the
end-disposal of waste. The bill for this tax passed the lower house,  and is now discussed in the
Senate. The waste tax is an example of an environmental  tax with the primary aim of collecting funds
for the Treasury. The discouraging effect on the landfilling or incineration of waste is a welcome but
secondary effect.
       The waste tax has to be paid by the owners of the landfill-sites where the waste is dumped.
The waste tax is a  general means  to  raise the  costs of end-disposal,  thus improving the
competitiveness of  recycling.  Because average iandfilling  costs  are  much lower than incineration
costs, in the bill a higher tariff for the former is proposed. The tariff for landfilling will be 28.50 guilders
per ton, while the tariff for incineration will be nil. For comparison: the average tariff for dumping  of
householdwaste is 73 guilders per ton, while the average tariff for incineration amounts to 121 guilders
per ton (in 1995 expected to be about 220 guilders per ton).
       In the waste tax, the government chose to introduce only a general tariff for landfilled waste.
From a environmental point of view it would be desirable to have higher tariffs for waste streams with
relatively high costs of segregated collection, recycling or  re-use. In that way, the tariff-structure  of
the waste tax  would  give more  specific incentives  to fie best ways of disposal.  However, this
differentiation of tariffs would have made the waste tax more complex and more difficult to enforce,
which was judged by  government to be unfavorable. AH distinguished waste-streams would have to
be defined very carefully and precisely. The tariffs would have to be dependent on the costs of re-use
for every waste stream, which can change in course of time. More-over, the enforcement of the tax
would become veiy complicated. At the landfill, where waste is often offered in an unseparated way,
every waste stream distinguished in the tariff should be  weighted separately. The perception  costs
that would be the consequence of such a refinement of the tariff were judged as being too high.
 7      CONCLUSIONS

        In this paper we investigated whether Dutch experiences support the claim that environmental
 charges are easier to enforce than direct regulation. Because only financing charges are implemented
 in Dutch environmental policy, we had to use indirect evidence on the enforceability of charges as a
 regulatory instrument. Since the regulatory effect of a charge is dependent on the extent to which the
 actor can influence the amount of charge paid by altering behavior, an effective charge requires a
 base which is as close as possible to the behavior the government wants to regulate. To see whether
 enforceability is a problem with respect to charges, we therefore investigated the choices  made on
 the design of the charge bases of the major environmental charges.
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494                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       The experiences with financing charges presented in this paper show that a lot of concessions
on the correspondence between the charge-base and the environmental problem are made for
reasons  of feasibility  and enforceability. The  widespread use of flat fees for  categories of
charge-payers is an illustration of this. These concessions can be justified from the primary aim of
these charges, which is to raise money. It deserves no lot of phantasy, however, to realize that a lot
of enforcement problems would accompany a charge with a base more aimed at regulation. Moreover,
the history of the waste disposal charge illustrates that working with charges can cause  specific
enforcement problems because an (explicit) financial premium is put on undesirable behavior.
       Apart from the conclusion that there seems to be a trade off between the effectiveness and
the enforceability of charges, the examples also make clear what are the determinants of the feasibility
and enforceability of charges. We found, for example, that connecting environmental charges to an
existing tax infrastructure has practical advantages, Beneath that, the number of tax-payers  and the
measurability of the base seem to be of centra! importance. Since the number of tax payers  is much
lower, and the tax base is, as a traded good, easier to measure, charges on inputs are often more
practicable than emission charges.
       A major advantage of charges is that they can be designed to support the working of other,
more specifically regulating instruments by changing the existing price-structure in an environmentally
friendly way. By carefully selecting a charge-base, a substantial, though global and  unpredictable
environmental effect can be attained with a relatively  low enforcement strain. Selecting instruments
for environmental protection, therefore, is no matter_QLchoice for one instnjmfint_agalDsLJhe_.Qth6i:r
but of a careful composition of a mutually enforcing mix of instruments.
       REFERENCES

1 . Netherlands Scientific Council for Government Policy, Environmental policy: strategy, instruments
   and enforcement, 41th report to the government, The Hague, 1992.

2, OECD, Taxation and environment; complementary policies, Paris, 1993.

3. Wasch, E.RJ. (ed.), Hoofdzaken milieuheffingen (Main issues of environmental charges),  Fed,
   Deventer, 1992.
4. DHy Differentiate van tarieven voor inzameling van huishoudelijk afval (Differentiation of tariffs for
   the collection of household waste), Ministry of VROM, The Hague, 1993.

5. National Environmental Policy Plan 2, Second Chamber, session 1993-1994, 23 560, nos. 1-2.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         495


ENFORCEMENT OF ECONOMIC INSTRUMENTS IN THE UNITED STATES

RASNiC, JOHN B,

Director, Stationary Source Compliance Division, United States Environmental Protection Agency,
401 M Street, SW (630-6W), Washington, DC 20460 USA


       SUMMARY

       The United States is moving aggressively toward more market based or economic incentive
programs (EIP) for limiting pollution. Mary believe that in the long term, market based programs have
a better chance at success in pollution prevention and encouraging clean technologies than the more
traditional  approach  of command and  control.  The economic  approach  tends to tap the
resourcefulness of the entire community by bringing out their desire  to obtain a product or service
at the least overall costs. To accomplish their goal of internalizing all costs, economic programs must
include those  costs associated with environmental protection  required in delivering a product or
service in order to be the most successful. For most of these economic instruments to work effectively,
they must be backed by clear regulations, enforceable permits to establish emission rights for trading,
an effective compliance promotion  effort and an  aggressive enforcement program. This paper
describes several  types of economic instruments, their enforcement  challenges and the current
activities at US EPA to implement them.


1      INTRODiyCTION

       A variety of programs fall under the general heading of economic incentive programs (EIPs).
Further, within each general type of program also are several different basic program designs. I would
like to describe common types of EIPs that have been implemented, designed, or discussed in the
literature for stationary and mobile sources. The program types discussed below do not include all
of the possible types of EIPs. Innovative approaches incorporating new ideas in existing programs,
different combinations of existing program elements,  or wholly new incentive systems  provide
additional opportunities for agencies to find ways to meet environmental goals at lower total cost.

1.1     Emissions trading markets

       One prominent class of EIPs is  based upon  the creation of a market in which trading of
source-specific emissions requirements may occur. Such programs may include traditional rate-based
emissions limits (generally referred to as emissions averaging) or overall limits on  a source's total
mass emissions per unit of time (generally referred to as an emissions cap). The emissions limits,
which may be placed on individual emitting units  or on facilities as a whole, may decline over time.
The common feature of such programs is that sources have an ongoing incentive to reduce pollution
and  increase flexibility in meeting  their regulatory  requirements.  A source may meet its own
requirements either by directly preventing or controlling emissions or by trading or averaging with
another source. Trading or averaging may  occur within the same facility, within the same firm, or
between different firms. Sources with lower cost abatement alternatives may provide the necessary
emissions reductions to sources lacing more expensive alternatives.  These programs can lower the
overall cost of meeting a given total level of abatement. AH sources eligible to trade in an emissions
market are faced  with continuing incentives to find better ways of reducing emissions at the lowest
possible cost, even if they are already meeting their own emissions requirements.
        Stationary, area, and mobile sources could be allowed to participate in a common emissions
trading market. Programs involving emissions trading markets are particularly effective at reducing
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overall costs when individual affected sources face significantly different emissions control costs. A
wider range in control costs among affected sources creates greater opportunities for cost-reducing
trades. Thus, for example, areas which face relatively high stationary source control costs relative to
mobile source control costs benefit most by including both stationary and mobile sources in a single
emissions trading market.
       Programs involving emissions trading markets may be  designed as either a marketable
emissions allowance program or as a marketable emissions reductions credit program. Programs
based on marketable allowances establish an emission allocation or quota for each source,  but give
sources an opportunity to adjust their allocations through trading. Each source's actual emissions at
some defined point(s) in time must be less than its adjusted allocation. Allowance programs may
assign each affected source a certain number of allowances based on a percentage of their historical
emissions or some other specified criteria, such as a reduced level of emissions necessary to satisfy
a specific environmental goal. To achieve net emissions reductions, the program design could include
declining limits over time. Emissions limits could also specify both a mass per unit time limit and an
effective time  period. For instance, a source's limit may be 800 pounds per month for 1998,  780
pounds per month in 1999, etc. Sources can be given considerable flexibility to decide how to assure
their emissions will not exceed their allowances in each period, subject to meeting all other regulatory
requirements.  If they choose to, sources may buy or sell portions of their allowances for each period.
If all sources emit only as much as permitted by the number of allowances they hold (adjusted by
trades), the total emissions from all affected sources will not exceed the total emissions allocated for
that period.
       In contrast, emission reduction credit (ERG) programs feature trading of emissions reductions,
measured against a pre-established emissions baseline, rather than trading of emissions allowances.
Each source's initial emissions baseline is established either by the EIP rules or through promulgation
of traditional regulations. Sources-can generate ERCs  by implementing enforceable measures that
reduce emissions below the source's emissions  baseline. Conversely, sources may exceed their
emissions baseline by obtaining sufficient ERCs from other sources. Thus, a major distinction  between
these  two  types of trading programs is that ERC trading  involves the calculation of  a change in
emissions as  a result of a specific emission reduction measure, whereas allowance trading involves
only the calculation of actual emissions at a given point in time.
       The definition of the commodity to be traded and the design of the administrative procedures
the buyer and seller must follow to complete a trade are obvious elements that must be  carefully
selected to help ensure a successful trading market that achieves the desired environmental goal at
the lowest cost. An emissions market is defined as efficient if it achieves the environmental goal at
the lowest possible total cost. Any feature of a program that unnecessarily increases the total cost
without helping achieve the environmental  goals causes market inefficiency. Thus, the design of an
emission trading program should be evaluated not only in  terms of the likelihood that the  program
design will ensure that the environmental goals of the program will be met, but also in terms of the
costs that the design imposes upon market transactions and the impact of those costs on market
efficiency.
       Transactions costs are the investment in time and resources to acquire information about the
price and availability of allowances or ERCs, to negotiate a trade, and to assure the trade is properly
recorded and legally enforceable. All trading markets impose some level  of transaction costs. The
level of transaction costs in an emissions trading market are  affected by various aspects of the design
of the market, such as uncertainties in the value of the allowance or credit being traded, the legitimacy
of the allowance or credit being offered for sale, and the long-term integrity of the market  itself.
Emissions trading programs  in which every  transaction is different,  such as  programs  requiring
significant  consideration of the differences in the chemical  properties  or geographic location of the
emissions, can result  in higher transaction costs than  programs  with a  standardized trading
commodity and well-defined  rules for acceptable trades. Transaction costs are also affected by the
relative ease with which information can be obtained about the availability and price of allowances
or credits.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         497
       While the market considerations discussed  above are clearly Important in designing an
efficient market to minimize the transaction costs of such a program, other considerations, such as
regulatory certainty, enforcement issues, and public acceptance, also clearly need to be factored into
the design of an ejmissions trading program,

1.2    Fee programs

       A fee on each unit of emissions is a strategy that can provide a direct incentive for sources
to reduce  emissions. Not all emission fee programs are designed to motivate sources to  lower
emissions. Fee programs using small fees are designed primarily to generate revenue, often to  cover
some of the administrative costs of a regulatory program. In order to motivate a change in emissions,
the fees must be high enough that sources  will actively seek to reduce emissions. Ideally fees should
be set so as to result in emissions being reduced to the socially optimal level considering the  costs
of control and the benefits of the emissions reductions.
       There can be significant variations in emission fee programs. For example, potential emissions
could be targeted by placing a fee on an input (e.g., a fee on the quantity and BTU content of fuel
used in  an industrial boiler) rather than on actual emissions. Sources paying a fee on potential
emissions  could be eligible for a fee waiver or rebate by demonstrating that potential emissions are
not actually emitted, such as through a carbon absorber system on  a coating operation.
       Some fee program variations are designed to mitigate the potentially large amount of revenue
that a fee  progran could generate. Although more complex than a simple fee program, programs
that reduce or eliminate the total revenues may be more readily adopted than a simple emission fee.
Some programs lower the amount of total revenues generated by waiving the fee on some emissions.
These programs reduce the total amount of revenue generated, while providing  an  incentive  to
decrease emissions. Alternatively, a program may impose higher per-unit fees on a portion of the
emissions stream,  providing a more powerful but targeted incentive at  the same revenue levels. For
example, fees could be collected on all emissions in excess of some fixed level. The level could be
set as a percentage of a baseline (e.g., fees on emissions above some percentage of historical
emissions), or as the lowest emissions possible (e.g., fees on emissions in excess of the lowest
demonstrated emissions from the source category).
       Other fee programs are "revenue neutral," meaning  that the pollution control agency does
not receive any net revenues. One way to  design  a revenue-neutral program is to have both a fee
provision and a rebate provision. Rebates must be carefully designed to avoid lessening the incentive
provided by the emission fee. For example,  a rebate based on comparing a source's actual emissions
and the  average emissions for the source  category can be designed to be revenue neutral and not
diminish the incentive.
       Other types of fee programs collect a fee In relation to particular activities or types of products
to encourage the use of alternatives. While these fees are not necessarily directly linked to the total
 amount  of emissions from the activity or product, the relative simplicity of a usage fee may  make
 such programs an effective way to lower emissions. An area source example is a construction permit
 fee for wood stoves. Such a permit fee is directly related to the potential to emit inherent in a  wood
 stove, and not to the actual emissions from each wood stove in use. Fees on raw materials to a
 manufacturing process can encourage production reformulation (e.g., fees on solvent sold to makers
 of architectural coatings) or changes in work practices (e.g., fees on specialty solvents and degreasing
 compounds used in manufacturing).
        Road pricing mechanisms are fee programs that are available to curtail low occupancy vehicle
 use, fund  transportation  system  improvements and control measures,  spatially and temporally shift
 driving patterns, and attempt to effect land usage changes. Primarily examples include increased
 peak period roadway, bridge, or tunnel tolls (this could also be accomplished with automated vehicle
' identification systems as well), and toll  discounts  for pooling arrangements and zero-emitting/
 low-emitting vehicles.
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1.3    Tax code provisions

       Modifications to the existing tax code can provide an effective economic incentive. Possible
tax code revisions to encourage emissions  reductions cover a broad span of programs, such as
accelerated depreciation of capital equipment used for emissions reductions, corporate income tax
deductions or credits for emission abatement costs, property tax waivers based  on decreasing
emissions, and exempting low-emitting products from sales tax. Mobile source tax  code incentive
strategies include waiving or lowering any of the following for zero- or low-emitting vehicles;  vehicle
registration fees, vehicle property tax, sales tax, taxicab license fees, and parking taxes.

1.4    Subsidies

       An agency may create incentives for reducing emissions by offering direct subsidies, grants
or low interest loans to encourage the purchase of lower-emitting capital equipment, or a switch to
less  polluting operating  practices. Examples of such programs include clean vehicle  conversions,
starting shuttle bus or van pool programs, and mass transit fare subsidies. Subsidy programs often
suffer from a variety of "free rider" problems. For instance,  subsidies  for people or firms who were
going to switch to the cleaner alternative anyway lower the effectiveness of the subsidy program, or
drive up the cost of achieving a targeted level of emissions  reduction.
2     ENFORCEMENT CHALLENGES

       Economic programs also bring unique enforcement problems because most still require some
government or third party oversight in order to ensure fairness and to avoid cheating. I would like to
share with you some of our experiences in this area and discuss enforcement implications,

2.1    Experience in the U.S. Air Program

       In the United States, five program areas have received the most attention in using economic
incentive principles as a primary focus for environmental regulation;

2.1.1   Phase out in the use of lead in gasoline

       The EPA initiated a series of successively more stringent lead limits in gasoline during the
late 1970s due to the increase in use of new cars with catalytic converters and the gathering storm
over health effects of high lead levels in blood.
       Initially EPA regulations demanded equal reductions from all refineries but eventually speeded
the transition to unleaded gasoline by offering trading and banking options through which facilities
could  pay other  producers for  reduction credits to  offset their  excesses. Modern facilities and
environmentally progressive companies were  able to  substantially reduce lead levels in their own
products and sell credits to their competitors for profit which avoided shutdown situations at several
older refineries but maintained an overall aggressive pace for the entire industry in the phase out of
the use of lead as an octane  booster.

2.1.2  Phase down in  the manufacture of chlorofluorocarbons (CFCs)

       The EPA promulgated regulations implementing the requirements of the Montreal Protocol
through a system of tradeable allowances. In the allowance system, companies are restricted in their
production and consumption of  each controlled substance. They must have both  production and
consumption allowances in order to manufacture controlled substances but need only consumption
allowances to  import  them.  In  turn, a company may receive allowances for  exporting. These
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         499


allowances are chemical-specific and may be traded or sold, subject to approval by the Agency.
Allowances may also be converted from one chemical to another within the same group by adjusting
the number of allowances according to the relative ozone-depletion potentials of the chemicals.
       The Agency granted production and consumption allowances to companies based on the
amount either produced or imported during the baseline year, for group  I CFCs and hatons, the
baseline year was 1986.  For  chemicals in  groups III, IV and V  (the remaining CFCs, carbon
tetrachloride and methyl chloroform),  the baseline year was 1989.  For groups VI  and VII (methyl
bromide and hydrobromofluorocarbons), the baseline year was 1991.
       In any given year, a company is allowed to produce and consume no more than a specified
percentage of its baseline year production and consumption allowances for each controlled
substance, plus or minus any allowances obtained or traded during the control period. The percentage
is reduced over time so that the United States meets its phaseout obligations under the  Montreal
Protocol. Under the current phase-out schedule, Class I substances, except for methyl bromide, will
no longer be produced after January 1, 1996. Methyl bromide production will cease on January 1,
2001,

2.1,3  National emission standards for acid rain precursors

       The  overall goal of the Acid Rain Program is to achieve significant environmental benefits
through reductions in emissions of sulfur dioxide (SOa) by 10 million tons and nitrogen oxides (NO*)
by 2 million tons. "Ib achieve this goal at the lowest cost to society the program employs both traditional
and innovative market-based approaches for controlling air pollution.
       Phase I begins in 1995 and affects 110 mostly coal burning electric utility plants and phase
II begins in the year 2000 and tightens annual emissions limits on these large units and sets restrictions
on units greater than 25 megawatt output.
       At the heart of this economic incentives  program is an allowance trading  system that
harnesses the forces of the free market to reduce pollution. Under this system affected utility units
are allocated allowances annually based on their historic fuel consumption and a specific emissions
rate. Each allowance permits a unit to emit 1 ton of SOa during or after a specified year. Once a ton
of SQz is emitted one allowance is retired and can no longer be used.
       AII6wancl!S"'may Be" bought,  sold, of banked; "Any person  may acquire allowances and
participate in the trading system. However, in the traditional mode of controlling pollution, regardless
of the number of allowances assigned to a source, it may not emit at levels that would violate federal
or State ambient air quality standards to protect public health.

2.1.4   National emission standards for architectural and industrial maintenance (AIM) coatings

        EPA has been conducting a regulatory negotiation for the past year in an effort to craft rules
that will control volatile organic compound (VOC) emission from the architectural, industrial and
maintenance coatings industry which involve a variety  of paints  and coatings.  The rule  under
consideration will affect roughly 65 percent of the coatings industry, which accounts for two percent
of the total VOC emissions nationwide. Agreements have been reached to reduce VOC emissions
from current levels by 25 percent in 1996 and 45 percent by 2003.
        A table of standards for these coatings which limits the amount of VOC in grams per liter in
the coatings will be applicable to all coatings manufactured or imported for use in the U.S..  The VOC
content will then be reduced over time to obtain the desired emissions goal. In addition, manufacturers
will have the option to comply with a corporate average which will permit companies the flexibility to
develop least cost strategies to supply a wide range of applications.
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2.1.5   RECLAIM program for California

       Reclaim, the Regional Clean Air Incentive Market is a market incentives air pollution reduction
program for nitrogen oxides (NOX) and sulfur oxides (SOx) in the South Coast Air Quality Management
District of California. The supporters of this program believe  that the approach towards achieving
clean air in Southern California provides greater certainty in meeting health standards while allowing
industry to choose the most cost-effective solution to reduce their emissions.
       This program affects approximately 390  facilities  of  NOX representing  64 percent  of the
emissions torn stationary sources and 41 facilities of SOX representing 83 percent of the emissions
of stationary sources. A baseline for each facility will  be developed using a formula of previous
emissions levels of which reductions will be required for each facility each year until the desired goal
is reached. This process results in emission reduction credits which can then be traded on the open
market to allow for the most cost effective emissions reductions to occur. This program is in the final
rule adoption process of California.

2.1,6  Rapid amortization of pollution control equipment

       Rapid amortization of the costs for pollution control equipment is a provision in the tax code
of the United States (US) which allows businesses to enjoy the economic benefits of pollution control
expenditures earlier than would occur under normal tax provisions for capital  expenditures.
       Expenses incurred by a business for capital expenditures can not be entirely expensed in the
year for which the expenditure occurs but must be spread out over the time period representing the
life expectancy of the equipment. The Internal Revenue Service (IRS) of the US publishes tables for
taxpayers use in determining the period allowed under its rules. Most pollution control equipment is
assigned  a period of ten (10) to  fifteen (15) years as the period to be used in amortizing these
expenditures. For Instance a piece of equipment costing $500,000.00 and assigned a 10  year period
wouid be  able to  deduct from their income $50,000.00 a year as a business expense.
       However, under the rapid amortization provision the IRS has established a 7.5 year period for
treating certified pollution control capital expenditures. The business is required to obtain a certification
from a governmental pollution control agency that the purchased equipment is being used for pollution
control purposes. The business then submits the certification with their tax return showing the modified
amortization period to the IRS. In this case, then using the $500,000.00 example above the business
would use the value of $66,666.66 as a business  expense instead of the $50,000.00 expense under
the normal amortization period,

2.2    Compliance and enforcement issues

       Although these programs differ significantly in their scope and coverage, they raise similar
compliance and enforcement issues.
       Several programs are initiated by establishing a base and an allocation for all primary affected
companies and then a decline in allocation is assigned over time until the emissions goal is achieved.
These may also have an emissions fee associated with each allocated emissions unit.  Each company
is required to establish  sampling and analysis methods and recordkeeping and reporting  procedures
for determining compliance. Most programs are further complicated for compliance and enforcement
in that companies are  permitted to trade, sell, and average  their allocations between units, within
companies or with other companies.
       Several demands were placed on the US EPA in monitoring and enforcing these approaches
to emission reductions. From a technical standpoint sampling and  analytical methods  with quality
control procedures needed to be developed, established and agreed on from the outset to ensure
accuracy  and consistency between companies and for government inspectors.
        From an accounting standpoint  several points of  information and data sets needed to be
established and agreed on  in order to assure that all the necessary information was gathered on a
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         501


routine  basis  and would be available for auditing to assure that the requirement was  being
accomplished  on schedule  and that no  cheating was occurring which  would economically
disadvantage complying competitors.

2.3    Guidelines for state programs

       The US EPA has promulgated rules and procedures for use in preparing economic incentive
programs.  Under monitoring, recordkeeping  and reporting requirements we talk about what is
appropriate.
       The rules were based on the  premise that EIPs depend more strongly than traditional control
programs on monitoring, recordkeeping and reporting (MRR) to ensure compliance and to allow for
adequate enforcement because they are inherently more flexible and less prescriptive than traditional
technology or  performance standards. The  rules  recognized  that while a wide range of MRR
approaches are available that can be  used to show compliance for different types of sources, no
one approach is necessarily the most appropriate, or even technically feasible, for all types of sources
that may be included in an EIR Thus, the rules explicitly allow for alternative monitoring methods.
       An  EIP must  contain  test methods and, where necessary,  emission quantification
methodologies, appropriate to the emission limits established in the EIR EIP sources must be subject
to  clearly specified MRR  requirements appropriate  to the test methods and  any applicable
quantification methodologies, consistent with  permitting and enhanced monitoring program rules,
where applicable. In general, agencies  should refer and adhere to the enhanced monitoring protocol
requirements set out in EPA's  Enhanced Monitoring Program Rule in designing the monitoring
methods to implement  any EIP Agencies shall  provide justification and supporting analysis if it uses
alternative approaches to designing monitoring methods for source categories  not subject to the
Enhanced Monitoring Program Rule. Monitoring methods may include, but are not limited to:
       • The continuous monitoring of mass emissions, emission rates, or process or control
         parameters, ambient conditions, activity levels and throughput or production rates.
       • In situ  or portable measurement  devices to verify control system operating
         conditions.
       • Periodic measurement of mass emissions or emission rates using reference test
         methods and specified averaging times for emissions caps or emission rate limits.
       •  Operation and maintenance  procedures and/or other  work practices designed to
         prevent, identify, or remedy noncomplying conditions.
       •  Manuaf or automated recordkeeping of material  usage, inventories, throughput,
         production, or levels of required activities.
        •  Mass balance calculations which are a function of inventory, usage, or  disposal
          records.
        • Any ccmbination of these methods and shall require that responsible parties at
          each facility in the EIP program certify reported information.
        Similarly appropriate enforcement mechanisms are discussed in the Agency's EIP rules and
procedures. Under enforcement we talk about the enforcement consequences.
        An EIP must include adequate enforcement consequences for noncompliance with any source
requirements,  including MRR requirements.  Both Federal and State enforcement penalties must be
included, such that the level of deterrence embodied in traditional regulatory programs is preserved.
        Traditionally regulatory  programs provide  for enforcement against  noncompliance  with
emissions limits at both the Federal and State/local levels. The statutory maximum Federal penalties
under the Act are $25,000 per day, per  source in violation. To preserve the existing level of deterrence
under the Act, an EIP that imposes multiday and/or multisource emission limits must define violations
of  those limits in  such  a way that the violations will  translate into sufficient numbers of source-days
of  violation. Further, the program must include provisions such that State/local  penalties create a
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deterrent effect comparable to that of traditional regulatory programs. One possible approach would
be for the EIP to authorize predetermined penalties based on the amount of an exceedance of such
a cap, provided the predetermined amounts are sufficiently large. For instance the Acid Rain program
has established $2,000 per ton of excess sulfur dioxide.
       The  El Ps  that impose multi-source  emissions limits must require facilities  to develop
enforceable  plans for remedying noncompliance in those cases where facilities  have exceeded
emissions limits for  the specified  averaging period. Such plans must identify appropriate and
enforceable  control measures or other procedures or strategies sufficient to achieve and maintain
compliance with applicable emissions limits.
3      CONCLUSION

       Compliance with MRR requirements is critical to the integrity and success of EIPs. Thus, an
EIP must include enforcement provisions that  establish  a regulatory structure  which clearly  and
effectively deters inadequate or Improper MRR, providing for both State/local and Federal penalties.
Such provisions should pnsserve the  Federal civil  penalties  and criminal sanctions  (for knowing
violations)  authorized in the Act for  violations of MRR  requirements, Further, the  enforcement
provisions must include methods for determining required data when MRR violations result in missing,
inadequate, or erroneous monitoring and recordkeeping  data. These methods must ensure  that
sources have a sufficiently strong incentive to properly perform monitoring and recordkeeping in the
first place.
       The major trade off in economic incentive programs is the greater flexibility that the program
offers for sources versus the need for better monitoring, record keeping and reporting requirements.
Many believe that the onus shifts to the Agency to be able to  audit a program to uncover violations
as opposed to the traditional  testing for violations approach. Compliance and enforcement authorities
must be aware that the structure and thoroughness of their approach will have to  be able to uncover
this type of "paper" violation which will represent actual emission excess.
       Economic incentive programs  are not necessarily simple or  easy to implement and  may
require very  complex monitoring and enforcement mechanisms  but once in  place  and market
decisions are made which include all costs of products or services real environmental results can be
seen.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                     503
                   SPECIAL TOPIC WORKSHOP
      Promoting  Voluntary Compliance:  Environmental

          Auditing,  Outreach, and Incentive Programs
 1.  Promoting Voluntary Compliance:  Environmental Auditing, Outreach, and
    Incentive Programs, J. Hall 	505

 2.  Promoting Voluntary Compliance: Environmental Auditing,
    Outreach and Incentive Programme, H. M. Kajura	517

 3.  The Compliance Incentive Experience in Santa Rosa, California,
    J.W. Gam, M.L Grimsrud, D.C. Paige	527

 4.  Promoting Voluntary Compliance: A Valuable Supplement to
    Environmental Enforcement, M.M. Stahl	551
 See related papers from other International Workshop and Conference Proceedings.

  1.  Target Group Management Industry and Internal Company Environmental Management, Jit
    Peters, Volume I, Utrecht, The Netherlands

  2.  From Public Disclosure to Public Accountability: What Impact Will it Have On Compliance, F.
    Mv/n, Volume I, Budapest, Hungary

  3.  Use of Public Disclosure in Environmental Protection Programs to Enhance Compliance and
    Change Behavior in the United States, P Keough, Volume I, Budapest, Hungary

  4.  The Role of Industry:  Empowerment and Environmental Protection, J. Plaut, Volume II,
    Budapest,  Hungary

  5.  Public Disclosure and Its Impact on Compliance, N. Blackburn, Volume II, Budapest, Hungary
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        5<35


PROMOTING VOLUNTARY COMPLIANCE:  ENVIRONMENTAL AUDITING,
OUTREACH, AND INCENTIVE PROGRAMS

HALL, JOHN

Chairman, Texas Natural Resource Conservation Commission, 1700 North Congress Avenue - Suite
125, Austin, Texas 78701  United States


       SUMMARY

       Environmental policies and enforcement programs developed in the United States in the latter
part of this century, while successful in achieving significant reductions in environmental pollutants,
have  created a fragmented approach to protecting human health and the environment. Often, these
policies and programs have resulted in a shifting of pollution from one regulated medium to another,
instead of achieving real reductions. This approach, which is based solely on a regulatory philosophy
of command and control, needs to be reexamined.
       In the state of Texas, we have come to believe that the most effective approach  is one that
focuses on and attains substantial prevention and reduction of pollution.  Because a major shift in
public opinion has established broad-based levels of support for higher standards of environmental
protection and environmental quality, opportunities now exist to forge meaningful partnerships
involving businesses, local governments, civic organizations, and individual citizens for pollution
prevention initiatives.  In Texas, the emphasis on partnership has established an ambitious set of
goals to exceed state and federal requirements with regard to  toxic releases and generation of
hazardous waste and other forms of waste and pollution. The varied programs that have emerged
from  this  partnership—which are called Clean Texas 2000—harness the enthusiasm citizens have
shown for a cleaner and  healthier environment, provide assistance and incentives for regulated
industrial and municipal entities to voluntarily exceed state and federal requirements, and are based
on the premise that, without additional regulations, pollution reductions of enormous scale are feasible
and attainable in a short period of time.
 1      CHALLENGE AND OBSTACLE

       For all the wealth, technological resources, and commitment to environmental protection in
 the United States, we still have many places which have not achieved stated goals of clean water to
 drink,  clean  air to  breathe, and the elimination of environmental hazards.  In  fact, countless
 environmental challenges have yet to be addressed. Industrial and municipal discharges into our
 water supplies and non-point source runoff from urban and rural areas continue to pollute our rivers,
 lakes, coastal estuaries, and groundwater.  The volume of waste we generate overwhelms our ability
 to safely and adequately dispose of it, even though many billions of dollars are spent in this area
 each year. Air quality in almost 100 major urban areas fails to meet minimum health-based standards
 established by the federal Environmental Protection Agency.  In recent years, the chemical production
 industry in the  United States calculated that our annual  generation of hazardous waste would  fill
 enough 55-gaIlon drums to circle the Earth 22 times. Scattered throughout the country are 1300
 federal Superfund sites;  additionally,  there are 22,000 Superfund sites assigned to cleanup by the
 states, and 48,000 more sites are waiting to be assessed. These sites may be marshlands, warehouse
 districts, subdivisions, small-town airports, even coastal bays, but in each of them, unsafe disposal
 of toxic waste has posed and in many instances continues to pose a drastic threat to human health.
       The bottom line of environmental policy must be human health. But to citizens, government,
 and businesses, it is increasingly clear that there  will never be enough revenue  or enforcement
 personnel available to address all of these enormous challenges and clean up the ruinous ways of
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the past. If we are to safeguard our natural heritage, protect public health, and foster the prosperity
of future generations, we must rethink and revamp our entire approach to environmental enforcement
and compliance. Clean Texas 2000 is based on three  primary premises. First,  every business,
government,  organization, and individual can and should contribute to the  improvement  of the
environment  in Texas. Second, while a strong enforcement program  is an essential part of a
comprehensive environmental effort, industries must go beyond what state and federal laws require
for  compliance in order to give our citizens the environmental quality they want. Third, all efforts to
improve our environment should be recognized, and incentives should be developed to encourage
new initiatives. Nowhere is the evidence and realization stronger than in the state of Texas,

1.1     Texas overview

        Texas is the size of France or Spain, and with 17.6 million residents, it is the second most
populous state in the nation. Nineteenth century settlers were drawn by Its ranchland prairies, fertile
soil, and  long growing seasons—an agricultural bounty.  In the early twentieth century,  one of the
world's great reservoirs of oil and natural gas was discovered in Texas.  Since recovering from the
Great Depression of the 1930s, the     has become a powerhouse of heavy industry and, in recent
years,  high-tech industry. F:or example, Texas facilities account for 57 percent  of the United States'
petrochemical capacity and 25 percent  of its petroleum  refining capacity. In addition, the state is
blessed with a 367-mile shoreline on the Gulf of Mexico—an economic bonanza of shipping, tourism,
commercial and sport fishing, offshore oil and gas production. If Texas were a nation, its Gross
National Product would rank twelfth  In the world.

1.2    Environmental challenges

        But that great surge of population and economic growth has inflicted corresponding harm on
the environment.  Texas' toxic releases,and hazardous waste are a monumental concern. Current or
pending in Texas are 29 federal Superfund sites, along with 38 state Superfund sites whose hazards
do not meet federal standards of gravity but imperil human health nonetheless. The estimated cost
of cleaning up those sites will exceed $300 million by the end of this decade. And the number of
state Superfund sites is expected to increase greatly as more assessments are completed. Texas
generated 139 million tons of hazardous waste in 1991  (the most recent figures available) and more
than 520 million pounds of toxic releases into the environment. Texas jockeys back  and forth with its
neighboring state, Louisiana, for the expensive and sobering  distinction of leading the nation in toxic
releases into the environment; in a recent inventory by the federal Environmental Protection Agency,
our two states accounted for almost one-fourth of the nation's total toxic contamination of the air, soil,
and water.
        Texas is confounded by other massive environmental problems, as well. The Rio Grande River,
our long border with Mexico, is the most polluted waterway in the United States. In maintaining their
motor vehicles, Texans generate about 18 million  gallons of used motor oil each  year; they dump
much  of it on the ground or in storm drains, and it ends  up  in our rivers, lakes, and bays. Unused,
banned, or cancelled agricultural  pesticides  have been routinely buried, contaminating soil and
threatening groundwater. Few Texas  cities  have permanent collection programs of household
hazardous waste—common pesticides,  detergents, paint, solvents, yard fertilizers, swimming pool
chemicals—so they're routinely put out with the garbage  or poured down sinks.
        At an annual pickup and disposal cost of $1 billion, individuals and businesses in Texas send
nearly 20 million tons of trash to the landfills—among it, some of the 60,000 tons of household
hazardous waste generated each year, an estimated 25 million used oil filters containing up to  3
million gallons of oil, and the 34,000 used tires Texans discard every day. Designed to increase the
safety of landfills and prevent leaching of dangerous materials into soil and groundwater, the federal
government's new Subtitle D requirements have fallen heavily on communities in every state.  Certain
provisions will at least double the cost of building and maintaining new landfills. Many towns in Texas
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simply lack the resources to comply. By the year 2000, half the Texas landfills which existed in 1990
will be closed, arid solid waste disposal costs will have increased fivefold to tenfold,
       Four major metropolitan areas in Texas—Houston/Galveston, El Paso, Dallas/Fort Worth, and
Beaumont/Port Arthur, with a total population of 7 million—fail to meet the requirements of the Federal
Clean Air Act of 1990. Estimates of ttie total cost to local governments and the private sector of
complying with clean air mandates range as high as $200 billion. Four more urban areas in Texas,
where almost another fifth of the state's citizens live, have borderline air quality and couid lapse into
non-attainment. Compliance with that federal legislation  is one of the most urgent tasks facing our
state over the next decade. Apart from compelling public health concerns, built into the statute is a
formula that directly links together future economic growth and reductions in the levels of air pollution.
If Texas fails to address its air quality problems, it risks an effective moratorium on economic growth.

       Without question, Individual citizens can be educated and encouraged to alter their lifestyles
and help reduce the volume of pollution. But in Texas, 98 percent of the reported hazardous waste
and toxins are generated by 50 corporate facilities that tend to lie within the structures of corporations
known as the Fortune 500—which means they are the United States' largest, richest, and most
powerful.  Historically, state government in Texas has shown little inclination to challenge the status
quo in ways that would achieve  real environmental  quality and protection. Perhaps resonant of an
unbridled frontier philosophy, and no doubt mindful of the economic devastation of the 1930s, Texas
environmental policy and its approach to enforcement  and  compliance resulted from decades of
institutionalized teness. Often as not, regulated entities were actually victims, not beneficiaries, of
this approach; backlogs of work concerning permit  applications piled up for years on the desks of
state agencies arid  thereby slowed economic growth. Environmental policy in Texas was built on the
false precept that  economic  growth and environmental  protection are polar opposites, forever
opposed; We cculd have one or the other, but never both.
 2     WINDOW OF OPPORTUNtTY: A MAJOR SHIFT IN PUBLIC ATTITUDE

       As popular attitudes changed throughout the country, and the severity and magnitude of the
 environmental ills in Texas became more apparent, there has been a major shift in public attitude.
 The great majority of Texans support concrete actions by government to improve the environment.
 Public health is the overriding concern, but economic considerations have also come to the forefront.
 The natural resources upon which Texas' vast wealth was built are profoundly threatened, too.
       The Port of Houston, for example,  is the sixth largest port in the world. Ships bearing 140
 million tons of cargo each  year sail through Galveston Bay, a  large and fragile estuary that  is
 connected to the heavily polluted Houston Ship Channel. Recreational fishing in Galveston Bay directly
 contributes more than $600 million a year to the economy and generates $20 million in tax revenue.
 in addition, estuaries such as Galveston Bay are spawning grounds for Gulf of Mexico shrimp; with
 an annual  harvest valued at $46 million, it is the second richest commercial fishery in the waters  of
 the United States. The direct and indirect economic  contributions of Galveston Bay to the state's
 economy amount to well over $3 billion a year, and provide a basis for thousands of jobs.
       Three summers ago, marine scientists discovered a real threat to these valuable economic
 and ecological resources;  a toxic compound in the Gulf that kills shrimp larvae and sterilizes female
 shrimp. That poison is a solvent used in the manufacture of paints, cleaning fluid, and plastics. The
 scientists contended that it probably  washed outward from the Houston Ship  Channel but certainly
 was discharged at some point into Galveston Bay. Waves and runoff had already flushed the toxin
 far out into the Gulf. More than half the shrimp harvested in Texas waters migrate from Galveston
 Bay. In addition, because of sewage bypasses,  urban runoff, flooding, and other causes, valuable
 oyster beds are subject to permanent or temporary closure throughout Galveston Bay. The same
 disturbing  balance of economic and ecological concerns exists southward along the Texas coast at
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Corpus Christi, whose port is the nation's sixth largest, and whose recreational and commercial
fisheries contribute $365 million to the economy.
       Along with such sobering accounts, the shift in public attitude in Texas has been driven by
more positive forces. With no goading by government, but in direct response to their large clienteles'
desires for  a cleaner and healthier environment, many private  firms have discovered that
environmental responsiveness is good business. In addition to the public relations value,  it can
increase profits. In just over two years, a large AT&T facility in Mesquite, a suburb of Dallas,  saved
over $80,000 a year and reduced its waste disposal  costs by 96 percent by organizing a
comprehensive and competitive solid waste recycling program in its various departments, A Texas
Instruments facility in Sherman converted from a solvent-based paint process to a powder paint
system. They attained better product quality, eliminated toxic emissions and hazardous waste, and
saved $343,000 per year asmost immediately.
       In state government, the shift in attitude surfaced dramatically in the elections of 1990.  A new
governor, Ann Richards, a new lieutenant governor, Bob Bullock, and a new  legislature  enacted
measures that demanded greater efficiency and responsiveness of the environmental regulatory
agencies;  and committed  the state to aggressive goals and timetables that would vastly reduce
pollution and generation of hazardous and solid waste. Among the changes  made by the 1991
Legislature was the phased-in merger of the Texas Water Commission and the Texas Air Control Board
into the Texas Natural  Resource Conservation Commission.  The purpose  was  to  streamline
environmental enforcement efforts  and to eliminate duplicating and sometimes contradictory
regulations. During 1991, legislation was also passed requiring companies to develop and submit
pollution and prevention plans to the Texas Water Commission.

2.1    Task Force 21: A more aggressive environmental agenda

       In response  to these  directives, the Texas Water Commission began by recruiting a
broad-based advisory panel called Task Force 21 to help implement Texas' more  aggressive
environmental agenda Its members were drawn from the legal and engineering professions,  public
utilities, business associations, local chambers of commerce, city and county government, consumer
and environmental groups, and community organizations. The chairs were the state director of the
environmentalist  Sierra Club and  an executive of the DuPont Corporation—probably the first time
those entities ever joined in a common pursuit, at least in Texas. Task Force 21  provided invaluable
assistance in developing new rules regarding  hazardous waste  disposal, improving the permitting
procedures, and designing a long-term pollution prevention strategy.

2.2    Need for strong enforcement plus prevention

       The public is  demanding strong, corrective action when regulated parties act with repeated,
reckless disregard for human health and environmental quality. Effective environmental policy must
include a firm and aggressive enforcement strategy. But in Texas,  because of the enormous cost that
can be incurred,  most businesses want to prevent pollution and try to comply with environmental
regulations.  In many  cases:, those who fail don't know what the  regulations are, or how to comply.
Providing  companies with technical assistance and granting them a measure of flexibility in how to
comply with those standards greatly enhances the effectiveness of environmental regulations. In Texas
and throughout the United States, government has been forced to recognize the limits, and oftentimes
the counter-productivity,  of a regulatory  philosophy that emphasizes command and control.
Realization is growing that we will never be able to inspect as many companies as often as we want.
Realization is also growing that in subtle ways, we sometimes get the purpose of our efforts confused.
Our role is to reduce pollution and safeguard human health and environmental quality—not to enforce
for enforcement's sake. A major tenet of the new environmental  policy  in Texas  has been the effort
to harness this greatly changed  public mood and  channel this concern into  initiatives based on
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voluntary compliance—with particular emphasis on permanent reduction in pollution levels, across
all environmental media,
       That is not to say that all is now well in Texas, that every problem has gone away, that all
parties are happily on board. For example, one of the first actions taken by the Texas Natural Resource
Conservation Commission, shortly after the agency merger on September 1,1993, was to review the
operations of a prominent company that purchases other companies' toxic wastes and reprocesses
them into industrial fuel. It's an admirable concept, but in practice the  company had ignored two
enforcement orders of the old Texas Water Commission, four enforcement orders of the old Texas Air
Control Board, and a state court order regarding flagrant and repeated safety violations. The company
was mixing toxic wastes in tanks without  first conducting laboratory  tests on the possible
consequences. One night this practice set off a chemical chain reaction which almost resulted in an
explosion that could have subjected nearby  residents to a  catastrophic  toxic  cloud.  The
decision-makers of the Texas Natural Resource Conservation Commission voted to temporarily shut
the company down and suspend that part of the company's operations until an independent auditing
firm could establish that the company had complied with all state and federal safety standards. That
third-party audit has since been completed, the company has achieved compliance, and has renewed
its operations.  It would seem to be a reasonable and commonsense action for government to take.
But  in Texas, no company had ever been shut down for environmental violations, no matter how
outrageous and severe. It was unprecedented.
       The Texas Natural Resource Conservation Commission continues to take strong enforcement
actions when they are justified and required: Penalties  assessed over the past two years account for
more than 50 percent of such assessments by the state during the past decade. But by enlisting the
citizens and the  business community in a new partnership, we see strong evidence that more can
be accomplished—more reduction of pollution,  less waste  generated—than  if we  continue to
emphasize only command and control. The prospect of whole-facility actions and other consolidated
endeavors represents a tremendous opportunity for increased efficiency and voluntary compliance.
We believe that we can not only help bring  the state into compliance with existing regulations. The
challenge and out* goal is performance which exceeds those requirements.
 3     CLEAN TEXAS 2000

       When the old Texas Water Commission recruited Task Force 21 in response to the legislative
 mandates emanating from 1991, we ensured that the advisory committee was equally balanced
 between environmental and public interest groups on one hand, and business and local governments
 on the other. No element within the group commanded a majority of the votes. We made it clear to
 Task Force 21 that with the election of Ann Richards as governor, her appointments to the boards of
 the agencies which would merge  into the new Texas Natural Resource Conservation  Commission
 would carry out her directive to make measurable, large-scale pollution reduction and prevention our
 top priority. We told the advisors that we were inclined to accomplish that by regulation—unless an
 aggressive voluntary program could be established. With that framework and background, over a
 period of half a year Task Force 21 helped design a statewide, comprehensive, pollution prevention
 initiative  called  Clean Texas 2000, which Governor Richards and the old Texas Water  Commission
 launched April ?, 1992.
       The specific goals of Clean Texas 2000 are: to reduce hazardous waste and toxic releases
 into the  Texas environment by 50 percent by the  year 2000;  to reduce the solid waste going into
 landfills by 50 percent by the year 2000; and to educate every Texan to take personal responsibility
 for the environment. The program is a partnership among businesses, industries, local governments,
 schools, civic groups, and individual citizens committed to the achievement of those ambitious goals.
 The Texas Natural Resource Conservation Commission serves as a clearing house for project ideas
 and for  bringing partners together  with complementary resources. Tactically, Clean  "fexas  2000
 emphasizes environmental auditing to assure consistent  compliance by regulated  entities, public
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outreach and involvement, public outreach and involvement, incentives to exceed state and federal
regulatory standards, and measurement towards established  reduction goals, it has six key
components.

3.1     Clean Industries 2000

       The first component is Clean Industries 2000, Major improvements in the industrial sector are
essential if our cities are to comply with the Federal Clean Air Act and Texas is to reduce its staggering
output of hazardous and toxic waste.
       Membership in the Clean Industries 2000 program is reserved for those regulated  industrial
facilities or plants that commit to reduce the amount of hazardous wastes and/or emissions tracked
by the federal Toxic Release Inventory Program by at least 50 percent by the year 2000, In addition,
participating facilities agree to implement an internal environmental management program to assure
high levels of environmental compliance with state and federal standards; participate in a citizen
communications program involving the local  community; and support a community environmental
project  by  providing financial or in-kind services for one or more projects such as household
hazardous  chemical collection, groundwater protection,  or  a citizens' water quality monitoring
program,
       With regard to voluntary compliance, and the sheer volume of pollution reduced, perhaps the
most gratifying result of the initiatives undertaken in Texas has been the response to Clean Industries
2000, In the first year of the program, 75 charter members voluntarily pledged to reduce hazardous
waste generation by  almost 30 million tons and toxic emissions by 237 million pounds—reductions
of 57 percent and 62 percent, respectively.
       Projects and  pollution reduction schedules are reviewed annually in order for participants to
renew their memberships. Clean Industries 2000 companies are rewarded by the  Governor's
recognition,  eligibility in an annual awards competition, favorable mention in the press and a Clean
Texas 2000 newsletter, and use of the Clean Texas 2000 logo. The executives, managers, and boards
of directors of  these  companies have been motivated by a sense of corporate citizenship,
responsibility, and community. But they also have taken these steps because they know that pollution
reduction of such scale is technologically feasible and represent significant savings for them in the
realm of disposal costs.
       For example, in the past BP Chemical generated 16 million  pounds of hazardous waste a
year that could only be burned or disposed of by deep-well injection. Now through a new purification
process, that hazardous substance can be sold to the pharmaceutical industry and made into insulin
and used in research efforts to develop other life-saving drugs. The project cost several million dollars
but will  pay  for itself  in 2-3 years.
       Additionally, countless marketing surveys in the United States have shown a strong preference
among  consumers that is not lost on manufacturers. Recently, a polling firm engaged by  the Texas
Natural  Resource Conservation Commission found that 92 percent of Texans said they would be more
likely to buy a product from a company known  to be environmentally responsive. That was no surprise.
But on the other hand, 61  percent of the Texans polled believed that large corporations were "dragging
their feet" on environmentaJ issues. Powerful incentive lies within that statistical margin.
        Over 100 companies have now joined Clean Industries 2000. And of the 50 facilities that
generate 98  percent of the hazardous pollution in our  state,  31 have now agreed to reduce toxic
releases and/or generation of hazardous waste 50 percent by the end of this century.

3.2     Clean Cities 2000

        Clean Cities 2000 is: the second component of Clean Texas 2000. The purpose of Clean Cities
2000 is  to encourage cities to develop a comprehensive environmental program—including initiatives
that will help the state meet a 40 percent waste reduction goal established by the Texas Legislature.
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       The designers of this component were cognizant, on one hand, of the costly and pressing
Subtitle D federal requirements that would force the closing of many Texas landfills and greatly multiply
the cost of building new ones. Waste disposal costs were going to increase from $1 billion to $5-10
billion a year. On the other hand, so much of the 20 million tons of municipal waste now taken to
landfills for disposal was unnecessary and dangerous.  Leaves, brush, and glass clippings account
for nearly 20 percent of this waste stream, when yard waste could easily be composted and kept out
of the landfills; evsry Texas household produces 15 to 22 pounds of hazardous waste each year, and
citizens who recognize that danger have had few options of safe disposal; plus all the used motor
oil and filters, used tires and lead auto batteries, and agricultural pesticides that are either dumped
on the ground illegally or sent to landfills.
       Communities may voluntarily participate in the Clean Cities 2000 program by satisfying several
key  requirement. Phase I requires all cities to implement solid  waste recycling and reduction
programs to attain a goal of 3.15 pounds per capita, per day disposal  rate by the year 2000. This
figure represents a 50 percent reduction of the statewide average disposal rate in 1991. Flexibility is
given to cities to prescribe which recycling and source reduction programs to implement to achieve
the  reductions.  Most comprehensive  programs include community-wide recycling,  composting
programs, and participation in used oil and used tire collections. Every successful program includes
a strong  local public education program.
       In Phase II, cities with a population of 50,000 or greater select from a menu of water and air
quality or conservation programs to  implement annually.  Program examples include city-wide
volunteer water  quality monitoring, programs  to reduce non-point source pollution, and  public
education programs to educate citizens about the contribution of motor vehicles to air pollution.
       Twenty-three cities, large and small, joined the Clean Cities  2000 program in the first year.
Smaller cities formed regional partnerships to work collectively to achieve the program's goals. The
Texas Natural Resource Conservation Commission provides member cities with statewide publicity
and recognition, technical assistance and training, public education materials and bonus points in
scoring of competitive statewide recycling grants. This year, more than $10.2 million will be made
available to local governments, public  institutions, and non-profit organizations to help implement
recycling and source reduction  programs. Funding  for the grant program comes from a portion of
the solid waste tipping fees paid to the state by landfill operators.
       Additionally, about 19 million tires have been collected and shredded (a modest amount for
recycled use in  asphalt manufacture and highway  construction) and 6 million  used auto  batteries
have been recycled. Over 1000 private businesses have established public collection centers for used
oil and oil filters.
       The  Texas Natural Resource Conservation  Commission has also  found that enforcement
measures can themselves be an important form of public outreach and revenue enhancement. In
prior decades, revenues accrued by enforcement actions were deposited in the state's general fund,
where it  was unlikely  they would be used for environmental purposes. Now, enforcement revenue
may be  used for supplemental environmental  projects at the local level.  Under this program, 50
percent of penalties collected through  enforcement  can be used for local environmental cleanup or
education programs. For example, one Texas company cited for arsenic contamination agreed to a
$6 million buyout of affected  private  properties around the facility.  Of  the additional penalties
assessed, $1.5 million was channeled to agricultural  pesticide collection,  household hazardous waste
collection, and other local programs. These supplemental environmental projects have become a
valuable tool in advancing the broad aims of Clean  Cities 2000.

3.3    Clean Texas 2000: Texas Watch

       The third component of Clean Texas 2000 component is Texas Watch. This program's purpose
is to provide an organized means of channeling the  enthusiasm of individual citizens into substantial
environmental protection projects. Citizen volunteers are recruited and trained in three  areas of
pollution control  and prevention:  water quality and environmental monitoring; local groundwater
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protection activities; and community collection of household hazardous waste, agricultural chemical
waste, and empty pesticide containers.
       Collection of  household and agricultural hazardous waste is advanced through periodic
regional one-day events, as well as more costly permanent collection centers. In 1992, 200 tons of
banned or unused agricultural pesticides were collected from farmers for proper disposal, and 97,000
pounds  of agricultural pesticide containers were recycled. This rural program will be expanded in
1994 to  include collections of used tires and oil.
       Three thousand Texas Watch volunteers have been trained  by the Texas Natural Resource
Conservation Commission to document and safeguard the water quality of lakes,  streams, and rivers
in their communities. In cooperation with river authorities and local governments, they collect samples
of surface water supplies on a weekly basis, Often, the samples collected by Texas Watch  volunteers
identify problems and trigger mechanisms to conduct more in-depth reviews.
       Facets of the Texas Watch program have  been adapted from the highly successful public
beach cleanups conducted by volunteers enlisted by the Texas General Land Office. That program
has resulted not only in extensive news media coverage and cleanup of tide-washed beach debris
that local governments could not manage; it has heightened public consciousness and support for
oil spill prevention and response plans and enforcement of a treaty banning ocean dumping of solid
waste by the shipping industry.
       Transferred by agreement from that agency to the Texas Natural Resource Conservation
Commission, the Texas River  Cleanup  Program enlists a  similar partnership of  civic organizations,
school clubs, government, local employers,  and individual  citizens. In April  1994, about 5000
volunteers will participate in the first cleanup of the Houston Ship Channel and lower Galveston Bay
watershed. Other cleanups lire scheduled for Oyster Creek, the Colorado River, and the Guadalupe
River, Combined with the regular monitoring of the Texas Watch volunteers, these cleanup drives will
not only cleanse the shores and shallows of debris; they will greatly assist the state in protecting our
freshwater resources and coastal estuaries.

3,4    Clean Texas 2000; Public awareness and education

       The fourth component of Clean Texas 2000 is public awareness and education. This critical
component has a simple premise:  Provide all Texans with a list of practical tilings they can do to
improve the environment because if they know what to do, they'll do it.
       A public relations campaign emphasizing radio and billboards targets 80 percent of the state's
residents and conveys messages such as "You dump it,  you  drink it" and "Don't bag it, leave it a
lawn." Enhanced by auto bumper stickers, T-shirts,  and other promotional materials, the results of
this campaign have  been impressive. For example, calls to the state requesting information  on
composting increased 3000 percent after the first campaign began.
       In addition, 5.6 million copies of the Clean Texas 2000 Home & Garden Guide will  be
distributed in 1994;  the publication presents numerous things people can  do to improve the
environment, including how to compost, information on buying  recycling products, and methods and
products  available to gardeners and landscapers  that  reduce pollution, The Clean Texas 2000
Information Center,  established in April 1992, provides free  how-to  materials  on virtually  any
environmental topic to users of our toll-free telephone service; on the average,  the center receives
450 calls a week.
       Another goal  of the public education component is to  provide every school in Texas with an
environmental curriculum and to train the teachers who will use it. To date, 2300 elementary school
teachers have been trained to present a curriculum on solid waste and recycling through a partnership
with the non-profit organization, Keep Texas Beautiful.
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3.5    Clean Texas 2000: Incentives and public recognition

       The fifth component of Clean Texas 2000 provides incentives and public recognition. Each
April, outstanding environmental projects and accomplishments are recognized by the Governor at
the annual Governor's Awards Banquet for Environmental Excellence.
       One award Is given in each of the  following categories: large business—technical; large
business—non-technical; small business; government; civic/non-profit organization; education; youth
organization; media;  agriculture; and  individual. In addition,  a number of special awards may be
given.
       The initial submissions and awards in that spirited competition presented skinning evidence
of what innovation Texans are bringing to protection and improvement of environmental quality, A
high school marine science class in Beaumont is studying beach debris and Gulf of Mexico currents
to better Identify the  sources of pollution in  the Gulf, In the city of Piano, 75 percent of its 40,000
households participate in a curbside recycling program. The small-town post office  in LaPorte
developed an inventive and effective means of recycling bulk shipments of undeiiverable "junk mail."
That technique is now being adapted by postal delivery systems in much larger cities. Among the
corporations recognized at the first awards ceremony was Texas Eastman in Longview. This company
developed  a new valve packing system and  testing program that prevents and monitors fugitive
benzene emissions ten times better than what is required by law. That technological advance is
directly applicable to a wide range of industries. Fisher Controls International in McKinney has
established a plan to eliminate all pollution discharges by 1995. They have already eliminated or are
recycling 95  percent  of all solid waste that previously went to landfills—a 1600 ton reduction, and
they have reduced hazardous waste generation by 90 percent.

3.6    Clean Texas 2000: Increased efficiency and responsiveness

       The sixth key component of  Clean Texas 2000  relates  to increased efficiency and
responsiveness by government. The programs and goals contained in Clean Texas 2000 represent
enormous concessions and voluntary efforts by regulated industrial facilities and municipalities. But
in helping to design these  programs and set these goals two years ago, Task Force 21 made it
abundantly clear that state government would have to make Improvements and honor its own end
of the bargain. Specifically, these advisors  demanded  and  received a commitment by the Texas
Natural Resource Conservation Commission to  be more efficient with  regard to environmental
permitting; and  to provide a comprehensive range of technical assistance—especially to small
businesses and small cities,
       Two years ago, at both  the Texas Water Commission and Texas Air Control Board, permit
backlogs were commonplace. In some  instances, it took three to six years for permitting decisions
to be  finalized. Quite properly, companies argued that if they were willing to commit to pollution
reductions that exceeded state and federal requirements, in return they should expect more efficient
decision-making with regard to their permit applications. At both agencies, prior to their  merger on
September, resources were committed and work schedules expanded to eliminate those backlogs.
That will be completed in 1994. In addition, we have substantially streamlined the permitting process
so that across the; board, we will be able to make permitting decisions in about half the time required
in the  past.
       In doing so,  we have found this exerts a significant favorable impact on Hie  environment.
Quicker turnarounds  benefit all parties. Most of the permit applications processed each year do not
concern construction of new facilities. Rather,  they are renewals, at intervals of five to ten years, of
existing permits.  Because of changes in federal and state regulations, the renewed permit usually
carries witii it tougher environmental protection guidelines than the ones preceding it.  So when the
Texas Natural Resource Conservation Commission processes these permits applications at a greater
rate of speed, it  tjenefits Industry while at the same time implementing more stringent environmental
standards. For example, under federal law the state is required to upgrade its water quality standards
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every three years. We did that in Texas in 1991, and are in the process of again upgrading in 1994.
The change  in standards in 1991 has had the effect of reducing, on the average, permitted water
pollution discharge by as much as 35 percent.
       in response to the request for a comprehensive set of technical assistance programs, we first
put in place  a wide range of seminar-style sessions relating to every program we administer. They
are offered to regulated entities on an ongoing basis at a very low cost. Over 50 major technical
seminars will be held in 1994. In addition, a team of engineers provides on-site assistance to  help
industries  solve pollution problems, and  industry-specific workshops are then  held to transfer this
appropriate pollution prevention technology to similar kinds of businesses.
       Special emphasis on all our programs is given to small businesses, including workshops,
training, technical assistance, and regulatory considerations. For example, in the attempt to achieve
compliance with the Federal Clean Air Act, it is extremely important to reduce in every way possible
the financial  burdens imposed by those requirements on small businesses—the sector where much
of the new jobs creation in Texas is taking place. For small businesses such as bakeries, dry cleaners,
and printers, the cost of achieving compliance has been projected at $1-3 billion. We are working
closely with  business representatives and reassessing state air control standards to identify ways
their emissions could be reduced  more cost-effectively. Recently, these discussions and  on-site
consultations identified measures in which printers in Texas' non-attainment areas can achieve about
the same  pollution  reductions at  a cost trimmed from $40 million to $6 million.
4     BEYOND COMMAND AND CONTROL: A NEW PARADIGM

       Much remains to be done in the years ahead. Texas must build on these partnerships in a
way that achieves real results. We need to convince every one of the companies which generate
almost ail of the pollution in Texas to join Clean Industries 2000 and embrace its agenda and goals,
We are committed to accomplishing that by 1996. We have to continue and expand our efforts to
reduce the municipal solid waste stream. Some mandates may be required—such as a ban on yard
waste in our landfills. Additionally, we need to facilitate development of new markets for recycled
materials. Under the provisions of the Federal Clean Air Act, in non-compliance areas air emission
credits are necessary if new businesses are to be established;  these critically important air emission
credits can be gained in large part through aggressive promotion of clean-burning, alternative motor
fuels. We need to devise new strategies that address the unique needs of small towns and agriculture.
And a comprehensive pollution-prevention initiative for  the Texas-Mexico  border—encompassing
hazardous  and  solid  waste  management,  air  quality, water  purification, and  wastewater
treatment—must bring real environmental quality and protection to people who live along the Rio
Grande.
       But in a broader context, we need to fundamentally re-examine the way we are managing the
environment  and  its protection. Our emphasis  should be on  reducing pollution—not on dictating
engineering,  technological, and manufacturing processes. If we continue to draw such close and
narrow focus on  each medium of pollution, the risk we run is that while minimum environmental
standards appear to be met, in reality the pollution is just shifted from one medium to the next—from
air to water to hazardous waste. The net pollution of the global environment could remain the same.
       The entire environmental philosophy of command and control so prevalent in the United States
needs to be  reconsidered. In the future, we may need to rethink and rebuild our paradigm. Instead
of placing all our emphasis on a set of technology-based standards, we ought to consider an optional
set of performance standards in which regulated industrial facilities and municipalities are directed
to reduce their air pollution, water pollution, and waste generation by a certain percentage within an
established  time frame. This could be coupled with  independent environmental auditing and
computerized monitoring systems. As we have found in certain enforcement agreements in Texas,
the technology already exists. Terminals at the industrial  site and terminals in our regulatory offices
enable both parties to agree definitively on how much pollution is being generated and how much
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is being reduced. Instead of the prevailing myopia—which is clearly failing to measure up to the tasks
we have assigned it—we need to adopt a more holistic, facility-based approach that establishes
performance standards of pollution reduction over reasonable periods of time. And tools  at our
disposal such  ss environmental auditing,  computerized monitoring systems, public outreach,
technical assistance, and incentives can help ensure consistent high levels of compliance.
       At the Texas Natural Resource Conservation Commission, we have adopted an outlook that
we have to be bold enough to recreate; and courageous enough to do things differently. The old
approach to environmental policy  and enforcement in Texas has not worked as well as we need; and
there is no evidence it will ever protect public health, safeguard our natural heritage, and preserve
the prosperity of generations to come. Driven by necessity, and enabled by a major shift in public
sentiment, a partnership of government, individual citizens, and businesses has in this decade set
the tone for a new era of environmental policy and enforcement in Texas. We have been presented
with a window of opportunity. We  know we cannot allow that opportunity to fade, and that window to
close.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        517


PROMOTING VOLUNTARY COMPLIANCE: ENVIRONMENTAL AUDITING,
OUTREACH AMD INCENTIVE PROGRAMME

KAJURA, HENRY MUGANWA

Minister of Natural Resources - Republic of Uganda


       SUMMAFIY

       Although Uganda is al present, classified as one of the poorest countries in the world, it
nonetheless has a favourable climate and a rich endowment of natural resources.  Until the
mismanagement of Uganda's economy in the 1970s and early 1980s, the country fared much better
than many developing countries.
       Uganda's natural resource base contributes the bulk of its gross domestic product (GDP),
export earnings, and employment opportunities on the 202,000 km2 of area supporting close to 17
million largely rural people. The production of most of the natural resource derived commodities are
largely subsistence (in agriculture) and artisanal (fisheries). Natural resource based activities also
support the country's small manufacturing sector although one can argue that the linkage between
the two needs further  strengthening.  For example, the manufacture of cigarettes, cement,  sugar,
textiles and furniture are based on local resources.


1      INTRODUCTION

       From the foregoing it is clear that Uganda's environmental and natural resources provide
products and services that support economic growth and quality of life. At the same time unfortunately,
environmental stresses including problems of deforestation, land degradation,  over-fishing, lack of
proper sanitation, and industrial pollution are real in present day Uganda and threaten to undermine
the status of the country's natural resource base and quality of life of its people. For example, it has
been estimated that the combined annual cost of environmental degradation in terms of biodiversity
loss, deforestation, soil erosion, water hyacinth pollution, and water contamination is about US$457
million (Figure 1).
Figure 1:  Estimated Annual Cost of Environmental Degradation In Uganda (1991)
                Soil erosion
         Water contamination
            Biodiversity loss
               Deforestation
             Water hyacinth
                                                       396.0
                  35.0
      15.0
  5.7
5.5
                                                US $ millions

       In general, it is thought that the  annual cost of environmental degradation  represents
 something in the order of 4 -12% of GDR However, many have argued that costs associated with
 environmental degradation are in fact much higher. They argue that current cost estimates exclude
 a number of items such as the drainage of wetlands and the management of wastes,
       From a policy point of view then, the dynamics of adjustment involving the amelioration or
 complete removal of the processes of environmental  degradation  and enhancement of the
 environment, are of crucial importance. Whether the objective is to maximize the net benefits arising
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from resource extraction or simply that of survival in fragile ecosystems  (such as arid areas), in
Uganda's context, the behaviour of both the population and natural systems, the impact of
management actions and the distribution of benefits and costs over time have to be carefully studied.
The behaviour of the environmental system (including natural resources) must first be analyzed in
physical and economic te/ms; benefits and costs of alternative management actions and responses
should be estimated, and  strategies then evaluated  on the basis of the present value of benefits
generated,
       Uganda is completing its National Environmental Action Plan (NEAP) Process after a period
of two years. The  lessons learnt, among  others, are that every resource user can  contribute to
sustainable economic development provided his/her economic, social, cultural, and attitudinal values
to the resources themselves and how these influence  the use and management of the resources are
well understood. This paper gives the regulatory and command perspectives which in Uganda had
been taken as best methods to instill compliance in environmental management. The limitations of
this approach and the resison  to promote voluntary compliance  through  other complementary
methods like incentive and outreach programmes are  the subjects of this paper. The extent,
application and basis for  environmental audits in relation to these complementary methods in
particular and to the general management of the environment will also be discussed with particular
reference to the Ugandan experience.
2      SUCCESSES AND LIMITATIONS OF REGULATORY FRAMEWORK IN UGANDA

       In Uganda there  are  more than 60 Statutes, decrees and  by-laws addressing specific
environmental and natural resource issues. Some of these are duplications of laws from either our
colonial masters (Britain) or other countries. Very few of them have been revised to reflect the desired
approaches in  environmental management e.g. land registration, wildlife registration and forest
registration. Many of them have remained archaic and therefore less responsive and anticipatory to
new challenges of environmental management. For example, the assumption that the government
was supposed to be the key actor has been found during the NEAP process to be a wrong premise.
Also the laws paid very little  attention to holistic approach in the  natural resource management.
Consequently, it has  been typical to find two or three outreach programmes targeted to the same
resource user within a specific eco-system. To make matters worse the regulatory framework did not
cover certain aspects like wetlands, Environmental Impact Assessment, Environmental  Audit and
bio-diversity conservation outside the protected areas.  Additionally, there are inadequate clauses
within the laws to compel institutions to make budget allocations for disaster preparedness. Penalties
and fines provided for in the existing regulatory framework are  so low that they do not compensate
society for the damage done to the resource or the environment. Because all laws were imposed on
resource users from the above, resource users/managers did not develop the stake-holding in those
resources.
       In some cases,  government officials charged with responsibility to oversee compliance have
been culprits in malpractices of poaching, pit-sawing and authorising human settlement in protected
areas.  The appreciation of people's values of the environment in relation to their culture was not well
recognised,  understood yet you cannot impact environmental consciousness and enforce cultural
change through command and regulation. For example, among the Karimojong and Bahima there
is cultural prestige attached to the number of cattle one owns  as opposed to their quality. In areas
occupied by these groups of pastoralists, rangeland  degradation is a  significant environmental
problem.
       As mentioned earlier,  the economic mismanagement  of the  economy  during the political
turmoil of 1970s and  early 1980s, staff morale, financial resources and institutions that were used to
enforce compliance were eroded down. Despite modest recovery in the economy, particularly after
1986, there is still some  time to go to marshall these resources adequately. Besides, Uganda's number
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of protected areas has doubled since 1985. These limitations and new developments have clearly
brought into question the viability of command and regulation.
       Despite these short-comings of command and regulation, Uganda can still boast of having
protected its rich bio-diversity particularly within the protected areas using command and regulation.
Secondly different people have always had point of reference in resolving some of the malpractices.
During the NEAP process the  laws and decrees were used as baseline information in formulating a
better  legal and policy framework. Agreement  has been reached that owing to  the limitations
mentioned above and good experiences gained, its high time to supplement command and regulation
with voluntary compliance through among others outreach and incentive and disincentive
programmes.
3     THE EXPERIENCE OF INCENTIVE/DISINCENTIVE PROGRAMME IN UGANDA

       An  incentive is that which incites or motivates desired behaviour from  local communities,
government,  NGOs and  international organisations to sustainably manage the environment and
natural resource base. On the other hand, a disincentive acts to rectify an already observed negative
behaviour or attitude. Incentives/disincentives can take on different forms including but not restricted
to being economic, financial, social and cultural. Whatever  is put in place will be meaningful or
desirable as long as the benefits from the use of the resource due to that intervention is equal or
greater to the costs of restoring that resource once its degraded. Corollary to that perverse incentive
will act in the reverse, that's to say it will influence that type of behaviour which causes society to
       From  the  above,  there  is  logical  cause  to continually monitor  and  ensure  that
 incentives/disincentives do not turn perversive. And it Is, at this level that environmental audits can
 be used to offer signals.
       Even though outreach and incentive programmes have strongly been recommended under
 the proposed  environmental law and policy, suffice to mention the experiences gained prior to the
 formulation and the way forward for more utilization of these methods. Incentives in Uganda have
 been of two kinds.  Direct ones (linked to specific rewards for achieving specific objectives)  and
 indirect ones  (which do  not  call for direct financial appropriation but which can come  through
 application of  fiscal, service, social and other similar policies). Both these type of incentives can be
 applied or are provided to the local communities, by the government. Some can have regional and
 international origin.
       In Uganda Bwindi Impenetrable and Mughahinga Trust Fund worth $4 million is an example
 of an incentive from the international community for use in a conservation of rich bio-diversity in these
 parts. The local communities are to benefit in the ratio of 3:2:2 in support of local community micro
 projects, support to local administrative structure and  grants for research. This  incentive  is to be
 applied in an area where there is the highest population density which has been responsible for land
 degradation. It is by no surprise that the same area is benefitting from another form of incentive
 (Agroforestry Technology) under a project entitled Development Through Conservation (DTC).
       Other forms of incentives have been quantitative in nature e.g. allowing communities to own
 woodlots in the buffer zones of Mt. Elgon under Mt. Elgon Conservation Project, Likewise, in different
 towns of Uganda the private sector has been allowed to own woodlots on  government land under
 peri-urban plantation project. To-date under Peri-urban Forest Plantation Project, 630 ha have been
 planted by individuals and  community organizations, and 1,200 ha planted by the Uganda Forest
 Department as woodlots for the supply of fuelwood, poles and posts.
       It is  however, important to mention that even though the proposed environmental policy and
 law are  not yet approved, the public  awareness and concern for sustainable natural resource
 management  is influenced  by the  introduction of these incentives. In the very  recent past other
 incentives have been proposed e.g. those in respect of entry fees into National Parks (Ugandans are
 required to pay less than their counterpart foreign tourists).
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4      THE ROLE OF OUTREACH PROGRAMME IN ENFORCING ENVIRONMENTAL
       COMPLIANCE

       The outreach programme too can be a key intervention in enforcing voluntary compliance. Its
success however, depends on how relevant the approach used is compatible with the resource users
on one hand and on the attributes of the resource itself on the other. In Uganda, most resource users
are rural, and about 50% are illiterate, The majority of them are poor, and in striving to reduce poverty,
they  incur high opportunity costs to be called to attend outreach  programmes, particularly if they
become monotonous. In Uganda, government encourages the outreach programmes as inputs into
the enforcement of voluntary compliance. This is mainly so because      programmes offer four
interrelated inputs  into sustainable natural resource use and environmental management. These are
positive attitudes towards conservation, knowledge and skills about sustainable use and information
about options available to resource users - ranging from the likeiy future values of the resources
themselves to the  quality and type of technology that can be used to sustainably use the resources,
      , Whereas government itself participates in the outreach programme through various extension
agencies,  it also recognises great contribution from the non-governmental organisations, community
based groups and even environmentally conscious individuals. Good .and bad lessons alike have
been learnt as far as their contribution to enforcing voluntary compliance is concerned. First, they are
not well coordinated both  at national, local and grassroot level to the extent that occasionally some
element of competition to offer outreach services is observed  by those meant to benefit from it.
Collaboration of  effort can,  I believe,  produce better results.  Secondly,  sustainable outreach
programmes must be matched with local customs and traditions  as a basis for introducing further
change. Previously, the tendency was to look at local methods of resource use and conservation as
either "backward"  or "unsustainable" without looking  into the historical perspective of the resource
users and why according  to their own judgement, the method used is thought to be superior.
       From the above two examples,  it would  appear that the type of outreach programme that
enforces voluntary compliance must be innovative. It  must  be innovative in a sense that it must be
sensitive to the quality of audience being addressed (i.e. literacy, age, gender, status, etc) and also
sensitive to socio-economic variables (i.e. time, audience that can act as change agent, and freedom
to implement what is taught). Above all, the outreach programme must be sensitive to the attribute
of the resource itself. Resources  in threat of extinction may require more effort and financial cost to
implement than those resources  still in abundance but still  requiring more sustainable use. In such
extreme cases, the very reasons why one resource is more threatened than the other throws a big
challenge to the design, timing, and implementation of the incentive and outreach programmes and
carrying out of environmental audit. Thus, each situation must be handled according to its own merit.
 5     LESSONS TO LEARN FROM THE INCENTIVE AND OUTREACH PROGRAMME

       A number of mistakes have been committed and these are being looked at from the positive
 point of view of avoiding future errors. Only few examples will be given:
       « Case(s) have arisen when the local communities have  been given part of their
         share  of benefits from the use of a resource by  a concessioner prior to  the
         community being consulted and informed. This resulted in delayed utilisation of the
         money as well as also in struggling to have accessibility to it.
       • Going by the examples of similar communities as above in buffer zones,  the
         biggest question that arises is to define the "proximity" of the resource user before
         you  define as to  who should share in the benefits or  be compensated.  It has
         appeared that the issue of who  to be targeted by "outreach  programme"  or
         "incentive programme* may have no relation to nearness to a resource - On the
         contrary it could be the  reverse. This has  a great bearing in  the enforcement of
         voluntary compliance.
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         The third mistake related as to who should be the right extensionist in the outreach
         programme - should it be someone who is well qualified or should it be someone
         who shares the same social and economic values (particularly in relation to the
         natural resource) within the same community? This issue is critical because quite
         often once  a  certain "foreign" extensionist  leaves  the area,  the  outreach
         programme sometimes ceases.
         The  government has farm  institutes which  it  supports  in their  outreach
         progranmes. Some of them have commendable demonstration plots. Experience
         has  shown however  that few farmers get access to  see these demonstration
         schemes.
6     ENVIRONMENTAL AUDIT

       By definition,  environmental auditing is  "a  management comprising of a systematic,
documented, periodic and objective evaluation of how well environmental organisation, management
and equipment are performing with the aim of helping to safeguard the environment by: (i) facilitating
management concerns of  environmental practices, and (ii) assessing compliance with company
policies,  which should include  meeting regulatory requirement" [UNEP/IEO (1990) Environmental
Auditing  UNEP].
       Whether  use is made of Incentive or outreach programmes, there is need to carry out
environmental audits on these programmes and on the environment in general. Since outreach and
incentive programmes are  some of the management approaches  to environmental management,
environmental audits apply to them.
       In Uganda, environmental auditing has not been strongly and directly emphasised. It has
tended to be narrow in scope in the sense that few environmental aspects are subjected to inspection
by specific departments e.g. the Department of Occupational Health and Hygiene being in charge
of safety of workers in  industrial establishments; Mining Inspectorate being in charge of miners; and
Public Health being in charge of health related pollution.
       Wheni Jt comes to carrying out of financial  audits, by accpunting/audit firms on government
parastatals, and private sector, environmental Issues  have not  been  of prominence. This is partly
because environmental policies are not well defined in most memorandum and articles of association
of most organisations  nor are the audit firms well equipped to handle such responsibilities.
       Despite the above  weaknesses, environmental auditing of the environment in general and
specific aspects like outreach and incentive programmes is going to be compulsory. This therefore
requires  that Ugsinda puts in place a mechanism  to make best use of these environmental audits.
The preparation will include among others, the following;
       « Baseline data on the state of the environment against which the impact of outreach
          and incentive programmes  are to be monitored  and judged.  The state of the
          environment has to be monitored regularly. It is a pleasure to mention that Uganda
          has just completed its first State of the Environment Report to be published soon.
          This will be published  bi-ennualiy. In addition, funds permitting the exercise will be
          extended to  cover the compilation of district environmental reports(profiles) - a step
          that will enable the impact  of outreach and  incentive programmes in enforcing
          voluntary compliance at local level (rather than national level) to be made.
       • In  order to  give "a  true and fair" opinion as to whether resource users are
          complying,  it is  mandatory  that objectively verifiable indicators of the desired
          actions or improvement made  in environmental management  be put in place.
          Uganda is committed to gradually developing these,  too, for different aspects of
          environmental management. As a support  intervention, the institutional capacity
          building in  environmental information collection,  analysis  and  interpretation for
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522                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
         various users wilf be an integral component of developing objectively variable
         indicators of environmental auditing.
       • The  existing departments   (e.g.  Occupational  Health  and  Hygiene,  Mines
         Inspectorate and Public Health) must be strengthened to help either in establishing
         the necessary standards/or carrying out environmental audits.  Accounting audit
         firms and the Department of the Auditor General must re-orient their roles so as to
         play a part in environmental audits, particularly in the organisations they audit.
         Further,  new and more specialised agencies must come up to play the role of
         environmental audit. It is hoped in the case of Uganda,  that the proposed National
         Environment Management Authority will play a key role in this area as  one of its
         main functions.  The emphasis in these environmental audits will however not only
         be the desired end result per se, rather they will have also to look at, among others,
         the procedures, |Dolicies and rules used in enforcing voluntary compliance. It is
         from these measures that resource users can learn from experiences of others, if
         they so wish to replicate the methodology (outreach or incentive programme) rather
         than the  end result per se.
       • For the  results  of "environmental audit" to be  meaningful,  there  must be some
         mechanism to "reward" those voluntarily complying and to "penalise" those failing
         to meet the set standards. Failure to do that implies that environmental  audits will
         be abused, and will fail to support the legal and policy framework that has been
         proposed under NEAR
       Indeed, all  the above, are well intentioned measures and interventions  for environmental
management. While that be! the case,  it is anticipated that the use of environmental audits may not
be effective unless the public-generally is well informed or motivated through outreach and incentive
programmes to play a complementary part with  the government.
       Coming first on the list of likely problematic areas is the informal sector. It is strong, widespread
and very powerful. Because of its poor relation with formal, legal and bureaucratic institutions, it needs
its own approach  - particularly as far  as applying environmental auditing to it is concerned. The
second problem area that v/ill certainly arise is that whereas standards  against which to  measure the
application of economic incentives may be institionalised, the case may be  more complicated in case
where social incentives override. The value perspective point of view of the resource users - if this
has to bear in systematic  design of methodologies to enforce voluntary compliance - will be an area
where the applicability of uniform environmental standards for  compliance may not  be an easy
exercise to implement.
 7     THE WAY FORWARD

       From the foregoing sections, it is  obvious that regulation and enforcement of laws is
 inadequate and  at times inappropriate or counter-productive in ensuring a sound environment for
 Ugandans. Instead, Uganda is opting for the introduction of suitable incentives and disincentives to
 foster voluntary compliance with principles of sound environmental management. The /a/son d'etre
 for opting for measures that emphasize incentives and  disincentives is to ensure that individuals,
 groups,  businesses and other  economic entities have appropriate mechanisms to promote
 sustainable resource use and environmental protection.  Examples  of  proposed incentives and
 disincentives are shown in Table  1. The new  approach, therefore,  places great  emphasis on
 macro-economic measures which the Government can use to encourage voluntary compliance. These
 measures are of two categories: direct government expenditures, and measures to influence private
 behaviour.
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                                                             523
Table 1.  Examples of Proposed Incentives and Disincentives in Uganda
Sector
Proposed Incentives or Disincentives
Agriculture
Wherever appropriate and practicable offer land users tax incentives for
soil and water conservation and good husbandry practices.
Forest Conservation and Management  1.
                                    2.
     Local community involvement in the planning and management of
     protected areas and in the sharing  of benefits derived from these
     areas is crucial for the conservation of forest resources.

     Private forestry should be encouraged by appropriate incentives,
     extension services, marketing assistance and increased security
     of land  and tree tenure.
                                    3.   Prices paid for forest products should reflect their true value
Wildlife Conservation and Management 1.
                                    2.
                                    3.
                                    4.
     Promote collective responsibility in management, revenue sharing
     and local community participation in wildlife protected areas.

     Provide more direct benefits to local communities from wildlife
     protected area activities including the return of a percentage of
     revenue to them.

     Establish concessions, management contracts, joint ventures, and
     production sharing agreements to develop tourism where
     appropriate,  and charge fees commensurate with the value of the
     resource.

     Promote the sustainable use of wildlife resources through private
     sector activities such as game ranching, crocodile farming, etc.
 Livestock and Rangelands
 Management
 1.   Where feasible, use tax incentive for ranchers to respect
     appropriate stocking rates.

 2.   Improve marketing outlets to control livestock stocking rates,
     especially in pastoral areas.

 3,   Educate farmers about the value of keeping fewer but more
     productive animals instead of large unproductive herds.

 4.   Study the potential for wildlife ranching as a supplement for
     livestock ranching in semi-arid regions of Uganda.
 ENERGY
                                    3.
     Improve local capacity to manage woodlands by encouraging
     peoples' participation in forest planning and management.

     Encourage the private sector to generate and distribute
     hydro-electricity by removing the monopoly in generating and
     distributing electricity by Uganda Electricity Board (UEB)

     When feasible, provide economic incentives for private and
     institutional fuelwood plantations
  Source: National Environmental Action Program (NEAP), 1993.
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7.1     Direct government expenditures

       Direct Government expenditures are justified on the grounds that individuals are unable to
secure a reasonable return from undertaking such action; or where it is not feasible or economic to
delegate responsibility to individuals or communities. In this context, the provision of information and
the undertaking of public works projects by government are justified on the premise that these are
direct strategies that generate observable action and explicit products: An example is the restoration
of environmentally degraded areas (e.g. tree planting on bare communally grazed hills); and pertinent
research, extension and education.

7.2    Influencing private behaviour

       As much as possible, direct government expenditures are to be limited to where they are
absolutely necessary. Otherwise the majority of macroeconomic measures that are to be introduced
would be those that influence private behaviour, such as:  moral  suasion, economic regulation and
enforcement, economic incentives, and market measures.

7.2.1   Moral suasion

       Moral suasion relies on a local community's sense of social responsibility whereby they attach
the labels "bad" or "good" to resource management. The basis for moral suasion may be found in
sound traditional agricultural,  range, livestock, wildlife and woodland management practices based
on time-tested indigenous knowledge. The role of theGovernment in increasing the effectiveness of
moral suasion is that of providing appropriate expenditures on facilities and information. By educating
the population, the Government will also increase the effectiveness of moral suasion.

7.2.2  Economic regulation and enforcement

       This approach  involves the introduction of a number  of disincentives encompassing  direct
controls  on inputs, productive processes,  or on outputs. Government measures of regulation and
enforcement in a macro-economic context include: enforcing particular crop rotation cycles, periodic
exclusion of livestock in fragile rangeland areas, or  penalties  for  producing soil loss up and above
an acceptable minimum in a particular area. The "polluter pays" principle is central in guiding the
formulation of a range  of disincentives aimed at promoting environmental protection.

7.2.3  Economic incentives

       Economic incentives encompass a range of policy instruments distinguished by their reliance
not on moral pressure, nor on  the threat of  legal sanctions,  but on tangible economic rewards or
penalties accruing to the land user, fishmonger or  manufacturer directly and  automatically as
consequences of particular management decisions. These incentives may be in the form of cash or
in-kind.

7.2.3a In-kind incentives

       In-kind incentives may be in the form of inputs to  production processes. For example the
"free" distribution of seeds or planting materials of high yielding crop varieties falls into this category.
In-kind incentives may also be used to influence the final consumption values of the population. Such
incentives may include the provision of food, fuel, or improved access to health care as "rewards"
for participation in an environmental program. The "food for work" or "food for school" in Kotido and
Moroto districts of Uganda are ready examples. However, experience suggests that in providing these
consumption-related incentives, care must be taken to ensure that the population does not develop
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an  extreme case of dependency and total disregard  for own-initiative. Once the prospect of
dependency is removed, In-kind incentives are likely to be far more effective than fiscal measures in
Uganda where the population consists of largely rural subsistence dwellers, The Government can
avoid encouraging dependency by providing more of the input-rather than the consumption-related
In-kind incentives.

7.2.3b Financial Incentives

       Macroeconomic fiscal measures can also be used to encourage voluntary compliance in
environmental management.  These measures are largely in form of cash or credit incentives. It is
also important to note that the fiscal incentives can have significant Impact an government revenue
or expenditure.  For example, taxes, selected tariffs on particular types of farm inputs or machinery
and equipment, or user charges for water translate into increased government revenue, some of
which can be used in turn to effect public expenditures in environmental management and protection.
Other measures such as grants for special purposes or investments  in environmentally sound
technologies, subsidies to farmers in fragile ecosystems  (such as arid and semi-arid areas) to
purchase drought resistant crop varieties, and the Treasury foregoing revenue which it might otherwise
collect (taxation concessions) for good environmental practices all involve additional Government
Expenditure.

7.2.4  Market measures

       The overall goal of market measures is to establish conditions where Individuals face cost
and revenue incentives to change their land use patterns  and promote sound environmental
management, among others. One way of doing this is, for example, to create new markets (e.g. for
products of game ranching and ostrich farming as alternative income generating activities in dry land
areas, encourage tie establishment of prices for previously unpriced goods  (e.g.  fuelwood) or
services, alter the number of participants in a market;  change the ruling entry and exist conditions
in resource extraction; or alter the parameters of existing livestock markets to eliminate overgrazing
in pastoral areas.
 8      CONCLUSION

        In advocating for measures that encourage the promotion of voluntary compliance with
 respect to environmental auditing, outreach and incentive program, macroeconomic measures are
 favoured. However, in formulating macroeconomic measures through direct government expenditure
 or influencing private behaviours, Government has to keep in mind that for any of the  incentives to
 be effective, it must be dependable and have permanency of output; adaptable to economic growth;
 equitable both vertically and horizontally; flexible enough to ensure that local people retain some
 freedom in determining their response to a particular policy or program; and cost-effective to society.
 (Table 2 provides; a list of proposed outreach programs for sustainable environmental management.)
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Table 2.  Proposed Outreach Programs for Sustainable Environmental Management
Sector
    Proposed Outreach Programs
Environmental Information
    Document, evaluate, store, disseminate and utilize existing indigenous
    knowledge and practices with regard to environment and natural
    resource management
Biodiversity
    Foster puttie support for intended biodiversity actions and encourage
    private investment in tree planting and wildlife conservation by placing
    greater emphasis on increasing public awareness on biodiversity
    values.
Water Resources
    Increase the level of community awareness on the importance of water,
    particularly with regard to hygiene.
Climate
    Improve awareness among potential users and decision makers of
    climatic and atmospheric information including establishing
    demonstration projects in selected areas.
Population, Health and Human        1.
Settlements
        Increase access to family planning and maternal and child care
        programs, targeting both men and women, in order to balance
        the population growth rate with available resources and social
        services.               :
                                   2.   Facilitate women's participation in population and environment
                                        decision making, resource ownership and management, as well
                                        as improve their access to inputs including better access to credit.
Gender Integration
    1.    Facilitate participation of both men and women in formal and
         informal education, training, public awareness campaigns and
         decision making in environmental and natural resource
         management.
 Environmental Education
    1.   Train trainers in the use of environmental educational materials, for
        example, teacher trainers.

    2.   Develop environmental teaching materials initially for primary
        schools and eventually for all training institutions.
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THE COMPLIANCE INCENTIVE EXPERIENCE IN SANTA ROSA, CALIFORNIA

GARN, W. JOHN1, GRIMSRUD, MARTIN L2 and PAIGE, DEAN C.3

1 Environmental Management Consultant
2 Industrial Waste Inspector, City of Santa Rosa
3 Industrial Waste Superintendent, City of Santa Rosa

4300 Llano Road, Santa Rosa, California 95407 USA


       SUMMAFIY

       A general overview of the Compliance Incentive Program (CIP), implemented with the auto
repair industry In Santa Rosa, California is given. This program was introduced as  an alternative
approach to supplement traditional  enforcement practices. The center-piece of the  program is a
recognizable sticker that certifies environmental compliance to the public, while at the same time
recognizing businesses for their efforts in environmental protection. Attention is placed on the evolution
of the design and implementation of the program and the benefits derived for the regulators, the
business community, and the public.


1      PRE-EXISTING SITUATION WITH AUTO REPAIR SHOPS IN SANTA ROSA

1.1    Background information

       The City of Santa Rosa operates a 17 million gallon per day wastewater reclamation plant
using tertiary treatment for 100% reuse of the treated water. This plant, which services four cities and
two unincorporated areas,  faced a problem  meeting air quality  standards applicable  to
Publicly-Owned Treatment Works (POTW) related to excess levels of organic solvents in the inflow to
the system. The auto repair and service industry, with over 275 facilities and a customer base of over
200,000 vehicles, is the largest generator of hazardous waste in the 75 square mile POTW service
area. This same industry was found to be directly responsible for the detectable levels of organic
solvents  at the inflow of the Santa Rosa POTW.
       In the United States, POTWs regulate and enforce industrial discharges to their sewer system.
Certain specified categories of industrial dischargers into publicly owned  wastewater  (sewage)
treatment systems are required  to  "prefreat" their wastewater to prevent interference with POTW
operations and ensure  ft can meet its own permit limits for discharges. The origins of  the city's
enforcement program was the first annual pretreatment inspection required by US  EPA of the State
of California. The California North Coast Regional Water Quality Control Board (NCRWQCB) found
that the program was unmanned, under funded, lacking a coherent enforcement  policy, and lacking
a method of documentation of inspections and sampling activities.
       By the time of the June 1990 audit by a US EPA contractor and the NCRWQCB, the city had
 made substantial progress,  hiring an additional 3  inspectors bringing  the total to  4, a program
Superintendent and 2 clerk typists along with the existing skilled maintenance person. The city had
surveyed industrial discharges, with  drive  through reviews  of Industrial districts and follow up
 inspections on  individual businesses. Those requiring permits and a sampling program of their
discharges to the sanitary sewer were required to do so. The Audit, however, determined that the city
still  did not have an enforcement response plan nor a quality control plan. These  were developed
and submitted prior to the June 1991 audit which  found that the program had now met federal and
 state requirements,
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528                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       As a result of these efforts, in Santa Rosa, enforcement of discharge requirements into the
city's POTW is the responsibility of industrial waste inspectors, who monitor the discharges and are
empowered to issue citations, impose penalties, and write Cease & Desist orders to halt any illegal
discharges to ensure that inflow to the treatment plant does not violate the POTW's operating permits.
The illegal disposal of hazardous constituents to  the  sewer system by  the auto  repair facilities
exacerbated  the  existing  air quality problems and led to a  reconsideration of the traditional
enforcement approach being used by the industrial waste inspectors.

1.2    The Corby Avenue Auto Mall incident

       During the spring  of  1990,  an inflow and infiltration team of the POTW responsible for
monitoring storm water infiltration into the collection system, reported that they were unable to service
flow recording equipment located in a manhole on a trunk line due to the persistent presence of
noxious fumes.
       Team members reported  headaches, jumpiness and sleeplessness after short periods of
exposure. The Santa Rosa POTW determined that the  trunk line served an area known  as Corby
Avenue Auto Mall. This location contains fifteen new car dealers along approximately  one mile of
roadway.
       An in-depth investigation was begun to determine the sources of the pollutants involved. This
year-long process included:
       •  review of current Wastewater Discharge Permits for local businesses
       *  beginning the permitting process for businesses without permits
       »  starting an extensive sampling program
      . »  initiating comprehensive inspections to determine types and sources of discharges

1.3    Businesses struggling to comply

       For the auto shop owners involved in the Corby Avenue Auto Mall incident, requirements and
expectations of the industrial waste inspectors were unclear. Upon inspection, auto shop owners
would find themselves being  cited for various environmental violations with minimal information on
how to correct the situation supplied by the industrial waste inspectors. For example, auto shop
owners' attempts  to keep hazardous constituents out of the water by letting them evaporate resulted
in violations of air quality standards. This was a direct result of a lack of communication between
regulatory agencies.
       The auto  shop owners uniformly complained  that the numerous inspections by the various
environmental regulatory agencies resulted in confusing  information on achieving compliance. As the
example above  illustrates,  the satisfaction of the industrial  waste inspectors' demands for
environmental compliance led to costly fines from the air quality inspectors for environmental
violations.  This exclusively punitive  approach by all of the environmental regulatory  agencies in
Sonoma  County contributed to an increasing adversarial relationship between the business
community and the regulatory agencies.
       The auto  shop owners also cited the fact that they were losing business by trying to be in
compliance. Expensive equipment for cleaning up discharges to the sewer system only seemed to
transfer the problem to another media, such as the air.  They claimed that these increased costs
associated with complying had to be passed on
       to  customers which gave non-complying businesses a competitive advantage. This unfair
competitive edge was sharpened by the  fact that any  business forming a relationship with the
environmental regulatory agencies was more prone to be inspected, which took up valuable business
operation time and often led to conflicting information from the various agencies.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        529


2      NEW APPROACH: COMPLIANCE INCENTIVE PROGRAM

2.1    Shift in philosophy

       Subsequent to the Corby Avenue Auto Mall incident, the industrial waste inspectors of the
Santa Rosa POTW began adopting a new approach to environmental regulatory compliance. They
began to work directly with the auto shop owners to eliminate the hazardous constituent problems
at the source, instead of trying to clean up the shop's discharges at the end-of-the-pipe. Information
regarding the water quality of each auto shop was reported to the shop owners for quality control,
instead of withholding this information from them until a violation was issued. The inspectors realized
that the previous enforcement philosophy of inspections backed up by notice of violations, fines, and
Cease & Desist orders was not achieving compliance goals and was leading to increased adversarial
relationships with the business community. Their new approach can be summed up as "education,
before litigation."

2.2    Reviewing other programs

       After deciding to take a different  approach to  enforcing environmental regulations, the
industrial waste inspectors decided to look at innovative compliance programs that were already up
and running. To their dismay, they found that there was a lot of theoretical information but very little
in the way of existing programs in the implementation stage. The only active program they found was
the "Clean  Bay Business" program in Palo Alto, California. Although it was very new, it served as an
important model for the Santa Rosa POTW.

2.3    Aspects of the Compliance Incentive Program (CIP)

       With the  assistance of the environmental consulting firm Strategic Environmental of
Sebastopol, California, the Santa Rosa POTW began to design a comprehensive compliance program
to address  a number of the problems that had come to light from the Corby Avenue Auto Mall incident.
The CIP consists of four elements:
       • Technical Assistance—information is  provided  to businesses for  environmental
         compliance,  including training  and  materials  in  Best  Management Practices
         (BMP'Ei) and Pollution Prevention.
       • Regulatory  Streamlining—a  collaborative  effort   involving  all.  environmental
         regulating agencies creates a unified inspection checklist for the automotive repair
         and  service industry to streamline the inspection  process.  This  eliminates
         conflicting, confusing and redundant regulation, reduces the number of annual
         inspections, and enhances communication among agencies.
       • Recognition—a regional  sticker is presented  to those businesses that comply with
         all mandatory environmental regulations. This  provides businesses with the incentive
         to make the commitment and investment required for full regulatory compliance. The
         sticker  provides  businesses  with a marketing opportunity  while  moving  the
         competitive advantage away from non-complying businesses (Figure 1).
       • Consumer Awareness—a significant pollution prevention outreach effort is initiated
         to educate  consumers  about the program and the environmental  information
         contained  in the  recognition  stickers. Consumers realize that by supporting
         environmentally-responsible businesses,  they  can play a  meaningful role in
         pollution prevention.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Figure 1.  Regional sticker.

3     FROM DESIGN TO IMPLEMENTATION

3.1    Changing the regulatory system

       A key component in the implementation of the CIP is the coordination and communication
among the eight regulatory agencies responsible for environmental compliance in Sonoma County,
These eight agencies are: ESanta Rosa Industrial Waste Section, Santa Rosa Fire Services, Sonoma
County Fire Services, Sonoma County Environmental Health, North Coast Regional Water Quality
Control Board, Bay Area Air Quality Management District, Department of Toxic Substance Control,
and Cal-EPA, Adversarial relations exist, not only between the business community and the regulatory
agencies,  but also among the various regulatory agencies themselves. Creating ownership for the
CIP in each of the regulatory agencies is an on-going process that is critical to program success.
       The CIP provided the necessary  impetus to bring these different agencies together for the
common goal of environmental compliance for the auto repair facilities in the POTW service area. To
achieve this goal, a committee  was established with representatives from each  of the eight
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         531
environmental regulatory agencies that have jurisdiction  over air, water, hazardous waste, and
environmental health. This group, known as Sonoma Environmental Quality' Assurance Committee
(SEQAC), meets once  a month to discuss  pressing environmental compliance issues, share
information on non-complying businesses, and develop better channels of communication.
       From the beginning, SEQAC has used the CiP as  a testing ground for creating enhanced
interagency relations and efficient enforcement of environmental regulations. The centerpiece of this
effort has been a streamlined auto shop inspection checklist (Figure 2). When the eight agencies first
sat down and put their individual inspection sheets on the table, there were over 48 pages of items
that every auto shop was inspected on. After several meetings, those 48 pages have been reduced
to 8 pages. This eliminates redundancy in the regulatory inspection process while educating every
inspector on the primary areas of responsibility that each agency has.
       To ensure effective cross-agency communication regarding auto shop inspections,  SEQAC
created an agency referral form (Figure 3), This form is used by the lead inspection agency, in this
case the industrial Waste Section of the POTW, to notify ail involved parties of any environmental
compliance issues discovered during the inspection. The referral form must be signed by the business
representative and a copy is provided for corrective action. In addition, copies are  sent to other
regulatory agencies, such as air quality or environmental health, when the compliance issue detected
falls into their jurisdiction. In the event that the violation is of a serious nature, a field citation is issued
on the spot and appropriate corrective action begins immediately.

3.2    Identifying key players

        An important part of the CIP process was identifying the key players and inviting them to meet
and discuss the program before it was implemented with the auto repair industry. From a Total Quality
perspective, each group was viewed as a customer with explicit needs and  requirements that had
to be satisfied by the CIR
        The key players  invited to the meeting included: several small auto shop owners, four large
auto shop owners from Corby Avenue Auto Mall, the Chamber of Commerce Directors from the cities
served  by the POTW,  auto shop instructors from local educational institutions, and representatives
from local environmental groups.
        The meeting generated a consensus and the CIP was fully supported by every represented
group.  Many of the participants were very  encouraged by the new approach to environmental
regulatory enforcement adopted by the industrial waste inspectors. The business representatives, in
particular, were encouraged  by the CIP approach  and provided constructive criticism that pointed
out potential obstacles and helped prevent program delays in the future. As Keith Woods, Executive
Director for the Santa Rosa Chamber of Commerce exclaimed at the end of the meeting, "This is a
wonderful idea and the business community will welcome this approach with open arms."

3.3    Creating the Information Kit

        The next critical  task was providing educational materiai to all of the auto repair facilities in
the service area. This Information Kit contained a comprehensive information booklet which included:
        • Program  Description—a  complete  description of  the  Compliance  Incentive
          Program  along with the goals and  approach  of the program. The description
          outlined the work plan, program development,  program implementation, positive
          incentives, and shop visit protocol.
        • Best Management Practices (BMPs)—information from all environmental regulatory
          agencies, the California EPA and the Federal EPA  regarding  BMPs for the
          automotive  service and repair industry. This information is important to get  shops
          beyond compliance and into serious pollution prevention practices.
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  THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       PERMIT NO.
                     DATE
  NAME OF SERVICE:.



  ADDRESS:	
  CONTACT PERSON:
                  PHONE NUMBER:
  BODY SHOP
  GENERAL REPAIR.




  MACHINE SHOP
PAINT SHOP	 PARTS	




	 TRANSMISSION REPAIR
      ELECTRICAL
         DEALERSHIP
   CAR WASH
RADIATOR REPAIR
  RADIATOR SERVICING-
           OTHER
  EPA WASTE GENERATORS NUMBER
  CURRENT MATERIAL  SAFETY DATA SHEETS (MSDS) ON FILE FOR ALL



  HAZARDOUS SUBSTANCES  ON SITE?   YES 	   NO 	



  1. BUSINESS PLAN: YES	  NO	 ;  IF YES, ATTACH COPY - 2 & 3 BELOW



  ARE NOT APPLICABLE. IF NO, SEND SOLVENT MANAGEMENT PLAN TO COMPLETE



  2. SOLVENT MANAGEMENT PLAN: YES	   NO	 ;IF YES,  PLEASE ATTACH



  3. DO YOU HAVE AN EMERGENCY SPILLS CONTINGENCY PLAN? YES	  NO



  IF YES, ATTACH A COPY. IF NO,  EXPLAIN HOW FLOOR SPILLS ARS HANDLED:








  WHAT KIND OF ABSORBANTS ARE USED?	
  MANUAL
     AUTOMATIC
  IS ANY WATER  IN THE WASHING PROCESS RECYCLED?




  PERCENTAGE RECYCLED	
                               YES
                      NO
  DO YOU HAVE GREASE AND SAND INTERCEPTOR/S, SUMP/S OR TRAP/S?



  YES 	 NO 	   HOW MANY?	 SIZE/GALLONS	
Figure 2.  Auto shop Inspection checklist
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                    533
    NUMBER OP COMPARTMENTS?	SAMPLING BOX OR MAN HOLE? YES   HO
    HOW OFTEN ARE INTERCEPTOR/S,  SUHP/S OR TRAP/S CLEANED?,
    WHO DOES THE CLEANING? NAME
    ADDRESS	PHONE NO..



    CLEANER//HAULER EPA NO.	
    ARE RECEIPT/MANIFEST  IN ORDER FOR WASTE HAULED? YES	 NO_



    CLEANING PRODUCTS USED IN VEHICLE WASH?	
    HOW ARE PRODUCTS STORED?_
    ENGINE CLEANING OR UNDER CARRIAGE  CLEANING DONE? YES	  NO_



    IF YES:  STEAM CLEANER        PRESSURE WASHER	     OTHER_
    YES	 NO	 CHEMICALS USED IN HOT  TANK:
    ARE PARTS REMOVED FROH HOT TANK RINSSD WITH MATER? YES     NO



    WHERE DOES THE WATER G0?_	^___^__
    HOW OFTEN  IS HOT TANK CLEANED?,




    WHO DOES THE CLEANING? NAME
    ADDRESS	PHONE NO.,



    CLEANER/HAULER'S EPA NO.	
    ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER? YES 	  NO_



    HOW ARE HOT TANK CHEMICALS  STORED?	;	



    IS HOT TANK DOUBLE CONTAINED?	
    ARE THERE ANY FLOOR DRAINS IN THE AREA AND WHERE?
 Figure 2. Auto shop inspection checklist (continued).
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534                   THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
  YES 	   NO	CHEMICALS USED IN MACHINE:
  ARE PARTS FROM THE MACHINE RINSED WITH WATER?    YES 	  N0_



  WHERE DOES THE WATER GO?	
  HOW OFTEN IS THE MACHINE CLEANED?.



  WHO DOES THE GLEAMING? NAME	
  ADDRESS	:	PHONE NO..



  CLEANER/HAULER EPA NUMBER?	
  ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER?  YES	 NO_




  COMMENTS	,__»________________>___________^^



  IS SPRAY WASH MACHINE DOUBLE CONTAINED?	
  HOW ARE SPRAY MACHINE CHEMICALS STORED?
  ARE THERE ANY FLOOR DRAINS IN THE AREA AND WHERE?
  YES 	    NO   	      IF YES, HOW MANY?



  WHO SERVICES THE CLEANERS? NAME	
  ADDRESS	PHONE NO..




  SERVICE'S  EPA NO.	
  IF NO SERVICE,  HOW IS WASTE SOLVENT HANDLED?,
  ARE RECEIPTS/MANIFEST FOR WASTE HAULED  IN ORDER? YES 	  N0_




  COMMENTS  (DATES/VOLUMES PICKED UP) 	
  HOW OFTEN ARE PARTS CLEANERS SERVICED?,



                                   3
Figure 2.  Auto shop inspection checklist (continued).
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                    535
    ARE PARTS CLEANERS DOUBLE CONTAINED?
    ARE THERE ANY FLOOR DRAINS IN THE AREA?_
                                 Hni
    WASTE AMTI-FRBBZE - DO YOU HAVE SERVICE?    YES 	   NO_
    IF YES,  NAME 	
    ADDRESS	PHONE NO..
    SERVICES EPA NO.	
    HOW OFTEN' DOES SERVICE REMOVE WASTE ANTI-FREEZE?
     IF NO SE8.VICE, HOW IS WASTE ANTI-FREEZE HANDLED?.
    ARE RECEIPTS/MANIFEST FOR WASTE HAULED  IN ORDER?  YES 	 N0_
    COMMENTS (DATES/VOLUMES PICKED UP)	
    ANTI-FREE1ZE STORED IN: PLASTIC	  STEEL	  OTHER
     IS ANTI-FREEZE CONTAINER DOUBLE CONTAINED?  YES 	  NO
     ARE THERE: ANY FLOOR DRAINS IN THE AREA?	
    ARE RADIATORS FLUSHED ON SITE?  YES 	  NO_
    IF YES,  WHERE DOES THE FLUSH WATER GO?	
    WASTE Oil. - DO YOU HAVE A WASTE SERVICE?  YES 	   NO
    IF YES, NAME	
    ADDRESS	PHONE NO..
    HOW OFTEN DOES SERVICE REMOVE WASTE OIL?	
    SERVICES EPA NO.	
     IF NO,  HOW IS WASTE OIL HANDLED?.
     ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER? YES 	  NO_
     COMMENTS (DATES/VOLUMES PICKED UP) 	
 Figure 2.  Auto shop inspection checklist (continued).
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536                    THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
   IS WASTE  OIL CONTAINER DOUBLE CONTAINED?
   ARE THERE ANY FLOOR DRAINS IN THE AREA AND WHERE?
   TTSBP OIL FILTERS - ARE FILTERS: DRAINED	  CRUSHED,



   DO YOU HAVE A RECYCLING SERVICE PICK UP FILTERS? YES     NO



   IF YES,  NAME	
   ADDRESS	.	PHONE NO..




   HOW OFTEN DOES SERVICE REMOVE USED OIL FILTERS?	




   SERVICES EPA NO. 	
   IF NO,  HOW ARE THE FILTERS DISPOSED  OF?_
   HOW ARE USED OIL FILTERS STORED?
   ARE THERE ANY FLOOR DRAINS IN THE AREA?
   ARE THERE ANY FLOOR DRAINS IN THE AREA?
   ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER? YES 	  NO_




   COMMENTS	
   BRAKE CLEANING SOI.VEHT - DO TTOtT HAVE SERVICE? "YES;       WO_




   IF YES,  NAME	




   ADDRESS	PHONE NO.	




   HOW  OFTEN DOES SERVICE REMOVE SOLVENT?	




   SERVICES EPA NO.	




   IF NO,  HOW IS WASTE HANDLED?	
   ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER? YES	 NO_




   COMMENTS	




   HOW IS CLEANING SOLVENT STORED?	
   CARBURETOR CIiBANXNQ SOLVBOT -  DO YOU HAVE A SERVICE? YES	NO_




   IF  YES,  NAME	




   ADDRESS	PHONE- NO.	
Figure 2. Auto shop inspection checklist (continued).
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                     5S7
    HOW OFTEN DOES SERVICE REMOVE SOLVENT?.



    SERVICES EPA HO.	
    IF NO,  HOW IS WASTE CLEANER SOLVENT HANDLED?,
    ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER? YES_



    COMMENTS  	
    HOW IS CLEANING SOLVENT STORED?
    ARE THERE ANY FLOOR DRAINS IN THE AREA?
    DOES A BATTERY SERVICE REMOVE YOUR USED BATTERIES?  YES	  N0_
    IF YES, NAME	PHONE NO,.



    ADDRESS  	
    HOW OFTEN ARE BATTERIES REMOVED?.



    SERVICES EPA NO, 	
    IF NO, HOW ARE USED BATTERIES  HANDLED?.



    HOW ARE NSW AND USED BATTERIES STORED?
    ARE RECEIPT/MANIFEST IN ORDER FOR WASTE HAULED?  YES	 N0_
    WHO IS YOOR RAG CLEANING  SERVICE?



    NAME	PHONE NO..



    ADDRESS  	
    ARE USED BAGS STORED IN A FIRS PROOF CONTAINER?  YES	 NO_








    IF YES, EXPLAIN	,	












    ARE FACILITY TECHNICIANS CERTIFIED IN FREON USE? YES	   NO
 Figure 2. Auto shop Inspection checklist (continued).
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538                     THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
    HOW IS FREON HANDLED AND WHAT EQUIPMENT IS USED?
    PAINTING   YES	NO 	    BAAQMD PERMIT f_




    HOW ARE SPRAY GUMS  CLEANED? 	
    WHAT TYPE OF SPRAY GUNS ARE USED?
    DO YOU HAVE A SERVICE FOR THE REMOVAL OF WASTE PAINTS,  THINN1ES AND



    SOLVENTS?   YES	NO 	



    IF YES, NAME                 	PHONE NO.	



    ADDRESS 	



    HOW OFTEN DOES SERVICE  REMOVE WASTE PAINTS, THINKERS  AND/OR



    SOLVENTS ?	
    SERVICES EPA NO.
    IF NO, HOW ARE WASTE PAINTS,  THINNERS, AND SOLVENTS HANDLED?	








    ARE RECEIPTS/MANIFEST FOR WASTE HAULED IN ORDER? YES	  NO_



    COMMENTS  (DATES/VOLUMES PICKED UP) 	
    HOW ARE WASTE PAINTS, THINNERS,  SOLVENTS STORED?
    ARE THERE ANY FLOOR DRAINS IN THE AREA?
    FLOOR CLEANED WITH:   MOP	    FLOOR MACHINE..




    HOW IS FLOOR  CLEANING WASTE WATER DISPOSED OF?
 Figure 2.  Auto shop inspection checklist (continued).
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                     539
    DESCRIBE DRAIN LOCATION/S AND DESTINATION
    ARE FLOOH DRAINS CONNECTED TO A SUMP OR  GREASE INTERCEPTOR?

    YES	NO 	
                          ,  .          ,              ^^s 	   NQ
    5lRSSi«MB&* jSJESA'a ,*iS *fci-*-c * M«SgMm»(-B:ttfc!a*a»	
          Cal-EPA                              (916)  324-1781
          US EPA                               (415)  495-8895
          BAAQMD                               (415)  771-6000
          Sonoma County  Environmental Health (707)  525-6500
          Santa Rosa Fire  Department          (707)  543-3500
          Sonoma County  Fire Service          (707)  527-1152
          North Coast Regional Water Quality (576)  576-2220
          Dept. of Toxic Substances Control  (916)  546-7697

    LIMIT FOR SMALL QUANTITY GENERATOR  -  TOTAL HAZARDOUS  WASTE
                           1250 GALLONS OR  5 TONS.

    AOTOCHEC.S08
Figure 2.  Auto shop inspection checklist (continued).
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                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                       SANTA ROSA SUBREGIONAL WATER RECLAMATION SYSTEM
                                     INDUSTRIAL WASTE SECTION
                         4300 LLANO ROAD, SANTA ROSA, CA 95407 - (707) 543-3369
                                          OFFICIAL NOTICE
                   OF INSPECTION AND REQUIRED ACTION(S) TO BE TAKEN BY INDUSTRY
  FACILITY NAME:
  ADDRESS:	
  MAILING ADDRESS;
  CONTACT PERSON:'
  COMPANY PRESIDENT/OWNER:
                         SAMPLES TAKEN
_ crnr PERMIT NO.
_ AP NO.	~
_ EPA NO.	
~ PHONE NO.	
"PHOTOS TAKEN
  An Inspection of your facility conducted by                                         on    	
   at	AM/PM  revealed the following possible violations^) of State and local environmental regulations -where noted.
  Since some of the possible vMalionfc) noted below may be outside the direct regulatory responsblUty of the Santa Rosa
  Subregional Industrial Waste Section, we ere sending a copy of this notice to die appropriate agency indicated below. This
  form serves as a courtesy notice tti yon that corrective action may be required. You should contact die agency Indicated below
  to confirm any corrective action requirement For violations of City regulations the Subregional Industrial Waste Section vriB
  follow this notice with a certification statement specifying compliance time frames.
  *•.

  b.
  c..

  A.

  e..
OPERATING WITHOUT AN EPA #
       (Title 22 California Code of Regulations 66262,12)
ON SITE WASTE (TREATMENT) (DISPOSAL) WITHOUT PERMIT
       (Title 22 California Code of Regulations 66270.1)
OPERATING WITHOUT A WASTEWATER PERMIT
       (City Code Title 1.5-12.030)
NO BAY AREA AIR QUALITY MANAGEMENT DISTRICT PERMIT
ACCUMULATION DATE ON WASTE CONTAINER NOT MARKED/LEGIBLE
       (Title 22 California Code of Regulation 6626Z34(f))
DESCRIPTION OF CONTENT/HAZARDOUS PROPERTY OF WASTE/GENERATOR NAME
AND ADDRESS NOT MARKED ON CONTAINER
       (Title 22 California Code of Regulations 66262.34(0)
HAZARDOUS WASTE CONTAINER NOT IN GOOD CONDITION
       (Title 22 California Code of Regulations 66265.171)
WASTE INCOMPATIBLE WITH CONTAINERS
       (Title 22 California Code of Regulations 66255.172)
WASTE CONTAINER/S NOT CLOSED/SFALED DURING STORAGE
       (Title 22 California Code of Regulations 66265.173)
WASTE CONTAINER/S NOT STORED IN DOUBLE CONTAINMENT:
WASTE OIL	, WAS1E ANTI-FREEZE	. SOLVENT	, OTHER	
               (Title 22 California Code of Regulations 66264.175) and (City Code Title 15-11050)
  a.	  PLAN NOT SUBMITTED/NOT MAINTAINED/NOT AMENDED/NOT ON SITE
               Oltle 22 ealifotnia Code of Regulations 66265,53(0), 53, S3, & 55) and (City Code Tifle 15-12.050)
         Whito - Customer Copy
                            C'mory . Industrial Wistt
                                                     Pint - Agency Copy
                                                                OoMaiioJ > Agency Copy
 Figure 3.  Agency referral form.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
541
   a,	 WASTE DISPOSAL RECORD (MANIFEST) (RECEIPTS) NOT RETAINED ON SITE TOR 3 YEARS
               (Title 22 California Code of Regulates 66262.40)
   b.	 BJCOMPI.ETE MSDS INVENTORY
               (City Code Tide 15-48.080
   e.	WASTE ANALYSIS/TEST RECORDS NOT RETAINED ON SITE FOR 3 YEARS/SELF MONITORING RETORTS
         (INCOMPLETE) (NOT ON TIME) (NOT DONE)
               (Title 22 California Code of Regulations 66262.11) and (City Code Tide 15-08.080)
         TRAINING PROGRAM NOT PROVIDED/TRAINING RECORDS NOT KEPT ON SITE
               (Title 22 California Code of Regulations 66265.16) and 16 (d))
         IMPROPER (STORAGE) (HANDLING) OF OIL FILTERS
               (Qty Code Title 15-12.050) and (Title 22 California Code of Regulations 66266.130)
         IMPROPER STORAGE OF USED BATTERIES
               (City Code Tide 15-12.050) and (Title 22 California Code of Regulations 66266.80)
         NO SERVICE CONTRACTED FOR WASTE OIL _, WASTE SOLVENT _, WASTE ANTI-FREEZE _, PAINT
         THINNER _, PAINTS _, SHOP RAGS _, INTERCEPTOR WASTE __, USED BATTERIES __, FILTERS _,
         OTHER  	
               -(City Code Title 15.12.050)-
   d.	 INTERCEPTOR(SyTRAP(S) NOT MAINTAINED
               (City Code Tille 15-08.070)
   e.	 VEHICLES BEING WASHED WITH SOAP (WASTEWATER GOING TO STORM DRAW)
               (California Fish ami Gantt Code 5650)
   f.	 ENGINES. UNDERCARRIAGES BEING WASHED WITHOUT PROPER TREATMENT
               (City Code rifle 15-08.060,15-08,070)
   g.	 WASH RACK EXPOSED TO RAINFALL, STORM WATER RUNOFF AND DRAINS TO SEWER
               (City Code Title 15-24.020(2))
   h.	 MADE SIGNIFICANT CHANGES IN OPERATION/FLOW WITHOUT NOTIFYING SRIWS
               (City Code rule 15-12.060(2))
   L	 HVLP PAINT SPRAY GUNS NOT USED
               (Hay Area Air Quality Management District)
   j.	 SELF CONTAINED PAINT GUN CLEANER NOT IN USE
               (Bay Area Ate Quality Management District)
   Santa Roam Industrial Waste Section
                                                                       Date
   Facility Representative Signature
                (Your signature on this farm acknowledges that you have bees informed that other
                State and local violations may exist at your facility, and is not an admission of guilt)
         WUu- Customer Copy
                            C»urv • Indurolil Wana    Knk- A»«iyCopy
                                                                 Ooltouod • AJOTCY Copy
 Figure 3.   Agency referral form (continued).
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542                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       » Recognition Sticker—an  artist's rendering of the  proposed  "Sonoma Green
         Business" sticker that would be presented to complying businesses.
       • Vehicle  Service Facility'  Checklist—a  self-inspection  checklist  based  on  all
         environmental regulatory agencies requirements. This allowed shops to self audit in
         order to determine where the major problem areas were in their facility prior to
         inspection.
       « Vendor List—a list of local vendors who offered services and equipment that could
         assist auto shops fn their quest for compliance.

       The Information Kit also contained an informational pamphlet on the Industrial Waste Section
of tiie City of Santa  Rosa, a small magnetic green car with an information number for the "Sonoma
Green Business" program, and a pen made of recycled material with the same information number.
In addition to the Information Kit, a clip board made of recycled  polystyrene was produced  that
included the six most asked questions regarding hazardous waste in the auto repair industry as well
as the sewer use ordinance discharge limits for conventional and hazardous pollutants. The clip board
also contained the phone numbers  of all environmental regulatory agencies. This clip board serves
as an environmental education tool  and is  provided to every employee and owner of the auto repair
shops (Figure 4),

3.4    Kick-off meeting

 	 -A CIP kick-off meeting was  held in March of 1993 to introduce the CIP concept to all auto
repair and  service shop owners in  the Santa Rosa POTW service area.  Of the 275 invitations that
were sent out to owners, 165 owners showed up for this meeting. The Information Kits were distributed
to all attendees before the brief presentations by the industrial waste inspectors and other regulatory
representatives. The meeting was designed to cover several important areas:
       * Establishing Conditions of Inspections—attendees were informed that auto repair
         facilities were  going to be the  focus of  inspections by  the City of Santa  Rosa
         Industrial Waste Section. Each facility would have an initial inspection to determine
         compliance. If they were  found in  compliance,  they would  be eligible  for a
         recognition sticker. If they were out of compliance, they would be allowed follow-up
         inspections to determine  eligibility. This open-ended approach allowed year-round
         eligibility. This assured the facility owners that the CIP was  not being used as a new
         tactic to uncover hidden violations,
       » Bridging Adversarial Relations—this open meeting began bridging  the existing
         adversarial relationships between the regulators and the business community. The
         fact that the POTW was recognizing auto shop owners efforts at compliance was a
         major step in  the direction of establishing a new foundation  from which to work
         together, With  the new CIP approach, auto shop owners began to rebuild a sense
         of trust with the regulators.
       «  Enhancing the Role of the inspector—the meeting presentations by the industrial
         waste inspectors began  to demonstrate  that the inspectors sincerely wanted to
         enhance  their  roles from  enforcers to  educators.  By the nature of  their job,
         inspectors have a wealth of useful  information to assist businesses in  attaining
         compliance, while, in many cases, actually helping the shops save money,
       *  Balancing Unfair Competitive Advantage—many of the attendees expressed their
         satisfaction with the CIP  from the business stand point  of achieving a sense of
         fairness in environmental compliance enforcement. Many shops had spent extra
         money on special  equipment to be in  compliance only to  discover that their
         competition was undercutting prices by using illegal waste disposal practices.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
                                         S43
  £}; AS AN AUTO REPAIR FACILITY, DO I
     GENERATE HAZARDOUS WASTE?

  A: Most Auto Repair Shops generate some type of
  hazardous waste.
  Some common waste types Include: waste oil, lubricants
  and transmission fluids-spent solvents-spent caustic
  parts washing solutions-parts cleaning tank sludge-
  interceptor/sump sludge-used antifreeze-used lead add
  batteries.
  Q: DO I NEED A HAZARDOUS WASTE
     GENERATOR LD. NUMBER?

  A: YES, since the f >ote nti al to generate hazardous waste
  exists, It Is strongly advisable to  contact Cal-EPA,
  Department of Toxic Substances Control (DTSC) at 916-
  324-1781 to request an application for a Generator I.O.
  Number to protect: your liability.
  Q: WHO CAN TRANSPORT MY HAZARDOUS
     WASTE AND WHERE DOES tT GO?
Q; WHY CAN'T LOCAL SEPTIC HAULERS PUMP
   OUTMYSUUPANTERCEPTORS?
A: Waste from a sump or Interceptor in the Automotive
Industry may contain hazardous waste such as oils,
solvents, and heavy metals. Septic tank haulers are not
usually licensed by the State to haul hazardous waste.
Sump waste must be analyzed to determine If It Is
hazardous.
O; WHY CANT OIL FILTERS BE DISPOSED TO
   THE LANDFILL?

A: Asof April, 1992, used oil fitters from commercial repair
shops are considered hazardous waste. The State of
California and the Federal Government currently ex-
empt usad oil filters from the hazardous waste regulatory
loop if they are drained fora minimum of 24 hours and
transported for the purpose of metal reclamation,


Q; HOW LONG MAY I STORE MY HAZARDOUS
   WASTE?
A: You may store hazardous waste (lass than 5,000
  A: Only haulers licensed by the State of California to
  transport hazardous waste can be used when transport-
  ing hazardous waste. It is also the generators responsi-
  bility to ensure the final destination of the hazardous
  waste is licensed facility. Remember a licensed hauler
  wltl not take your hazardous waste without checking
  your Generator'!) I.D. f .


        City of Saifa Rosa Sewer Use Ordinance
gallons or 45,000 pounds) tor up to 90 days. If you
generate less than 220 pounds or 27 gallons of hazard-
ous waste per month, you begin counting the 80 days of
the storage after you have collected a total of 27 gallons
or 220 pounds of hazardous waste. Hazardous waste
storage requires a permit Certain generators may store
hazardous waste on site for up to 1 year. For more
Information call The Sonoma County Environmental
Health Service at (707) 525-6500.

            Agency Phone Numbers
   Constituent	...	Discharge Umlt
   Non-Polar Oil & Grease....		100.00 mg/L
   Arsenic (As)	0.47 mg/L
   Chromium (Cr)	1.71 mg/L
   Copper (Cu)	„	0.20 mg/L
   Lead (Pb)	.		0.30 mg/L
   Nickel (Ni)	........	.	1,61 mg/L
   Zinc (Zn)		.—1.63 mg/L
   Volatile Organic Compounds (VOC)	2.13 mg/L
   Total Suspended Solids (TSS)	 16,800 mg/L
Water Quality Control ftsard	(707) 576-2220
Santa Rosa Industrial Waste	(707) 524-5294
CAL-EPA- Toxic Substances Dtv...... (916) 324-1781
U.S. EPA	(415) 495-8895
Bay Area Air Quality Mgmt DisL	(415) 771 -6000
Sonoma Co. Environmental Health ..,(707) 525-6500
Santa Rosa Fire Dept	(707) 834-5311
Sonoma County Rre Services	(707) 527-1152
        THIS CLIPBOARD IS MADE OF RECYCLED POLYSTYRENE
 Figure 4.  Clipboard.
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 544                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       »  Marketing  Benefits—the meeting  presentations  highlighted the fact that shops
          receiving the recognition sticker would be supported by the city's efforts to get this
          information to the public. Intensive marketing plans had been made to publicize
          the sticker and inform the consumer on the importance of this information when
          deciding where to have their car serviced.

       An indication of shop owners' support for the OP concept occurred when an inspector passed
 around a  sign-up sheet for shops wanting to volunteer for an inspection. Over 25% of the attendees
 signed up on the spot. In the history of the POTW, no business had ever requested an Inspection.

 3,5    Inspecting the shops

       Prior to the Corby Avenue Auto  Mall incident, auto  repair shops  were issued wastewater
 discharge permits but were rarely  inspected for environmental compliance. Of the fifteen auto
 dealerships along  Corby Avenue inspected after the incident,  none were  found to  be  in full
 compliance. This first detailed look at the  automotive repair industry alerted  the industrial  waste
 inspectors to the severity of the hazardous waste discharges originating from these facilities.
       In April of 1993, armed with the  list of willing participants from the voluntary inspection sign-up
 sheet, the inspectors began visiting shops.  As of this writing, over 100 inspections have been
       conducted and 73 shops have been found to be in full compliance. This is an extraordinary
~nQTnbwwtrerTwreix^siaeTs~s~z^                                        CfR^OTthWTemaining"
 27 shops, most will achieve compliance within 60 days of initial inspection. A small percentage of
 the shops have major issues, such as  ground water contamination from leaking underground  tanks.
 While these types of problems take  more time to resolve,  all shops  have expressed their desire to
 qualify as a "Sonoma Green Business."
       To demonstrate that the industrial waste inspectors  were serious about  practicing education
 while performing inspections, the inspectors brought extra clip  boards with regulatory information
 printed on them for every shop employee and discussed best available technology as well as source
 reduction, recycling and pollution prevention with the owners. This new approach disseminated critical
 environmental information and helped  alleviate the adversarial friction that usually accompanied any
 inspection.  Depending on the size of the shops, each assessment took between 0.5 hours to 3  hours.
       The recognition sticker symbolizes total compliance with environmental regulations and this
 means that a sticker cannot be issued if there are pending issues with  any of the other  seven
 regulatory agencies. It must be pointed out that  compliance is still the bottom-line. The recognition
 sticker and the status as a "Sonoma Green  Business" is a bonus to  the shops. If a business  owner
 refuses to be a participant in CIR this does not excuse them from meeting environmental regulatory
 requirements. The inspections will still be conducted and enforcement implemented when necessary.
 The CIP is merely a tool or philosophy for enhancing the relationship between ttie regulatory agencies
 and the regulated community with the  added power of the consumer to help achieve compliance.
 4      PUBLIC PARTICIPATION IN POLLUTION PREVENTION

 4.1     Public environmental awareness

        The population of Sonoma County has a fairly high level of environmental literacy. Consumers
 use environmental information in many of their shopping decisions when this information is available.
 The City of Santa Rosa has a successful curbside recycling program and a very high level of citizen
 participation in household hazardous waste days. This citizen base created an optimum condition
 for the infroduction of the CIR
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         545
4.2    Publics' role in pollution prevention

       In the traditional environmental compliance cycle, the regulatory community alone is pitted
against the business sector in a constant battle to detect violations, impose fines and face possible
litigation. These Iwo groups continually overlook the primary customers of environmental quality: the
public. The OP makes use of this fact by increasing the tools available to achieve compliance through
the distribution of environmental compliance information to the community.
       The public wants to support businesses that practice environmental responsibility. People are
the market, and the power to encourage compliance is in their wallets.  The Santa Rosa CIP uses P4,
Public Participation  in Pollution  Prevention, to describe this  powerful leverage to achieving
environmental  compliance.

4.3    Sticker value

       The key is getting environmental compliance information to the public so that they can use
it in their purchasing decisions. That is one of the primary uses of the  CIP sticker that is now known
by the name "Sonoma Green Business"., This recognition sticker, presented to the auto shops that
are in complete environmental compliance in the Santa Rosa POTW service area, will  allow the
consumer  to play an active  role  in pollution prevention by using their economic muscle in the
patronizing of  'green' businesses.
       Results are not available on the actual impact of the sticker due to the newness of the program,
but success of the CiP will be directly tied to the extent that the consumers of this area use the
environmental  information contained on  the sticker in  determining where  they take their cars  for
servicing.  The greater the use of this  information in making purchasing  decisions, the greater the
market force that will be created to get non-complying  auto repair facilities into compliance, or out
of business.

4.4    Public  education

       An essential element for the CIP concept  is a very well-thought-out marketing strategy for the
sticker. Educating the public on this new source of environmental information is critical to the success
of the entire program and it's effectiveness for other  industrial sectors such as  printing and dry
cleaning.
       A careful strategy was developed to get information about  the sticker out to the residents of
the entire  POTW service area. This multi-media campaign included:
       •  Press conferences and announcements.
       •  Radio ads.
       »  TV public service announcements,
       *  Newspaper articles,
       »  Public transportation ads.
       •  Announcements in city billings to POTW residents.
       •  Public meetings,
       •  School presentations.
 5     CIP BENEFITS

 5.1    Increased compliance

       While enforcement remains the main tool for inspectors to insure business compliance to
 environmental regulations, the CIP opens the door for the use of alternative programs that support
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546                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
current enforcement efforts. Through the use of incentive programs such as CIP, inspectors can add
the role of educator to their enforcer identity  and begin  to make greater strides toward achieving
environmental compliance goals.
       The CIP supports enforcement activities in a variety of ways. Among some of the most
important are:
       * Increased inspector utilization. By  training inspectors  in multi-media  skills,  the
         limited  number  of inspectors can  be  more broadly utilized  to  focus  on
         non-complying companies.
       • Shifting compliance pressure. Instead of inspectors alone always being the ones to
         apply pressure on companies to comply, the CIP provides a mechanism by which
         other companies within the same industrial category apply  compliance pressure
         and influence any non-participating businesses to seek CIP eligibility.
       • Maximizing limited agency budgets, The CIP streamlines the regulatory  inspection
         process  and increases the efficiency of agency allocations. The cooperative
         relationship established between various regulatory agencies makes full utilization
         of limited agency resources.
       « Increased compliance awareness. The CIP helps create an atmosphere of trust
         between the agencies  and  the business  community. This provides  a solid
         foundation  to deliver  educational  material  to companies for  environmental
         corrfplianceT             "         "            ~"   """

       The Santa Rosa POTW has already noticed a dramatic increase in auto repair and service
shop compliance since the CIP began. Before the introduction of the CiP, inspections found no auto
shops in full compliance with environmental regulations. Now,  3% of the total shops inspected are in
compliance on the first inspection and 70% are in compliance after follow-up inspections. The
remaining 27% of the inspected shops are on site  specific  compliance schedules with the latest
compliance date being June 30, 1994.

5.2    Improved relations between business and regulators

       The Santa Rosa POTW had never had a request by  any business in  its  service area for a
voluntary environmental inspection to determine if that business was violating any environmental
regulations. Since the introduction of the CIP, over 100 of the 275 auto repair and  service facilities in
the Santa Rosa POTW service area have requested voluntary inspections.
       These voluntary requests have helped  reduce the adversarial relations between the business
community and the regulators. Auto shop owners and employees are now using the knowledge and
expertise available from the public agencies to assist them in solving their environmental challenges.
The introduction of an educational component during  routine auto shop inspections  has  helped
provide the auto shop owners  with  necessary information to not only  get their facilities into
environmental  compliance, but to also move beyond compliance to the goal of zero discharge.
       This improved atmosphere of cooperation generated  by the CIP has expanded  beyond the
boundaries of  the auto repair industry. Several requests from business owners from other industrial
sectors have  come  into the industrial waste inspectors' offices.  Construction  contractors are
requesting the recognition sticker for their fleet yards; print shop owners want to know when they can
be inspected;  and several radiology labs have requested  participation in the program.

5.3    Improved interagency relations & inspector capacity

       The core  concept  of the CIP  is total compliance with all environmental regulations. This
necessitates clear communication and effective cooperation with every agency that has responsibility
for environmental regulatory enforcement. In the case of Sonoma County, that means working with
eight separate agencies that have a history of conflict and their own adversarial relationships.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         547


       Members 1rom the other agencies are now accompanying the industrial waste inspectors on
auto repair shop inspections so that every agency will have at least one inspector that can perform
a comprehensive multi-media inspection on an auto repair facility. This approach has proven so
valuable and effective that  the county has recently budgeted $90,000 for multi-media inspection
training using a county-wide CIP for all auto repair shops,
       An example of the effectiveness of tie CIP to improve interagency relations is SEQAC's recent
publication of the Compliance Guide for all Sonoma County businesses. This guide provides a matrix
for various businesses affected by environmental laws to help them easily identify which agency has
direct responsibility for different environmental issues.  The Compliance Guide also  contains
comprehensive information  on hazardous materials control, hazardous waste management, other
toxic laws & programs, and acronyms and abbreviations.

5.4     Increased competitive advantage for businesses

        From the  immediate response of the kick-off meeting attendees and the comments of the
auto repair shop owners who have had their facilities assessed, there is wide-spread consensus that
the "Sonoma Gre«n Business" sticker will provide a distinct marketing advantage over the shops that
are out of compliOTce and ineligible for a recognition sticker.
        The shop owners are also placing a high value on the sticker because of the information that
it will provide to the other regulators in the county. By having a sticker in their window they are assured
that they will  nest  suffer from repetitive,  redundant, and  interruptive inspections by various
environmental agencies.
        The first presentation ceremony for the sticker is scheduled for March  2, 1994, but already
the POTW has received several requests from shop owners who have qualified, to distribute the
sticker early so that they can begin using it in their marketing campaigns. Several of the larger shops
in the area have recorded TV and radio spots for immediate broadcast the day after the presentation
of the stickers.

5.5     Increased public participation

        Although it is too early to tell if the P4, Public Participation in Pollution Prevention has increased,
feedback from initial marketing efforts suggest that the "Sonoma Green Business" sticker will  soon
become a primary source of environmental information to the citizens of Sonoma County, Questions
such as, * Is  this information available  on all businesses?", and "Why has it  taken so long to do
this?", are now bsginning to come into the POTW.
        The Sonoma County Board of Supervisors is currently considering implementing an expanded
CIP concept to include public  facilities such as wastewater treatment plants and  landfills.
Environmental information would be regularly supplied to the county's citizens through TM radio, and
press announcements.

5.6     Requests from other agencies

        Probably one of the best indicators of the success  of the CIP is in the form of requests from
other regulatory agencies for the model of doing this in their communities. Since the March  1993
kick-off meeting, the Santa  Rosa POTW has received over  35 requests from local,  state, and federal
environmental regulatory agencies for information on the CIR
        The California EPA has  requested presentations on CIP to  augment its own  Targeted
Opportunities for Pollution  Prevention (TOPP) program recently begun in Stockton,  California.  In
addition, the City of Berkeley, California, will be starting their own version of CIP in 1994 that will include;
        • a comprehensive review of all customers of the regulatory process
        • an Environmental School for individuals and businesses convicted of environmental
          violations within the city limits.
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548                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
6      FUTURE OF CIP

6.1     Beyond Santa Rosa

       The immediate goal of the Santa Rosa POTW is to expand the CIP to cover all auto repair
and service facilities in the entire Sonoma County area. Once this program is administered by the
County, the CIP will  be expanded to include the printing and dry cleaning industries.
       This county-wide expansion contains unique challenges. One of the most demanding is the
coordination and participation of the Bay Area Regional Water Quality Control Board, which is located
60 miles south of Santa Rosa This regulatory body has jurisdiction over the Petaluma Watershed in
the southern portion of the county. It is this watershed that forms the primary drainage for the Petaluma
Marsh, which runs 14 miles through neighboring Marin County to the San Francisco Bay,

6,2    Regional  applications

       The focus on the CIP  now is to expand it downstream  to all of the  agencies  that have
environmental jurisdiction in the entire San Francisco Bay area. Many of these agencies have been
contacted and enthusiasm about CIP  runs very high.
       With CIPs at both the northern and eastern parts of the San Francisco Bay by May 1994,
plans will  be well underway to expand the CIP  to all eight counties that comprise the greater Bay
Area. This will provide a comprehensive auto repair industry CIP for the entire San  Francisco Bay
Area, With this governmental network established, environmental compliance information will begin
being disseminated to the 7 million residents of this large region.
       The use of watersheds by some environmental regulatory agencies  to establish jurisdictional
boundaries makes regional application of the CIP much more effective. Watersheds help define areas
by their ecological characteristics and it is those characteristics that are monitored by the regulatory
agencies.
       CIP builds on this ecological awareness by bringing environmental compliance Information
to all groups involved in the regulatory cycle:  the businesses, the regulatory agencies, and the public.
This simple act of increased environmental awareness will expand the level of environmental literacy
for all three groups, making future dialogue about environmental concerns  much more  effective.

6.3    Environmental education

       Efforts are currently underway in Santa Rosa and Berkeley to get environmental compliance
information to the public. The existing CIP is a good model for immediate regional application, but
an expanded environmental education  program still  needs to be implemented for the public, the
businesses, and the regulatory agencies.
       Several examples of an expanded environmental education program are being considered
on a state level in California,  Some  cities  have  begun environmental award programs to honor
companies that  have gone beyond  mandatory compliance  to  become  more pro-active in  their
environmental management programs. These companies are then used as a benchmark for other
businesses looking  to implement environmental programs in their organization.
       Another example being explored is a mandatory environmental school for corporations and
individuals. The present concept is utilizing the environmental school for violators  of environmental
regulations in an effort to provide education in addition to the litigation. Fines recovered from the
violations would  fund the school. The environmental school concept is quickly being expanded to
make the course mandatory for any  company or individual applying for  any  discharge permit or
registering as a generator of hazardous waste.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         549
6.4    Total public participation

       When environmental compliance information  is made  available to  the  public, market
conditions that support non-compliance will rapidly disappear. The public will change from
consumers, unknowingly participating in the pollution process, to customers who are aware of the
environmental consequences of their actions.
       It is the absence of these customers from participation in the current regulatory process that
creates the intense adversarial atmosphere that now exists between businesses and the regulatory
agencies. The primary customer  of the entire regulatory process,  the public, is excluded from
providing critical market-based feedback to the system.
       By achies/ing P4 in the San Francisco Bay Area through regional display of the CIP sticker,
businesses upstream of the POTWs will enlist their most valuable  ally, the customer, in the pollution
prevention process. Once that occurs, an environmentally literate, free market system will demonstrate
its true role in controlling and preventing pollution.
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550                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        551


PROMOTING VOLUNTARY COMPLIANCE: A VALUABLE SUPPLEMENT TO
ENVIRONMENTAL ENFORCEMENT

STAHL, MICHAEL M.

Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 401 M
Street, SW, Washington, DC 20460 USA


       SUMMAFIY

       The purpose of this paper is to examine how promoting voluntary compliance can contribute
to environmental enforcement programs. The paper suggests that environmental  enforcement
agencies need to embrace  voluntary compliance as  an important tool  which  supplements
deterrence-based  enforcement.  Further, the paper describes the efforts of  various  enforcement
organizations (some environmental, some not) to redirect their mission and strike a balance between
promoting voluntary compliance and  using traditional  enforcement actions. Finally, the paper
discusses the  prospects for  increased emphasis  on promoting voluntary compliance in EPA's
enforcement program.


1      INTRODUCTION

       The fundamental purpose of enforcement organizations is to bring about behavior which
complies with legal requirements. Parties subject to these requirements can be compelled to comply
through formal enforcement action, assuming their non-compliance can be detected and provides a
basis for legal sanction. Alternatively, parties can comply voluntarily, assuming  they are aware of the
requirements, uncierstand them and have the resources needed to comply.
       Assuring compliance requires establishing a credible enforcement presence with the regulated
community. Enforcement actions are the primary means for  assuring  compliance because they
demonstrate to the regulated community that noncompliance can be detected and punished. These
actions induce  broader  compliance  by deterring noncompliance.  The deterrence-based  approach
is the foundation of environmental enforcement efforts in the United States.
       Achieving the real mission of enforcement organizations—assuring compliance with legal
requirements—can be  greatly aided by employing a mix of voluntary and compulsory strategies.
Unfortunately, most enforcement organizations limit their scope to  activities which correct violations
after they occur and  spend little, if any, resources on activities that would prevent violations. These
organizations confine themselves to punishing regulated parties for doing the wrong thing and do
not develop their capacity to assist these parties to do the right thing in the first place. This preference
for compulsory over voluntary approaches has caused many enforcement organizations to view their
mission as the production of enforcement actions and to define success  according to the volume of
such actions (i.e., the more actions taken and penalties collected, the more successful the program).
2     WHY PROMOTE VOLUNTARY COMPLIANCE?

       Environmental enforcement agencies need to examine the mix of voluntary and compulsory
strategies they employ to assure compliance. There are at least three forces which argue for increased
emphasis on promoting voluntary compliance: the disparity between the regulated universe and the
resources available for enforcement; the advances in corporate environmental management; and the
move toward a prevention ethic in environmental protection.
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552                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
2.1     Regulated universe vs. available resources

       The gap between the  scope  of the  regulated universe (i.e., the growing number of
requirements and parties subject to them) and the resources available to assure compliance through
enforcement actions is widening. The volume of environmental laws  and regulations continues to
expand while the resources available to assure compliance with them  is shrinking as budgets for
federal and state governments generally are reduced.
       Formal legal mechanisms are by nature adversarial and very resource-intensive. At current or
reduced resource levels, these mechanisms cannot create the degree  of deterrence necessary to
achieve widespread compliance. There will simply never be enough inspectors and attorneys in the
employ of environmental enforcement organizations to achieve full compliance through enforcement
actions alone.
       By contrast, effective: voluntary compliance efforts such as educating regulated parties about
how to comply with  specific environmental requirements have  the advantage of  reaching large
numbers of these parties wfthout engaging costly legal mechanisms to compel compliance.

2.2    Corporate environmental management

       In  recent years, a growing number of United States' corporations and industry groups have
moved toward more active programs of environmental management. One of the forces behind this
movement has  been an sictive and visible environmental enforcement program which deters
non-compliance. Some  corporations, particularly those with sufficient resources have advanced
beyond compliance to establish other practices which benefit the environment and the corporation.(1)
       Another force behind the movement toward  improved corporate  environmental management
was the passage of Title III of the Superfund Amendments and Reauthorization Act (SARA). Title  III
created the Toxics Release Inventory (TRl), which required manufacturing companies to report annually
to the  government (and thereby disclose to the public) the amount of toxic chemicals emitted to the
environment. This action greatly increased the visibility of corporate environmental impact and has
been a major motivation for environmental improvement. (2)
       This atmosphere of heightened environmental responsibility among influential segments  of
the regulated community offers an opportunity for environmental enforcement agencies. Programs
designed to promote voluntary compliance are now received by a receptive audience that recognizes
the  benefits  of environmental management.  By  establishing  such  programs,  enforcement
organizations can capitalize on the momentum building behind improved  corporate environmental
management,  accelerate their progress toward fulfilling their mission of assuring compliance,  and
expand their contribution to protecting the environment. This was the premise behind an EPA Policy
Statement in 1986 which was intended to promote voluntary environmental auditing by industry. (3)

2.3    The prevention ethic

       Environmental protection is currently in the midst of a paradigm shift. Among environmental
professionals from industry,  government, and environmental advocacy groups there is increasing
recognition and support for the principle that preventing pollution  has  significant advantages  over
end-of-pipe remediation. For industry, support for this principle is based on the view that pollution is
waste  and preventing it can save costs in materials and reduce potential liability. Environmental
protection agencies at all levels of government have embraced pollution prevention as a more efficient
and effective means of reducing environmental degradation than reactive end-of-pipe clean-up. These
agencies are redirecting more of their activities toward pollution prevention.
       Environmental enforcement organizations need to align with and contribute to the pollution
prevention movement.  Case settlement policies that encourage  pollution prevention  projects in
exchange for penalty reduction have shown promise.  (4) Inspection strategies that target facilities
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                 •       553
or industries  with greatest  pollution prevention  potential are another route  by which traditional
enforcement activities can contribute to pollution prevention,
       But there is  a niche of the prevention movement which environmental enforcement
organizations have largely overlooked even though it presents a significant opportunity for advancing
pollution prevention. The niche is preventing violations through promoting voluntary compliance. When
enforcement organizations prevent violations they are, in reality, preventing pollution.
3      EXAMPLES OF PROGRAMS THAT PROMOTE VOLUNTARY COMPLIANCE

       A wide variety of enforcement organizations at federal, state, and local levels of government
have invested in promoting voluntary compliance. Described below are examples from the U.S. EPA,
Massachusetts Department of  Environmental Protection (DEP), the U.S. Occupational Safely and
Health Administration (QSHA), the U.S. internal Revenue Service (IRS), and local police departments.

3.1    The Clean Air Act Small Business Compliance Assistance Program

       In  developing the Clean Air Act Amendments of 1990, Congress realized that many  more
small businesses would be subject to air quality requirements as a result of implementation of Federal
and State air programs. Since many of these small businesses had never before been regulated by
air programs, they have little knowledge of air quality regulations and thus little technical expertise to
determine how to comply with them. Congress designed Sec 507 of the Clean Air Act Amendments
to address this potential problem. Specifically, it requires states to establish compliance  assistance
programs that will provide technical and compliance assistance to impacted small businesses,
       In  particular, Section 507 requires the establishment of a state Small Business Ombudsman
to act as an advocate of small business needs and concerns; the establishment of a small business
assistance program for providing technical and compliance assistance to small businesses; and the
creation of a compliance advisory panel for determining the overall effectiveness of the small business
assistance program. In assuring that there are adequate mechanisms for informing small business
stationary sources of their obligations under the  CAA, these programs will refer sources to qualified
auditors or provide for state-sponsored audits of the operations of such sources.
       Realizing that many small businesses would be interested in learning about and complying
with more than just air quality requirements, EPA is establishing a "Leadership State Grant Program"
that will provide  incentive grants to seven to  ten state small business assistance  programs to
encourage these programs to provide assistance on all environmental requirements from all media.

3.2    Massachusetts DEP—waste prevention first

       In 1988 the Massachusetts DEP launched  a comprehensive  review and assessment  of its
compliance and enforcement effort. The review was undertaken because DER while recognizing that
pollution control iand clean-up are necessary for environmental protection, had determined to shift its
focus to prevention and preservation.
       DEP recognized a "compliance triad", a range of approaches to encourage changes in human
and corporate behavior, and ensure compliance with state environmental rules.  (5) The triad included;
1) promotion  of compliance using education and outreach, technical assistance, and economic
incentives; 2) monitoring compliance through inspections, self-reporting, and response to complaints;
and 3) enforcement through issuance of notices of non-compliance, negotiated consent decrees, or
administrative orders,
       The results of the DEP's blending of the pollution prevention ethic and the range of approaches
in the compliance triad is their program known as Waste Prevention Facility-wide Inspection to Reduce
Sources of Toxics, or Waste  Prevention FIRST. The program  was based  on the idea that  the
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554                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
effectiveness of traditional compliance and enforcement tools can be enhanced by inspecting whole
facilities instead of individual waste streams.
       The program conducts air, water, and hazardous waste inspections simultaneously instead of
one at a time and then points companies in the direction of toxics use reduction, taking advantage
of a new Massachusetts law which mandated plans for toxics use reduction. The program provides
significant efficiencies for traditional  compliance and enforcement activities. For example, the 700
whole-facility inspections conducted in 1993 would have required 2,992 visits to accomplish the same
amount of work done in the conventional single-media way. In addition, the program also provides
resources (through referrals to the State's Office of Technical Assistance) to help violators not only
come back into compliance, but go  beyond it to achieve meaningful and cost-saving reductions in
their use of chemicals and discharges of pollution.

3.3    OSHA's Employer Consultation Service

       Recognizing that the interpretation of complex standards and the ability to identify hazards
In the workplace are often difficult for small employers, OSHA provides free consultation services to
small,  high hazard facilities that request it. In  1992, OSHA made 22,709 consultation visits during
which more than 120,000 hsizards were identified and  corrected. (6)
       Consultants are federally-funded state employees that are trained to help employers identify
and  correct specific hazards. In order to receive these services, the employer first agrees to allow
the consultant to confer with workers  and  to correct any imminent dangers and other serious Job
safety and health hazards in a timely manner.  Consultants also provide guidance in establishing or
improving an effective safety and health program and offer training and education for employers and
employees. After the visit, the consultants furnish the facility with a written report of recommendations
and  agreements. Often, they will conduct follow-up visits to assure that any required corrections are
made.
       Information on facility hazards will be turned over to OSHA for enforcement follow-up only in
cases where there is imminent  danger or  when a facility fails to eliminate or control an identified
serious hazard or imminent danger in accordance with the agreed upon plan. Facilities may be eligible
for a one-year exemption  from generally scheduled compliance inspections.  The exemption is
applicable for employers that receive a comprehensive  consultation visit, correct all  serious and
non-serious violations, post notice of their corrections,  and institute the core elements of an effective
safety and health program. Inspections prompted by  an  employee complaint or a catastrophe are
not exempt,

3.4    The OSHA Voluntary Protection Programs

       The purpose of the Voluntary Protection Programs  (VPP) is to encourage and recognize
excellence in employer-provided, site-specific occupational safety and health programs. It is premised
on the belief that facilities need comprehensive management systems to not only meet  OSHA's
standards, but to go beyond1 compliance to provide the best feasible protection at that site.  In 1992,
there were 150 recognized worksites, injury incidence rates at these facilities average from 35% -
65% below the expected average  for similar industries. Similarly, lost workday injury rates were over
60% below the expected average  in similar industries. (7)
       When employers apply for and achieve approval for participation in the VPP, they are removed
from programmed inspection lists. This frees OSHA's inspection resources for visits to establishments
that are less likely to meet the  requirements of the OSHA standards. In addition, VPP participants
work cooperatively with OSHA in the resolution of safety and health problems. Employee complaints
to OSHA, significant leaks or spills, and all fatalities and catastrophes, however, are handled by
enforcement personnel in accordance with normal OSHA enforcement procedures.
       There are three levels of participation in the  program. The  Star Program  is based on the
characteristics of the most comprehensive safety and health programs. Star participants are evaluated
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         555


on site every three years, with annual injury rate reviews. The Merit Program is aimed at employers
who do not yet meet all the qualifications for the Star Program but who wish to work toward Star
Program participation. Merit participants are evaluated onsite annually. The Demonstration Program
provides companies the opportunity to demonstrate the effectiveness of alternative strategies for
safety and health improvement, particularly in unusual worksites (e.g., logging).

3.5    Internal Revenue Service

       As the agency responsible for processing millions of tax returns and related documents,
administering refunds,  responding  to requests for assistance, and conducting examinations and
collection actions, the  IRS has an enormous job to do. In recent years, the IRS has invested a great
deal of time and energy to identify more effective ways to increase compliance with tax laws and
regulations.  Among the reasons for this investment are two facts: first, the difference between the
amount of taxes due and the amount paid is estimated  at more than $113 billion; and  second, for
each 1% increase in voluntary compliance, approximately $5 billion in additional revenue is produced.
       The  "Compliance 2000" Project is an attempt by IRS to fundamentally redirect its  compliance
effort. Fred Goldberg,  Commissioner of the Internal Revenue Service from 1989-1992 described this
redirection as follows:

        'At present the focus of our compliance effort is principally after-the-fact, case-by-case
       enforcement.  Examinations, collection actions, and criminal investigations are,  and
       always will be, an essential  part of what we do;  indeed they should be expanded in
       the years ahead. But they cannot be pursued in a vacuum. We are changing the  way
       we approach our compliance activities. We are devising, implementing, and assessing
       comprehensive strategies to improve voluntary compliance — strategies that combine
       traditional enforcement actions with education, outreach, and simplification of
        regulations and legislation. The ultimate objective is not  to maximize yield through
       costly,  intrusive and burdensome enforcement efforts. The objective is to enhance
       voluntary compliance." (8)

        The IRS describes their previous compliance strategy as the "caboose rather than the engine
approach to tax administration" because of its essentially reactive, after-the-fact nature. Under the
"Compliance 2000° strategy,  the  IRS will use a proactive  approach which maximizes voluntary
compliance by maintaining current compilers through burden reduction, using nonenforcement means
with taxpayers who are trying to comply, and using enforcement means with taxpayers who won't
comply. By  taking this approach, the IRS believes it will effect taxpayer behavior, minimize taxpayer
burden, and minimize costs to the government.

3.6     Local police departments

        Local police  agencies are another segment of the enforcement community seeking to
supplement the reactive,  case-by-case methods of traditional enforcement  with more Innovative
approaches. These new approaches fall generally within two movements which are driving  many of
the changes being made  in local police departments—"community policing"  and "problem-solving
policing."
        Community policing calls for a police department to  form a partnership with its community
to identify and address community safety problems through a collaborative process. This partnership
is based on the view of police departments more as "contributing to the safety and quality of urban
life,  and less as the feeders of the  criminal justice process."  Problem-solving policing "stems from
a conviction that police 'incidents' are symptoms of underlying problems, usually soluble, and that
policing becomes more effective when it pays  more attention to the problems rather than treating
each incident in isolation." (9)
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556                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
3.7    Common characteristics of these programs

       The organizations described above have taken important steps to invest in activities which
promote voluntary compliance.  There are certain characteristics which seem to be common to ail
these organizations.
       First, each was motivated in part by examining their mission and recognizing that they should
serve a broader public purpose. The determined that old formulations of their ends and means were
not adequate to serve a changing landscape.
       Second, each of those  organizations decided that they would do a better job of assuring
compliance by intervening  earlier in the causal chain which produces non-complying behavior. In
doing so, they are  attempting to bring  about complying behavior without resorting to formal legal
mechanisms.
       Third, even though each of these organizations is placing more emphasis on promoting
voluntary compliance, they are not de-emphasizing enforcement action  as a  means for assuring
compliance. None of these  organizations has defined the use of voluntary and compulsory strategies
as an either/or choice. Rather, they are striving for a balance between these strategies and attempting
to apply each in the most appropriate circumstances.  The organizations realize that promoting
voluntary compliance will be ineffective without a strong enforcement program.
4      EPA EFFORTS TO PROMOTE VOLUNTARY COMPLIANCE

       Although EPA has devoted significant resources to  promoting  voluntary compliance by
providing information, training, and  other  outreach about  new or  changing environmental
requirements, these efforts have been piecemeal. Attempts to promote voluntary compliance have
been largely organized around specific regulations designed to control pollution in a single media,
i.e.,  air, water, or land. This single-media (and sometime pollutant-specific) approach to pollution
control is an artifact of EPA's major statutory authorities and its organizational structure. One of the
consequences of the single-media approach has been an inability to promote voluntary compliance
in a comprehensive, whole-facility package that addresses the full range of requirements with which
a facility must comply.
       Two developments are likely to change the manner  in which  EPA will promote voluntary
compliance in  the  future: EPA's  newly-created  "Strategic  Enforcement Organization"; and the
Environmental Leadership Program (ELP) in which pilot projects to promote environmental auditing
will be conducted.

4.1    EPA's new strategic enforcement organization

       On October  12, 1993 EPA Administrator Carol  M.  Browner announced her decision  to
reorganize the Agency's enforcement program and  create a new  "Strategic  Enforcement
Organization". A key feature of the reorganization was to "reorient the Agency's enforcement program
to focus squarely on the compliance problems that pervade certain  sectors  of the regulated
community." (10) This "sector approach" should allow EPA to develop whole-facility approaches to
enforcement  and compliance and augment enforcement strategies with appropriate compliance
enhancement activities.
       The vision statement for the new Office of Enforcement and Compliance Assurance (OECA)
says it will "encourage strong environmental performance in the regulated community and use a
broad range of tools to achieve compliance," and the operating principles for the new organization
state that "compliance assistance activities should complement traditional enforcement efforts."
       The redirection or EFA's enforcement program presents an opportunity to promote voluntary
compliance using more integrated and effective approaches. The capacity to develop and deliver
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        557
comprehensive compliance assistance  focused on facilities  in an industrial sector or ecosystem
should be greatly enhanced by the reorganization and reorientation of EPA's enforcement program.

4.2    The Environmental Leadership Program

       Motivated in part by the success of OSHA's Voluntary Protection Programs, EPA has been
exploring the feasibility of developing its  own program to promote and recognize voluntary programs
for corporate environmental management. EPA's proposal,  called  the Environmental Leadership
Program, has been the subject of a concerted public dialogue with industry, environmental groups,
and states.
       EPA has decided to proceed with one or more pilot projects to test the feasibility of a voluntary
program to recognize industrial facilities.  The pilots will explore ways to encourage facilities to develop
innovative audit and compliance programs and to reduce the risk of non-compliance through pollution
prevention. The ELP will be managed by the new Office of Enforcement and Compliance Assurance.
5      CONCLUSION

       Promoting voluntary compliance offers significant benefits to  environmental enforcement
organizations as they confront the formidable challenge of assuring compliance. This challenge is
best addressed through a mix of voluntary and compulsory strategies to bring about complying
behavior. The gap between the regulated universe and available enforcement resources, the growing
importance of corporate environmental management, and the movement toward pollution prevention
are compelling reason to invest in promoting voluntary compliance. Various environmental agencies
have recognized these developments and moved toward new approaches which promote voluntary
compliance. Continued  progress toward developing  effective voluntary compliance  programs will
depend on the willingness of government, industry and environmental groups to experiment with new
approaches and share the lessons learned from their efforts.
       ENDNOTES AND REFERENCES

  1. For a detailed description of companies making strong efforts to improve their environmental
    management programs. See Smart, Bruce (Ed.), Beyond Compliance: A New Industry View of
    the Environment, World Resources Institute, 1992,

  2. Ibid., pg.89.

  3, See United States Environmental Protection  Agency "Environmental Auditing Policy Statement;
    Notice" Federal  Register vol. 51, No. 131, Wednesday, July 9, 1986, page 25004.

  4. Examples of enforcement settlements which include  a penalty  reduction in exchange for
    conducting  pollution  prevention projects  can  be found in "Pollution  Prevention Through
    Compliance  and Enforcement," U.S. Environmental Protection Agency. December 1991.

  5. A description of the Massachusetts program can be found in "Making It Count;   DEP's New
    Compliance  and Enforcement Strategy," Massachusetts Department of Environmental Protection,
    January 1994.

  6. "Consultation Services for the  Employer," U.S. Department of Labor, Occupational Safety and
    Health Administration, OSHA3047,1991  (revised).

  7. "OSHA's Voluntary Protection Programs," U.S. Department of Labor, Occupational Safety and
    Health Administration, 1992.
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558                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
 8- "Tax Systems Modernization," Statement of Fred I Goldberg, Jr., Commissioner of Internal
    Revenue,  before the subcommittee  on Commerce, Consumer and Monetary Affairs, House
    Committee on Government Operations, July 9,1991.
 9. These descriptions  of community policing and  problem-solving policing are from  Sparrow,
    Malcolm, Pressing Duties: Government's Changing Approach to Compliance, Praeger Books,
    Spring 1994.
10, "New Strategic Enforcement Organization," memorandum from EPA Administrator Carol Browner,
    October 12,1993.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       559
                    SPECIAL TOPIC WORKSHOP
                               Role of Police
 1,  The Role of Local, County, and State Police Officers in New Jersey in
    Environmental Enforcement, £ A/eafeey	561

 2.  The Task of the Police, R. Messing .,	571
See related papers from other International Workshop and Conference Proceedings,

  1, Environmental Law Enforcement and the Police, Me van Heken, Volume II, Utrecht,The
    Netherlands

  2. The Public Prosecutor's Office Of Hungary and Its Development, S. Fulop, Volume I, Budapest,
    Hungary

  3. The Development of the Police's Enforcement Position in the Field of Environment, M,
    Horstman, Volume II, Budapest, Hungary

  4, The Role of Interpol in Environmental Enforcement, S. Klem, Volume II, Budapest, Hungary
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        56t


THE ROLi OF LOCAL, COUNTY, AND STATE POLICE OFFICERS IN
NEW JERSEY IN ENVIRONMENTAL ENFORCEMENT

NEAFSEY, ED

Assistant Attorney General, New Jersey Attorney General's Office, Division of Criminal Justice—
Environmental Crimes Bureau, Trenton, New Jersey 08625 USA


       SUMMARY

       This article  explores the work of local, county, and state law enforcement officers  in New
Jersey to complement and enhance the state's civil enforcement effort. Special attention is given to
the investigative activities of the Environmental Crimes Bureau (ECB), part of the Division of Criminal
Justice (DCJ) in the New Jersey Attorney General's Office, and how the ECB relates to its regulatory
counterpart, the Department of Environmental Protection and Energy (DEPE).


1      INTRODUCTION

       The preeminent goal of environmental laws, both civil and criminal enforcement statutes, is
protection of the health and safety of the public, as well as the quality of the environment. Thus, full
compliance with all environmental requirements established by permit, regulation, or law, which is
achieved through rigorous enforcement, is critical. To this extent, the philosophical underpinnings of
civil and criminal environmental enforcement are identical.
       To  accomplish the penultimate  objective  of full compliance,  potential violators  must
comprehend that the  cost of non-compliance will always be significantly higher than the  cost of
compliance. Civil and administrative financial penalties drive this fundamental point home and provide
incentives to comply. However, the stigma of conviction and criminal penalties, especially incarceration,
which represents society's sternest sanctions for deterring environmental non-compliance, must be
used in order to deter those who view civil penalties as a cost of doing business.
       Generally, the distinction between civil and criminal enforcement schemes is based upon the
level of punishment and proof  requirements. While  a violator may face civil and administrative
penalties regardless of fault, generally only a violator who possesses mens rea will be criminally liable.
Therefore, criminal  enforcement is an appropriate and effective response in cases of intentional or
persistent non-compliance.
       In New Jersey, the DEPE has responsibility for civil and administrative enforcement. It deploys
approximately 400 enforcement inspectors throughout the state to monitor solid waste and hazardous
waste permit holders, as well as air  pollution and water pollution sources, and to ensure that
the state's natural  resources  are protected. The DEPE  has aggressively implemented its
civil/administrative enforcement program collecting more than $40 million in penalties during calendar
years 1991 and 1992 {the last two calendar years for which numbers are available).


2     STRUCTURE FOR LAW ENFORCEMENT IN NEW JERSEY

       The New Jersey Attorney General is the chief law enforcement officer of the state and is
charged with the responsibility to direct the detection, enforcement, and prosecution of the criminal
business  of the! state so as  to secure the benefits of a  uniform and efficient enforcement and
administration of the criminal  laws throughout the state. The functions and powers of the Attorney
General relatinci to these responsibilities are exercised through the DCJ pursuant to the Criminal
Justice Act of 1970. The DCJ has the original jurisdiction of the Attorney General to investigate and
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562                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
prosecute criminal offenses of statewide significance, Prosecutor's Office supersession matters, and
all criminal appellate matters of statewide significance. The DCJ also maintains primary statewide
responsibility for the investigation and prosecution of organized crime,  corruption,  and criminal
environmental cases, as well as insurance fraud, Medicaid fraud, securities fraud, and tax fraud.
       The Attorney General handles environmental cases, both civil and criminal, through the Office
of the Environmental Prosecutor (OEP), the Division of Law, and the DCJ.  Pursuant to an Executive
Order issued by the Governor, the OEP was created in 1990, as part of the Attorney General's Office,
to coordinate environmental enforcement policy—civil, criminal,  and administrative—in New Jersey
and to  oversee the prosecution of enforcement  actions in priority cases. State-level  criminal
prosecutions under  environmental statutes  and the New Jersey Code of Criminal Justice are
implemented by the DCJ  through the ECB.  During calendar years 1991 through 1993, the ECB
prosecuted cases that resulted in sentences totaling 60 years imprisonment for 15 defendants and
the imposition of more than $23 million in criminal fines and restitution.
       The  ECB has been in operation since 1980. Presently, the bureau comprises 33 State law
enforcement officers—25 State Investigators and 8 Deputy Attorneys General. The Deputy Attorneys
General assigned to fie Environmental Crimes Bureau provide assistance during the course of an
investigation with regard to search warrant and wiretap applications. They  also present evidence
uncovered during an  investigation to State Grand Juries and  prosecute cases  at trial. State
Investigators are authorized by law to assist the Attorney General  in the  detection, apprehension,
arrest, and conviction of offenders. In short, they are police officers empowered to investigate any
criminal matter. State investigators assigned  to  the ECB receive specialized training and develop
unique expertise that is dedicated to combating environmental crime. These environmental policemen
supplement the civil enforcement role of regulatory inspectors by responding to environmental crime
scenes throughout New Jersey and by investigating allegations of environmental and other types of
crime. In performing this function, they are the backbone of New Jersey's environmental crime-fighting
network,
       In New Jersey the following environmental statutes authorize civil, administrative, and criminal
action: the Clean Water Enforcement Act, the Solid Waste Management Act, the Air Pollution Control
Act, the Freshwater Wetlands Protection Act, the  Comprehensive Regulated Medical Waste Act, and
the Spill Compensation and Control Act. Thus, a violation of any one of these laws can result in civil
and criminal penalties.  In addition, there are many other environmental statutes in  New Jersey that
provide for civil and administrative enforcement remedies, and the Code of Criminal Justice includes
environmental and traditional crimes,  such as racketeering,  bribery, theft,  forgery and fraudulent
practices, tax evasion, corporate misconduct, official misconduct, and murder.
       Since law enforcement resources devoted to environmental enforcement are limited, police
personnel must be  used in a way that complements the work of regulators. Indeed, after years of
experience,  the ECB has developed so that the key focus of its decision-making with respect to the
assignment of law enforcement resources is the enhancement of the full compliance goal.  In this
regard, the ECB's mission has grown beyond  the reactive mode of merely responding to reports of
environmental incidents. Now the ECB concentrates on proactive investigations aimed at ferreting out
and exposing sophisticated and complex criminal environmental violations. Of course, in order to do
justice to this objective, ECB cops must proceed with an eye toward establishing environmental and
traditional crimes. Additionally, they must rely on the cooperative efforts of county and local police.
       New Jersey comprises 21  county government entities and 567 municipalities, each with its
own duly constituted law enforcement group.  Because of its  small size and large  population, New
Jersey  is the most  densely populated state  in the nation.  Its two  major industries  are
chemical/pharmaceutical and tourism; therefore, its economy is based upon industry and natural
resources to a  significant extent. These  factors  demand a serious approach to environmental
enforcement in New Jersey.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         563
3      ROLE OF LOCAL AND COUNTY POLICE

3.1    Local police

       The local law enforcement function includes traffic duty, patrol work, providing general public
assistance, and responding to specific calls for service. Each of these obligations makes local patrol
officers uniquely qualified to detect environmental crimes, provided that they have received sufficient
training to recognize these events. For that reason, an environmental offenses training course for New
Jersey police officers was established by the OEP working with the ECB. The course of instruction
has been mandated by the State Police Training Commission as required material for basic recruit
training. Similar training is being considered for use as an in-service instruction module for all New
Jersey police officers.
       The purpose of this course  is to acquaint local police with hazardous, medical, and solid
waste offenses—Including manifest and other  paperwork violations—and  water and air pollution
offenses. Additionally, the course provides  guidance regarding how to handle  an ongoing
environmental incident.
       First,  if possible with due regard to his or her own safety, a police officer should effectuate
the cessation of an ongoing discharge. Second, that officer will immediately notify the fire department
or Hazardous Materials Unit, the DEPE emergency response hotline, and, when necessary, criminal
investigators  (local, county,  or state), thus  bringing  indispensable expertise to  bear on  an
environmental incident. Third,  the officer will be aware of the need for crime-scene preservation,
identification of witnesses, and arrest when there is probable cause to believe that a crime is being
committed in the officer's presence.
       Proper handling  of an environmental crime incident is a complex task.  Integral to
environmental crime-scene processing is taking samples; however, the various  investigative steps
typically undertaken  at all crime scenes to recover physical evidence and to speak with witnesses
are equally important. This investigative work cannot, however, take primacy over the regulator's effort
to abate the threat to public health or natural resources posed by an environmental event.
       A local officer who has undergone this training will more ably recognize an environmental
incident and  respond  with heightened caution and sensitivity. By  preventing or mitigating the
environmental impact of a release, the safety of the public will be ensured. The first officer to receive
this training in virtually  every municipality was the police department's  environmental liaison officer.
       The New Jersey Chiefs of Police Association and the Association's Advisory Board voted to
support the  request of the OEP for the designation of an experienced police officer to be the
environmental liaison officer in each municipality to act with the health officer as the focal point on
the local level for environmental enforcement activities. It is not the intention to train these officers for
hands-on involvement with environmental crime scenes, but rather to equip them to coordinate local
criminal issues with county prosecutor representatives and state officials with the DEPE or ECB, if
and when the need arises.
       It  is the patrol  function aspect of municipal law enforcement in particular that places local
police officers on the front line of environmental crime fighting. From that vantage point, a more highly
trained police officer can serve as the eyes and ears of both regulatory enforcement personnel and
criminal prosecutors.

3.2    County police

       Each of New Jersey's  21 County Prosecutors serve as the chief law enforcement officer in
his or her respective county. A  County Prosecutor is vested with  the same powers within county
geographic borders as the Attorney General possesses statewide with respect to the detection, arrest,
indictment, and conviction of lawbreakers. Each County Prosecutor's Office is composed of attorneys,
assistant  prosecutors,  police, and county detectives and investigators.
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564                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       Since 1982, the DCJ lias conducted training programs to develop the expertise of county
detectives and  prosecutors  in environmental criminal law, regulations,  crime  scene processing,
sampling  procedures,  and  surveillance.  Additionally, county detectives have been temporarily
assigned to the ECB in order to acquire firsthand experience in environmental crime investigations.
       Since environmental cases  are resource intensive,  a county's commitment to pursue
environmental crimes depends upon the availability of funds. Therefore, the interaction between
county and state law enforcement personnel in prosecuting environmental cases takes on added
significance. In New Jersey, counties seek bang for their buck; the state seeks to devote its resources
to environmental violations having a statewide impact.
       Straightforward cases, such as "drum dumps" involving individuals and small business, can
be adroitly handled at the county level. Where needed, the ECB provides technical assistance to
county prosecuting agencies in this type of case by making specialized surveillance equipment and
personnel available to assist in the  investigation, execution of search warrants, and collection of
samples. Nonetheless, the county remains the lead agency responsible for the investigation.
       More difficult cases require a  cooperative investigation. This entails  joint dedication of
resources by state and county law enforcement agencies. In these cases, the agencies work together
equally as one unit. This pooling of resources is exceptionally beneficial in investigations that require
both a detailed knowledge of street sources of information and an understanding of environmental
business and financial practices.
       One example of a joint state-county investigation  involved a large-scale drum dump  in the
southern New Jersey Pinelands, Investigators from both the ECB and  the Atlantic County Prosecutor's
Office responded to the site where someone had  dumped approximately 60 drums and containers
of hazardous waste. Working the case jointly, state and county investigators were able to identify and
locate the individual who  had transported the hazardous waste from a northern New Jersey county
to the Pinelands where he  illegally  dumped it The ECB successfully prosecuted this "midnight
dumper" and he was sentenced to jail.
       Finally, cases of statewide impact involving complex, sophisticated schemes of criminality are
handled by  the ECB.  Exhaustive investigative action is required to uncover  and break into these
schemes. County Prosecutor Offices relieve state prosecutors of a large burden when they investigate
environmental crimes that have a localized effect. This in turn frees state prosecutors to pursue their
cases in a well-focused and thorough manner and ensures that no cases fall through the cracks.
Moreover, the strategic use of law enforcement resources at the county and state level results in a
more efficient criminal enforcement program.
       Recently, the DCJ reinstituted its environmental liaison program whereby the ECB assigns
one attorney and one State  Investigator to serve as liaisons with each County Prosecutor's Office.
The liaisons act as conduits for exchange of intelligence, case information, and technical updates.
Additionally, the liaisons  foster a cohesive  state-county  working relationship.  OEP staff are also
available  to provide legal advice and complementary  civil and regulatory  support to county
prosecutors, when necessary. In an era of diminishing resources, a productive working relationship
between county and  state  law enforcement agencies is the keystone to  a  vigorous attack  on
environmental crime.
 4     THE ROLE OF STATE INVESTIGATORS

 4.1    Interaction between DEPE and ECB

       The ECB is  the lead state  law enforcement  entity charged with the responsibility of
 investigating and prosecuting environmental crimes in New Jersey. However, based upon its expansive
 responsibility, knowledge of Nisw Jersey industries, and large compliment of enforcement inspectors,
 the DEPE possesses incomparable data pertinent to environmental enforcement. Therefore, the ECB
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         565


works closely with the DEPE in order to tap Into its insight of the bigger picture so that the ECB may
define those      that warrant Intensive scrutiny. This is done through informal and formal referrals.
       Informal referrals are forwarded by the DEPE on a daily basis. They include copies of DEPE
regulatory enforcement documents (orders, notices of violation, notices of civil administrative penalty
action). Last year 2,500 of these documents were reviewed by an attorney at the ECB for possible
criminal investigative follow-up. The benefits of this process extend beyond individual cases, however.
It allows the ECB to identify developing trends with respect to violations and non-compliance.  In turn,
these discoveries become very helpful when selecting investigative strategies and targets.
       The DEPE: also formally requests that the ECB conduct criminal investigations into specific
matters. These referrals  typically  involve intentional  or unpermitted discharges, the  unlawful
abandonment,  treatment, transportation or  disposal  of hazardous waste,  or the concealment,
falsification or destruction of records required to be filed with the DEPE.
       Additionally,  the  Emergency Response Unit at the'DEPE notifies  the ECB  duty  officer, a
Supervising State Investigator, on a 24-hour basis of any emergent environmental incident that may
have criminal implications. These  matters, which  again often include intentional  or unpermitted
discharges and abandoned or released hazardous waste, are responded to by ECB investigators for
the purpose of gathering criminal evidence prior to clean-up or other disturbance of a crime scene.
Furthermore,  these responses provide an opportunity for a hands-on view of evolving problems and
consequently become a critical component of deliberations that lead to broad investigative targeting
and the selection of specific investigative strategies.

4.2    Crime scene  response and surveillance

4.2.1  Training end sample collection

       The heart of  a potent environmental  crime  fighting unit is training. Every ECB investigator
receives and maintains Occupational Safety and Health Act certification for working in areas where
contact with hazardous materials or hazardous waste is likely. In addition, each investigator assigned
to respond to an environmental crime scene has been thoroughly trained in the use of proper sampling
techniques.
       Therefore, even though the  ECB  can utilize regulators for environmental evidence collection,
the ECB maintains technical capability to secure its own sample evidence. ECB does this to facilitate
the  search for answers to questions intrinsic to every  criminal  prosecution—Was there a crime
committed and "Who dunnit."  ECB investigators are also trained in criminal procedure and gather
evidence critical to proof of the crime in  a manner that precludes suppression, chain of custody, or
other  legal challenges related to  collection and documentation of evidence. Furthermore, in
maintaining an independent capability to  acquire sample evidence, the ECB can avail itself of sample
collection under court authorized surreptitious search warrants and thereby safeguard  the  strict
confidential nature of on-going covert investigations,
        ECB  samplers have  also developed field testing  procedures that  are utilized to  screen
potential samples. When a State Investigator departs from a crime scene  or a search warrant site,
he or she can be confident that the sample has the potential to exhibit a characteristic of hazardous
waste, unless the field test indicated otherwise. Thus, the investigator will not confront a laboratory
report in five or six weeks that fails to support a necessary element of an environmental crime.
        At some crime scenes, the  ECB  will depend upon the regulators to take samples  for use in
the  criminal  investigation. In  those  cases, the DEPE and ECB  employ a task force  approach to
crime-scene processing. However, the ECB normally opts to rely upon its own technical ability to take
samples at a site In order to speed  up its work in solving the  crime and to keep regulators
unencumbered of criminal Investigative duties and totally focused on regulatory responsibilities.
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4.2.2   Multi-purpose vehicle

       An efficacious response to an environmental crime scene requires greater capability than is
provided by undercover or four-wheel drive vehicles. In analyzing its needs in this regard, the ECB
determined that the following vehicle requirements were necessary:  transportation to crime-scene
and search warrant sites with  all necessary  safety  and evidence gathering  equipment; a
command-and-control function for coordinating large-scale operations; and an ability to fit into urban
industrial locations in a way that  allows mobile  and stationary surveillance to  be conducted
unobtrusively.
       Given these requirements and a climate of fiscal responsibility, a multi-purpose vehicle was
proposed. It took the ECB approximately five years to design, secure funding for, and acquire the
vehicle built. The vehicle has proven to be an invaluable asset for the response function. This is true
for short-term responses as well as extended stays,  which have been as long as two weeks.
       The  vehicle is equipped  with an air cascade system that can be utilized  both for filling
self-contained breathing apparatus  (SCBA) bottles, as well as for supplied air needed  during
prolonged periods. Protective clothing carried on board provides outfitting and support for qualified
individuals up to and including level B protection. For crime-scene processing, the vehicle carries
both still and video cameras and is equipped with a pan tilt and focus unit for remote documentation.
       The  vehicle's command function is supplied by an onboard cellular telephone,  as  well as
other radio systems that allow communication with other bureau members, local and county police,
State Police, and the DEPE. There is adequate room onboard for conducting meetings and  witness
interviews, as  well as writing stations for several  individuals. The vehicle  is often used  at a crime
scene or a search warrant site for meetings with DEPE and ECB personnel.
       In reference to the surveillance function, the vehicle has been successfully utilized in a number
of covert operations. The vehicle has several ports that can be opened where cameras,  both video
and still, can be utilized to document the targeted activity. The vehicle also has a periscope which
can be utilized for both video and still photography. On board is a dedicated video system, as well
as a date-time recorder and a video recorder.  The video recording  system includes an audio
component  for use when agents or investigators are wearing on-body recording and transmitting
devices. The vehicle has  proven to be  invaluable from a surveillance  standpoint in documenting
transportation-related environmental crimes and fraud-type offenses.

4.2.3  Marine surveillance vessel

       For  six months  in 1988,  after receiving  a  tip from an informant, the ECB conducted a
comprehensive investigation into the illegal sludge  dumping activities of General Marine Transport
Corporation. General Marine Transport had contracts with New York and New Jersey sewer authorities
to transport sewage sludge to the U.S. Environmental Protection Agency's designated 106-mile dump
site in the Atlantic Ocean. On numerous occasions, General Marine barges dumped sludge in the
New York/New Jersey Harbor or  in the ocean well short of the 106-mile dump site in order to save
time and money.
       The investigation required round-the-clock surveillance of General Marine's barge movements,
as well as the monitoring of company radio communications with barges and tugs. This surveillance
was conducted from discreet locations on land and on water. After a subsequent five month grand
jury investigation, a State Grand Jury returned an indictment against General Marine Transport Corp.,
its president, and several company employees for discharging toxic pollutants. The ECB prosecuted
the case and obtained a $1 million penalty against the corporation and a jail sentence for one of the
company officers.
        Based upon this  experience and the fact that 75% of New Jersey is  surrounded by water
(rivers, bays,  and ocean), the ECB determined that a  marine surveillance vessel was needed to
provide  adequate protection to the state's marine  and coastal environment. The DCJ  allocated  a
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         567


funding source from its forfeiture account (monies seized because they are derived from criminal
activity) and a marine surveillance vessel was designed,
       The boat was configured so that it could present various undercover silhouettes, such as a
commercial fishing vessel, a sport recreational vessel, or a commercial diving boat. The vessel was
outfitted with the latest electronic navigation devices and it has the capability of mounting the bureau's
thermal imaging equipment, which can be used regardless of visibility—i.e., during fog conditions,
at low light, or at night. The vessel can also be utilized for underwater activity as it can accommodate
the ECB's dive team.
       The vessel has been used to successfully follow barges in an undercover capacity, to observe
onshore disposal activities that impact  New Jersey waterways, and to provide backup  to  a law
enforcement officer wearing an authorized body recorder and on-body transmitter. For example, one
case  involved a location that made the  water the only point  from  which the ECB could monitor a
conversation and activities and, simultaneously, provide safety and  security for an undercover cop.
       The vessel is used for other critical enforcement activities. For example, it has been used to
gather evidence in a civil water pollution case and to collect firsthand data for use in a government
report. Also, during eight months of the year, the vessel is routinely used in a patrol fashion to uncover
unpermitted discharges to the state's major waterways. This information is shared with the DEPE.
       One State Investigator has, over a two-year period, undertaken and fulfilled the requirements
for obtaining his Captain's license and is now a Master of Inland Waters. Both he and another state
investigator have completed on-the-job training with the United States Coast Guard.
       The State Police Marine Bureau patrols New Jersey waterways on a 24-hour-a-day basis. The
bureau is composed of waterborne  safety officers  who are typically the first responders to any
environmental spills into or on the state's waterways by virtue of their ready status. They are authorized
to subject those ^*vho pollute state waters to a summary civil enforcement proceeding. They are also
trained to recognize water pollution crimes, in which  case they immediately  notify the ECB.

4.2.4   Electronic surveillance and thermal imaging equipment

       Since 1989, criminal prosecutors have had a new weapon at their disposal in the fight against
environmental crimes. That year, New Jersey's Wiretapping and Electronic Surveillance  Control Act
was broadened to cover organized criminal activity involving the  unlawful  transportation,  storage,
disposal, discharge, release, or abandonment of hazardous, toxic, or polluting substances. The term
electronic surveillance covers a variety of law enforcement methods that monitor the discussions or
activity of targeted individuals. This evidence is often damning.
        The methods include, but are not limited to, the use of wiretaps, room and vehicle bugs, body
wires, night-vision/light  intensification  devices,  fax and data  transmission intercepts, and counter
measures to detect any of these procedures.
        Some ECB investigators have an extensive background in electronic surveillance from prior
experience with narcotics and organized crime investigations conducted by the DCJ. Additionally, the
ECB has successfully implemented several of these techniques in past environmental investigations.
Also, one State Investigator assigned to the ECB possesses the qualifications and skill necessary to
operate all of the! equipment involved in  these methods of electronic surveillance.
        The use of the thermal imaging equipment allows the ECB to  view containers and, if conditions
are right, make a judgment as to whether the container is full of liquid, partially full, or empty.  These
containers range in size from individual 55-galIon drums to one-million-gallon aboveground storage
tanks.
        This capability was used in conjunction with land-based surveillance during the investigation
of a tank storage farm. The thermal imager was utilized to identify  tanks that were full. Surveillance
then focused on these targeted tanks and tracked the material in these tanks as it was piped onto
a barge and transported from one location to another. This procedure allowed the ECB to maximize
resources for marine surveillance at the exact moment of material transport. Thermal imaging has
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568                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
also been employed by the  ECB on  mobile containers, such as barges, and air pollution control
devices, such as stacks with scrubbers.
       The ECB was able to acquire this thermal imaging equipment because of its success in a
major case. As part of a settlement of a multi-state, federal water pollution case, Exxon was required
to pay civil and criminal penalties. Additionally, money was set aside for natural resource restoration
and a dedicated equipment fund was set up under New Jersey's Clean Water Enforcement Fund.

4.2.5  Dive team

       Although a relatively  recent addition to the ECB, the dive team has been utilized in bureau
investigations.  The dive team has been used to recover items associated with near-shore dumping
of hazardous materials and to obtain samples of bottom sediments. It has also been called upon to
assist other law enforcement agencies in criminal  investigations.
       Starting with a qualified  master diver, the ECB now has 7 State Investigators who possess
dive certification. Dedicated equipment monies in the Clean Water Enforcement Fund were used to
make the  initial acquisition of equipment  for the dive  team.
5      ILLEGAL ENVIRONMENTAL ENTERPRISES

       Individuals acting alone, either for themselves or on behalf of a company,  usually commit
environmental crimes to save money—that is, it costs less to dispose of waste illegally. Others form
complex and sophisticated conspiracies and commit environmental crimes for financial gain—that
is, there is money to be made in enterprises involving the illegal disposition of waste. Unlike the first
category of environmental crimes, these conspiracies often center around disposition methods that
are misrepresented as being in accordance with permit, regulation, and law.  In other words,  the
conspirators utilize a legitimate system to perpetrate environmental crimes and coverup their activity
with forgery and fraudulent practices.
       The ECB has employed a variety of techniques to investigate these intricate cases. Following
the paper trail is as important as developing leads provided by informants.  Moreover, it is often
necessary to create an undercover operation designed to infiltrate the conspiratorial  scheme. Where
warranted, the ECB has established business relationships with conspirators by setting up dummy
corporations  and having State Investigators pose as  corporate officials. Through participation in the
scheme,  the ECB gains the trust of the conspirators, thereby learning each  layer of the  illegal
enterprise, verifying it through vehicular and marine  surveillance and photographic  documentation,
and recording the inculpatory statements of conspirators.
       For example, the DEPE asked  the ECB to investigate actionable conduct  in the waste oil
industry that was believed to involve prohibited mislabeling and sale of waste oil and hazardous waste
oil. Through review of the paper trial, undercover activity aimed at developing a business relationship
and various types of  surveillance  undertaken over an 18-month period, the ECB  discovered that
licensed hazardous waste treatment facilities were  passing  material  on without treatment,  that a
licensed laboratory produceci false test results for waste oil, and that untreated waste oil was illegally
shipped out of state.
       Such  lawlessness threatens  the regulatory system at its  core because  permits  are
self-monitoring. The agency must be confident that it is receiving  accurate and complete information
from a permittee for its decisions to be meaningful.  Moreover, false filings or concealment of facts
required to  be reported ultimately erode public confidence  in the  regulatory  program. Therefore,
criminal prosecutors must set priorities and allocate resources committed to ensuring the integrity of
the regulatory agency's mission.
       Since these illegal enterprises encompass far more than  pure environmental crime, a
successful investigation requires  concerted action to uncover and  prove the  complete pattern of
racketeering activity. Indeed, the ECB seeks to establish traditional crimes because they often carry
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                          569


more significant jail terms than environmental crimes. Furthermore, the ECB has used evidence of
traditional crimes to lay the predicate for a racketeering charge, which entitles the state to forfeit a
defendant's assets upon conviction.
       The only certain way to decapitate an illegal enterprise that purports to be a legitimate
business operation is to seize money and property acquired through a pattern of racketeering activity.
Unfortunately, when persons involved in these enterprises are imprisoned, there are always individuals
who are willing to risk apprehension in order to keep the lucrative operation going. Forfeiture of the
assets of the enterprise and of property  devoted to the illegal activity slows that "takeover" process
down.
       The first successful DCJ prosecution under the New Jersey Racketeering Act emanated from
the ECB. It involved illicit landfilling activity and the unlawful disposal of voluminous quantities of solid
waste. Public officials were paid cash bribes to protect the enterprise,  which consisted of many
individuals and waste hauling companies. Due to the nature of the illegality, an undercover operation
was deemed inappropriate. Therefore, the investigation centered on surveillance, both physical and
electronic.  After conviction at trial in 1990, one high-ranking town official received a 20-year sentence
and a deputy police chief was sentenced to 15 years in state prison.
       A 1992 investigation by the ECB culminated in an indictment charging public works  officials
and private contractors with racketeering and theft for either accepting or  paying cash bribes for the
illegal dumping of commercial solid waste. The dumping occurred at a transfer station authorized by
the DEPE to accept municipal waste only. Under the scheme, the municipality was saddled with the
responsibility of paying for the ultimate disposal of the waste.
       This investigation was worked jointly by county and state law enforcement officials. Its integral
components included surveillance and the use of an undercover cop who obtained  access to the
transfer station by posing as a contractor. The case is scheduled for trial  in 1994.
       As these cases demonstrate, conspirators who prey on the public and pollute the environment
by perverting the regulatory system are an obvious menace to society. The  complexity of the business
enterprises they form and their ability to use or corrupt legitimate businesses and public  officials
present a real challenge  for law enforcement  officers and prosecutors. The menace and challenge
justify, indeed demand, a comprehensive and creative law enforcement response.


       CONCLUSION

       Local, county and state environmental law enforcement efforts, like civil enforcement action,
must be directed toward achieving  full compliance with the limitations established  by permit,
regulation, and law. Police at each of these levels in New Jersey make significant, though different,
contributions in this endeavor.
       Local police  can  ensure that  regulators and  criminal prosecutors  receive  immediate
notification of environmental incidents or  potential environmental events and thereby  mitigate or
prevent public harm and natural resource damage. County detectives can appropriately investigate
intra-county environmental crimes and assist State Investigators in cases where a joint investigation
will  be more  efficacious,  such  as in inter-county crimes cases.  In  either instance, the  county law
enforcement  effort against environmental crime  provides ECB  cops with the freedom to tackle
complicated criminal schemes.
       Investigations of  illegal enterprises are resource intensive  and  time consuming. A major
investigative commitment is required to uncover and conclusively establish a pattern of  criminal
activity.  This  includes various types of surveillance, a complete  review of the paper trail, and
undercover activity. Dedication of resources of this magnitude has paid off in New Jersey because
the DCJ  has ensured that its State Investigators are highly trained to handle these cases and because
of county environmental prosecutors.
       The work of state environmental crime fighters must also be closely allied to  the mission of
their regulatory counterparts. Informal and formal referrals from the DEPE and emergency response
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notifications furnish the ECB with information vital, not only to individual cases but also, to strategic
targeting. When the ECB sets its case priorities, ft selects proactive investigations that are supportive
of the DEPE, and special attention is given to illicit schemes  that present a grave danger to the
environment or threaten the integrity of the regulatory process.
       Each level of law enforcement in New Jersey has a distinct role to play in fighting environmental
crime. Yet, by maintaining a focus on the goal of full compliance, local, county, and state efforts blend
together in a way that makes the work of the whole law enforcement community greater than the
sum of the parts.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        5T1


THE TASK OF THE POLICE

HESSING, ROB

Head of Rotterdsim-Rijnmond Regional Police, Holder of Environment Portfolio, Council of Chief
Constables, Rotterdam-Rijnmond Regional Police Headquarters, RO. Box 70023,3000 LD
Rotterdam, The Netherlands


       SUMMARY

       In  the  Netherlands it has become obvious that the police can play an  important role in
enforcing laws partaining to the protection of the environment. Besides having a criminal investigative
function, the police also hold a key position with regard to the execution of policies; furthermore, the
police may be expected to set an example and to regard environmental awareness as one of their
responsibilities.
       In  order for  the  police to be able to perform this relatively new task with regard to the
environment, the relevant infrastructure must first be created. Particular attention must be paid to the
specific tasks associated with this, to education and training, to computerization, and to participation
in the general enforcement of environmental laws.


1      INTRODUCTION

       The enforcement of environmental laws is a relatively new task for the police. Until the end
of the 1980s tho Dutch  police paid hardly any attention to detecting environmental crimes, giving
priority to combating other forms of crime. During the past few years, however, society has become
more aware of environmental issues, and violations of environmental standards are seen more as
violations of essential and basic  behavioural norms. This has been accompanied  by an increase in
the importance of criminal law enforcement.
       These  developments have caused the police to reconsider their task,-role, and position in
relation to environmental law enforcement. At present, the police are very much involved in determining
the form and content of their role in relation to environmental legislation. In May 1990 the Co-ordinating
Police Council  (in which all police forces in the Netherlands are represented) drew up an environmental
policy plan entitled "Handhaven of verliezen" ("Maintain or lose"). The funds that became available
through the National Environmental Policy Plan (NMP), the so-called NMP police funds, have enabled
the police to initiate  a great number of activities.


2     THE TASK OF THE POLICE

       The  answer to  the question whether the police  might be of importance  in  enforcing
environmental  laws must be "yes" in view of the fact that:
       •  The  palice are available 24 hours a day, 7 days a week, which means they are well
          placed to observe.
       •  The  organization is equipped to trace crimes.
       •  As regards criminal investigation, the police are already accustomed to operating
          under the auspices of the Department of Public Prosecution.
       •  The  police are regarded as objective and independent.
       •  The police are well advanced in, and acquainted with,  the areas in which they
          operate in, and they have access to many sources of information.
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572                          THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
       A description of the various aspects of the role of the police  in enforcing  environmental
legislation is given below, followed by a discussion of the choices that have to be made with regard
to the implementation of the relevant policies.

2.1    Various aspects of the task of the police

       What exactly is  the task of the police where the enforcement of environmental laws  is
concerned? The environmental policy plan of the Co-ordinating Police Council states that their task
is threefold: criminal investigation, supporting the execution  of relevant policies, and increasing
environmental awareness within the various police forces in the Netherlands.
       Criminal  investigation should be both  repressive and preventive; it can vary from simply
observing and monitoring  to a full-scale  criminal  inquiry. The crimes with which the police are
confronted may be classified as follows:
       •  Less-serious environmental  crimes committed in residential areas (for example,
          street litter, noise pollution, car wrecks on housing estates),
       »  Serious environmental crimes committed by certain companies through negligence
          or intentionally (for example, the occasional illegal dumping of waste in surface
          water or the illegal clumping of refuse).
       •  Very serious  environmental crimes involving important  social and economic
          interests and compfex fraudulent activities (for example, the systematic dumping of
          chemical waste).

       The supportive tasks of the police  include assisting in the exercise of authority, visiting and
accompanying security personnel who work as surveillants at industrial sites, supervision with regard
to the execution of administrative sanctions (in particular checks at "unusual" times), recording and
passing  on complaints  about environmental issues, and providing general  information on the
environment.
       Accompanying surveillance personnel at industrial sites is often a tricky issue,  both for the
police and the surveillants.  The Economic Offences Act  (Wet Economische Delicten) permits the
police to make checks even in cases where  there is (as yet) no suspect.
       Besides enforcing environmental laws, the police should also set an example with regard to
what goes on within their own organization and develop a certain degree of environmental awareness.
In order to realize this, various processes that go on within the police organization (supply of energy,
waste disposal,  means of surveillance, shooting range) have to be analysed, then standards need
to be set and maintained.

2,2    The tasks: policy choices

       Whether the police make use of the authority they have been given (for example, deciding at
what point to assist in industrial checks) depends on the policy to be followed;  the policy in its turn
is largely determined by  what has been agreed upon  in the various consultative bodies.  In general
the police should not, in principle, take the initiative and supervise and perform checks. These tasks
are  to be  carried out by surveillants  and specialized criminal services and detectives.  The most
important task of the police is to trace crimes,  a  task which has  both preventive and repressive
aspects.
       It is frequently thought that the role of the police is merely a repressive one. This is not true,
however; a police organization  with its roots firmly in  society has different rotes, depending on the
circumstances. This is the case too with the environment. The effectiveness of various police activities,
namely solving or preventing problems, is what should  be most important. When the police are asked
to participate  only at a very late stage (for example, in a fourth industrial check), the only sanction
they can apply is to institute a criminal investigation, and the environmental damage will already have
been done. The effectiveness, subsidiarity, and proportionality of the means are no longer subject to
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THtRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT


discussion. However, just as with other police tasks, the police should have the opportunity to choose
from a wide range of alternative sanctions to enforce environmental legislation. It is important that
their partners in-the field of law enforcement be aware of this.


3      INTERNAL STRUCTURE OF THE ORGANIZATION

       In this section, the internal structure of the police is discussed. First, the infrastructure of the
police organization is considered, and then the cultural aspects that play a role in the implementation
by the police of their task as environmental law enforcers are discussed.

3.1     Infrastructure

       In order for the police to be able to perform their relatively new task of environmental law
enforcement, a new infrastructure has to be developed.

3.1.1   Budget

       Since 1990 the NMP has made funds available to the police. In 1991, during a Co-ordinating
Police Council conference on the role of the police with regard to the environment, the heads of the
regional police forces in the Netherlands recommended that 4% of the total budget be allocated to
environmental law enforcement by 1995.

3.1.2  Training

       An important aspect of the measures relating to  the  infrastructure  of the police  is the
introduction of training courses. At the national  level, courses for specific groups have been set up
by the National Police Training Institute.
       During \'he 1991  conference mentioned  above, the heads of  the  regional police  forces
recommended that by 1996 all police officers should have undergone either a general or specialist
training in environment  issues.                         -   	

3.1.3  Computerization

       A second aspect is the need  for computerization.  A national study into the availability of
information on environmental issues has led to the development of an environmental "dictionary".
Every police force has been given the opportunity to implement  and consult this data collection.

3.1.4  Position in the organization as a whole

       Practically all police forces see the enforcement of environmental legislation as a fundamental
task of the police. In all police regions the funds allocated to the police under the NMP have been
used to create regional environmental bureaus to see to it that measures are taken and to co-ordinate
activities in the field of the environment.
       The activities of these bureaus include, for example,  setting up training courses, participating
in law enforcement activities, and executing measures to improve the environment (such as removing
car wrecks, taking away manure, closing down garages or       rubbish dumps, preventing illegal
refuse dumping and the dumping of chemical waste).
       The recent reorganization of the Dutch police force has led to the fact that in almost all police
regions de-specialization  seems to take the place of specialization, which is logical since in the past
new tasks were often implemented in  the same way. The new tasks facing  the police can only be
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successfully integrated into the basic functions of the police if the specialism currently available is
supportive in nature and not independent.

3.1.5  Criminal Intelligence Service

       In 1991 a pilot project was started in which four criminal intelligence services and the National
Criminal  Intelligence Service participated. The objective of the project was to improve the supply of
information  on the environment. The project's interim report concluded that new methods and
techniques for gathering information should be developed. The methods and techniques that currently
exist and  which  are particularly  suited  to  combating  traditional forms of crime  (such as
narcotics-related crimes) are only partly suitable for gathering information on environmental  issues.
One of the reasons for this is that these particular (traditional) forms of crime are closely interwoven
with the so-called upper world of private enterprise and governmental institutions.

3,1.6  International

       Studies conducted by the  National Criminal Intelligence  Service show that environmental
crimes are increasingly international in nature.  Since cross-border waste transports and dumpings
occur quite frequently, it is important that international networks are created and maintained. In Europe,
members of TREVI (an association of countries in the field of law enforcement) have agreed to draw
up a checklist (the so-called E-co form) and institute training courses on this very subject.
       An Interpol environmental crime working  group  has been  established, as have more
specialized working groups on specific issues (such as cross-border waste transport and the illegal
transport of endangered species).
       When these international police networks function  properly, they.will have to be linked to
international networks in which the Public  Prosecutor's Department and the government participate.

3.1.7  Participation in the law enforcement network

       When the  infrastructure  needed  to  enable the  police to effect their duties in  enforcing
environmental legislation is devised, attention will  also  have to  be paid to adapting the  internal
structure of the police  so that the latter can participate in the law enforcement network.

3.2   Cultural aspects

       In the above discussion,  various aspects have been mentioned which need to be taken into
account  when an infrastructure is devised for the implementation of the police's environmental task.
The cultural aspects related to this are  no less important. The idea that implementation of
environmental legislation by tine  police is just  mere hobbyism needs to be changed. Like  officers
involved in  narcotics  cases, the police should feel the need to  "score", and do their utmost to
prosecute cases in which chemical waste  is illegally dumped. It is questionable which of these illegal
activities is the more harmful to public health.
       However, less-serious forms of environmental crime, such as the occasional dumping of waste
in surface water, can easily compete with other, more frequent, forms of crime (such as burglaries)
in terms of their effect on society as a whole.
       Besides creating a feeling that activities aimed at preserving the environment are part of the
tasks of the police, and that performing these is pleasurable, attention has to be paid to the results
of  these activities. Traditionally,  the emphasis of police work has been on criminal  investigation;
drawing  up statements is still the  most widely used means of criminal investigation used by the police.
This might be different In the case of environmental law enforcement because what is most important
Is using  the most effective means. In many cases—for example those which involve illegally dumped
waste or the frequent  dumping of dangerous substances in surface water—administrative law may
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         575
offer better opportunities to successfully combat these kinds of crime. Here, the most important
aspect is removing the waste and preventing future illegal dumpings. The police will have to learn
not to resort automatically to the use of statements, but to consult competent authorities and try to
work out what the most effective solution to the environmental problem in question is.
4      EXPERIENCES OF THE POLICE IN THE LAW ENFORCEMENT NETWORK

       In the meantime, the police have gained some experience in enforcing environmental laws.
The following conclusions can be drawn from these experiences,
       Even when co-operating with other bodies, the police should perform their task of criminal
investigation "independently". Because the police participate in all kinds of consultative bodies, the
other participants in these bodies  might mistakenly begin to believe that the responsibilities and
authority of the police in the field of criminal intelligence work are also subjects for discussion. This
makes it necessary for the police to make clear its right to reserve the questioning of its criminal
intelligence work (though this obviously must continue to be the responsibility of the Department of
Public Prosecutions).
       The above consideration also  influences the way information is supplied. With regard to
information on administrative measures, for instance, there might be a two-way exchange, but with
regard to criminal intelligence this is virtually impossible (with the exception of certain matters dealt
with by the stringent conditions imposed by the Police Registers Act [Wet Politieregisters]). This
restriction largely determines the nature of the co-operation between those involved in environmental
law enforcement.
       The role of the police is interpreted in a different way in each of the governmental regions.
The idea that there is hardly any role for the police in the field of environmental law enforcement is
one still held by their law enforcement partners, who associate the task of the police with repressive
actions in response to very serious environmental crimes. That this does not do justice to the
effectiveness of the work of the police has been clarified in Section 2.2,
       Furthermore, when the police participate in consultative bodies like the ones described above,
they will have to make clear that they—in contrast to other specialist bodies—have tasks other than
the enforcement of environmental laws which also demand personnel and equipment. This, however,
should not deter the police from entering into agreements with their law enforcement partners and
accepting certain commitments.
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576         '              THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       srr

OUTLINE OF PROCEEDINGS VOLUME II
      The second volume of the Proceedings will contain the following subjects:
1     PREFACE
2     OPENING SPEECHES
      The full tejxt of the speeches at the opening of the Conference will be made available.
3     ADDITIONAL PAPERS
      Papers not available for printing in Proceedings Volume I or were submitted during the
Conference will be included in this part of the Proceedings,
4     TECHNICAL SUPPORT DOCUMENTS
      Technical support packages related to the Case Studies presented during the Principles of
Environmental Enforcement Workshops on Day 2 will be included in these Proceedings.
5     SUMMARIES OF THE THEME DISCUSSION SESSIONS AND WORKSHOPS ON
      INSTnunON-BUILDING(UNEP) AND ON SPECIAL TOPICS
      Facilitators and rapporteurs will provide a summary of the discussions during the plenary
sessions and workshops on Institution-Building (UNEP) and on Special Topics on Day 3, These
summaries will reflect  thoughts, ideas, and experiences exchanged as provided during the
discussions.
6     CLOSING REMARKS
      The full text of the closing remarks as presented by the Conference co-chairs will be made
available.
7     CONFERENCE EVALUATION
      The results of the evaluation will be included.
8     LIST OF PARTICIPANTS
      A list of participants attending the Conference will be Included.
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578                       THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                       573


MEMBERS OF THE EXECUTIVE PLANNING COMMITTEE

Dr. Adegoke Adegoroye                                              Tel: 234-9168-0308
Head of Enforcement & Inspectorate Department
Federal Environmental  Protection Agency
PMB265
Garki-Abuja, FCT
Nigeria

Mr. Mariano Palacios Alcocer                                          Tel: 525-589-5539
Federal Attorney                                                       Fax: 525-589-0775
Procuraduria Federal de Protecci6n
al Ambiente, SEDESOL
Boulevard Pfpila Numero 1
Tecamachalco, Naucalpan
53950, Estado de Mexico
Mexico

     Dr. Santiago Ofiate Laborde
     former Federal Attorney

     Mr. Mario Aguilar                                              Tel: 1 -202-728-1777
     Embajada de Mexico                                            Fax: 1 -202-728-1781
     Oficina de SEDESOL
     1911 Pennsylvania Avenue, NW
     Washington,  DC 20006
     USA

     Mr. Arturo Alcocer                                              Tel: 525-534-7559
     Assistant Federal Attorney for                                       Fax: 525-524-9352
     Social  Participation and Complaints
     Procuraduria Federal de Protecci6n
     ' alAmbienifi, SEDESOL
     Insurgentes Sur  1480, 7o. piso
     Barrio Actipan, Del. Benito Juarez
     03230, Distrito Federal
     Mexico

Mrs. Jacqueline Aloisl de Larderel                                     Tel: 331-4437-1450
Director, IE/PAG                                                      Fax: 331-4437-1474
United Nations Environmental Programme
39-43 Quai Andre Citroen
Paris Cedex 15  75739
France

Mr. William  M. Eichbaum                                             Tel: 1-202-778-9645
Vice President, International Environmental Quality                          Fax: 1-202-293-9345
World Wildlife Fund
1250 24th Street, NW
Washington, DC 20037-1175
USA

      Ms. Nancy Hopps                                              Tel: 1 -202-778-9716
      Project Officer                                                  Fax: 1 -202-293-9211
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580
THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
Mr. Steven A. Herman
Assistant Administrator
Office of Enforcement
U.S. Environmental Protection Agency
401 M Street, SW(LE-133)
Washington, DC 20460
USA

     Mr. Scott C. Fulton
     Deputy Assistant Administrator
     Office of Enforcement

     Ms. Cheryl Wasserman
     Chief, Compliance, Policy and Planning Branch
                                          Tel: 1-202-260-5145
                                          Fax:1-202-260-0500
                                          Tel: 1-202-260-4137
                                          Fax:1-202-260-0500
                                          Tel: 1-202-260-7550
                                          Fax: 1-202-260-7553
Ms. Nadine Levin
Office of Enforcement
Environment Canada
551 St. Joseph Boulevard
18th Floor P.V.M.
Hull, Quebec  K1A OH3
Canada

Dr. Jorge Litvak
Scientific Attach6
Embassy of Chile
1717 Massachusetts Avenue, NW
Suite 802
Washington, DC 20036
USA

Dr. Winston McCalla
40 East Street
Kingston
Jamaica

Mr. Pak Moestadji
State Ministry for Population and Environment
N, Medan Mendeka Barat 15
Jakarta 12440
Indonesia

Mr. Luis R. Padron
Direcci6n Genera! Sectorial de Vigilancia y Control Ambiental
Ministerio del  Ambiente y de los
Recursos Maturates Renovables
Piso 19, Torre Sur Centra Simon Bolfvar
Caracas
Venezuela
                                          Tel: 1-819-953-0331
                                          Fax:1-819-953-3459
                                          Tel: 1-202-588-0033
                                          Fax:1-202-588-0036
                                          Tel: 1-809-922-1217
                                          Fax:1-809-922-5202
                                           Tel: 6221-374-4563
                                           Fax: 6221-570-3365
                                            Tel: 582-408-1461
                                            Fax: 582-483-3190
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                        561


Ms. Sandra Urbiina Mohs                                                Tel: 506-55-14-92
Ministerio de Recursos Naturales,                                           Fax: 506-57-06-97
Energfay Mlnas
Buzdn 10104-1000
San Jose
Costa Rica

Mr. Pieter J. Vcrkerk                                                   Tel: 3170-339-4621
Directorate-Genera! for Environmental Protection                            Fax: 3170-339-1298
Inspectorate for the Environment
Ministry of Housing, Spatial Planning and
the Environment (VROM)
IPC680
P.O. Box 30945
2500 GX DEN HAAG
The Netherlands

     Mr. Jo Gerardu                                                   Tel: 3170-339-1166
     Directoratei-Genera! for Environmental Protection                      Fax: 3170-339-1300
     Inspectorate for the Environment
     Ministry of Housing, Spatial Planning and
     the Environment (VROM}
     IPC681
     P.O. Box 30945
     2500 OX DEN HAAG
     The Netherlands

     Mr. Rob Cilaser                                                   Tel: 3111 -803-3792
     RIMH/VROM                                                    Fax: 3111 -802-4126
     Ministry of Housing, Spatial Planning and
     the Environment (VROM)
     P.O. Box 7073
     4330 GB Middelburg
     The Netherlands

     Mr. Huub F. Kesselaar                                           Tel: 3170-339-1167
     Ministry of Housing, Spatial Planning and                             Fax: 3170-339-1300
     the Environment (VROM)
     1PC681
     P.O. Box 30945
     2500 GX DEN HAAG
     The Netherlands
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582                        THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
EXECUTIVE PLANNING COMMFTTEE STAFF

Ms. Cheryl Wasserman                                               Tel: 1 -202-260-7550
Chief, Compliance, Policy and Planning Branch                            Fax: 1-202-260-7553
U.S. Environmental Protection Agency
401 M Street, SW (LE-133)
Washington, DC 20460
USA

     Ms. Ann E. DeLong                                             Tel: 1-202-260-8870
     Ms. Maria T. Malave                                             Tel: 1-202-260-7341

Mr. JoGerardu                                                       Tel: 3170-339-1166
Directorate-General for Environmental Protection                           Fax: 3170-339-1300
Inspectorate for the Environment
Ministry of Housing, Spatial Planning and
the Environment (VROM)
IPC 681
P.O. Box 30945
2500 GX DEN HAAG
The Netherlands

Ms. Nancy Hopps                                                   Tel: 1 -202-778-9716
Project Officer                                                        Fax: 1 -202-293-9211
World Wildlife Fund
1250 24th Street, NW
Washington, DC 20037-1175
USA

     Logistics Coordinator:
      Ms. Trisha L. Hasch                                             Tel: 1 -617-674-7384
     Vice President and Manager                                       Fax: 1 -617-674-2906
      Conference Services
      Eastern Research Group, Inc.
      110 Hartwell Avenue
      Lexington, MA  02173-3198
      USA
 Cover design based on an original concept by Joke Krul, The Netherlands.
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THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT                         583


ACKNOWLEDGMENTS

The Third International Conference of Environmental Enforcement in Oaxaca, Mexico, was made
possible by the personal and  financial contributions of many organizations  and individuals. An
Executive Planning Committee (EPC), 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 enforcement arid to improve or develop domestic compliance
and enforcement programs. The Executive Planning Committee included representatives from U.S.
Environmental Protection Agency (U.S. EPA), the Netherlands Ministry of Housing, Spatial Planning
and the Environment (VROM),  the World Wildlife  Fund U.S. (WWF), United  Nations Environment
Program (UNEPIE/PAC), Mexico's Procuraduria Federal de Proteccion al Ambeinte (SEDESOL), and
Environment Ministries of Canada, Chile, Costa Rica, Venezuela, Jamaica, Nigeria,  and Indonesia.

The World Wildlife Fund U.S.  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: U.S. EPA, VROM, UNEP IE/PAC, and WWF. In addition to the conference
sponsors, funding of participants was gratefully received from Environment Canada for participants
from Africa and Asia, and from the U.S. Asia Environmental Partnership to participants from Asia. The
U.S. Agency for International Development also  contributed  to preparation  of  the Principles of
Environmental Enforcement workshop and technical support documents. Special hospitality also was
graciously offered by the government of Mexico as host country. In particular, we want to offer a note
of thanks to Mr. Arturo Alcocer for his generous support, his time and effort on behalf of SEDESOL,
to make this conference a success, and to the Oaxaca City Tourism Office and Cantera Tours for their
assistance and support in planning the conference logistics.

A centerpiece of this conference was the launching of several new international workshops, A special
acknowledgement to the World Wildlife Fund subcontractors Apogee Research (Ken Rubin, Principal;
Rick Sturgess; arcl Mark Corrales), and TLI Systems (Matt Low, Principal; Tiffin Shewmake; and Marda
Mayo) for the development of the five new Principles of Environmental Enforcement Workshop case
studies  and technical support documents with the primary technical support of Ms. Cheryl Wasserman
and other reviewers from the EPC and U.S. EPA. Special recognition for the development of the UNEP
IE/PAC workshop manual and training materials go to VROM/UNEP subcontractors PRC Environmental
Management Inc. (Firouz Rouani, Principal; Sue Patterson; Andy Johnson; and Mark  Evans), under the
direction of Jacqueline Alois! de Larderel and Rob Glasser and Jo Gerardu of VROM in cooperation
with U.S. EPA and an Advisory Group including Dr. Rene Altamirano,  SEDESOL, Mexico; Dr. Ossama
EI-Kholy, Egypt;  Mme. Odile Gauthier Natta, Ministrere de Environment, France; Mr. Jo Gerardu, VROM,
the Netherlands; Mr. Rob Glaser, VROM, the Netherlands; Mr. Zbigniew Kamienski, State Inspectorate
for Environmental Protection, Poland; Mrs. Jacqueline Alois! de Larderel and Ms. Nancy Bennett, UNEP,
IE/PAC;  Mr. Sun IJ, Environmental Law !nstitute/PAC; and Ms. Cheryl Wasserman, U.S. EPA.

Finally,  a note of thanks to  the conference speakers, topic experts, moderators, facilitators, and
rapporteurs, and those who volunteered to prepare papers, all of whom are colleagues making a
special  effort to share their experiences and help facilitate our exchanges at the conference. Special
thanks to those contributing materials for the conference exhibits, and to EPA's Region 6 staff in Dallas,
Texas, for the display on inspection equipment.

Primary staff support to the Executive Planning Committee and to the World Wildlife Fund was provided
by Mr. Jo Gerardu of VROM and Ms. Cheryl Wasserman of U.S. EPA who were responsible for creating
and staffing the Executive Planning Committee, drafting the conference program and materials, editing
the proceedings, and preparing concluding remarks. Nancy Hopps (WWF), Maria Malave (U.S. EPA),
and Jo  Gerardu (VROM) served as project managers under the funding agreements. A special note
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584                         THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT
of appreciation for the excellent support for complex EPC meeting and conference logistics, assistance
to the EPC in researching possible candidates for conference participant invitations, communications
with officials from over 100 countries and organizations, and preparation of the proceedings for
publication,  directed by WWF subcontractor Eastern Research Group,  Inc.  (Ms. Trisha Hasch,
Principal),
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